State v. Raul Herrera Rivera

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
March 7, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2022AP1995-CR Cir. Ct. No. 2021CF1227

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

RAUL HERRERA RIVERA,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Dane County:
ELLEN K. BERZ, Judge. Affirmed.

Before Blanchard, Graham, and Nashold, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Raul Herrera Rivera appeals a judgment of
conviction for operating a motor vehicle with a prohibited alcohol concentration
No. 2022AP1995-CR

following a jury trial. He argues that the circuit court erred in rejecting pretrial
suppression motions and separately erred in various ways at trial.

¶2 The pretrial motions all relate to the fact that Herrera Rivera was
pulled over by a police officer for speeding and the officer extended the traffic
stop to investigate the potential offense of operation of a motor vehicle while
intoxicated (“OWI”).1 Herrera Rivera argues that the circuit court erred in
concluding that the officer had the reasonable suspicion needed to extend the
scope of the traffic stop. In the alternative, Herrera Rivera argues that the officer
lacked probable cause to arrest him for driving with a prohibited blood alcohol
concentration. Herrera Rivera further contends that the court erred in rejecting his
motion based on the procedure used by the officer to obtain the search warrant that
provided authority for a blood draw.

¶3 Regarding trial events, Herrera Rivera argues that the circuit court
erred in the following ways: denying his motion to strike a member of the jury
venire for cause, which forced him to use a peremptory strike; limiting defense
counsel’s cross examination of an expert witness called by the prosecution; and
permitting the prosecution to elicit from a witness several references to Rivera
Herrera having a “restriction” that set his prohibited alcohol concentration at .02
grams per 100 milliliters.

1
We follow the convention of using “OWI” as an umbrella term that encompasses both
operating while under the influence of an intoxicant, contrary to WIS. STAT. § 346.63(1)(a) (2021-
22), and operating with a prohibited alcohol concentration, contrary to § 346.63(1)(b). As
necessary, we use separate references for the distinct charges of operating a motor vehicle while
under the influence and operating with a prohibited alcohol concentration.

All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

2
No. 2022AP1995-CR

¶4 We reject each of Herrera Rivera’s arguments and accordingly
affirm.

BACKGROUND

¶5 The following is a brief overview of the facts, with additional detail
provided as needed in the Discussion section below. A police officer observed a
speeding car and pulled it over in the City of Middleton. Herrera Rivera was
driving and there were two passengers. After observing some initial indications
that Herrera Rivera had been drinking, the officer asked if anyone in the car had
been drinking. All denied drinking. The officer took Herrera Rivera’s license
back to his squad car, looked up his driving records, and learned that Herrera
Rivera had prior OWI convictions and as a result was subject to a prohibited
alcohol concentration of .02 grams per 100 milliliters.2

¶6 The officer had Herrera Rivera perform field sobriety tests, during
which the officer observed signs that Herrera Rivera was impaired. Herrera
Rivera declined to take a preliminary breath test. The officer arrested him for
allegedly operating while under the influence. The officer read Herrera Rivera the
“informing the accused” form, and Herrera Rivera declined to submit to a
warrantless test of his blood. See WIS. STAT. § 343.305(3)(a), (4).

¶7 The officer applied by phone for a search warrant to test Herrera
Rivera’s blood. Dane County Circuit Court Judge Juan Colás granted the

2
The default prohibited alcohol concentration for vehicle operators in Wisconsin is .08
grams per 100 milliliters, but for Herrera Rivera at the time of the stop it was .02 because he had
three prior OWI convictions. See State v. Diehl, 2020 WI App 16, ¶3, 391 Wis. 2d 353, 941
N.W.2d 272; WIS. STAT. §§ 340.01(46m), 346.01(1), 346.63(1)(b).

3
No. 2022AP1995-CR

application.3 Herrera Rivera’s blood was drawn at 2:26 a.m. and the result
recorded was a blood alcohol concentration of .086.

¶8 Herrera Rivera was charged with operating a motor vehicle while
under the influence and with a prohibited alcohol concentration, both as a fourth
offense.4

¶9 Herrera Rivera moved to suppress evidence derived from the traffic
stop. Specifically, as pertinent to the issues raised on appeal, he argued that the
officer lacked reasonable suspicion necessary to extend what started as a speeding
investigation that justified the stop into an OWI investigation, which occurred at
the point when the officer asked Herrera Rivera if anyone in the car had been
drinking.

¶10 Separately, Herrera Rivera argued that evidence recovered following
his arrest should be suppressed because the arrest was not supported by probable
cause. Probable cause was lacking, he argued in part, because the officer
improperly administered the field sobriety tests, rendering unreliable the observed
results of the field sobriety tests.

¶11 The circuit court held a hearing on Herrera Rivera’s motion at which
the officer was the only witness. The court denied the motion.

3
The Honorable Ellen K. Berz decided the pretrial motions and presided over the trial in
this matter.
4
Herrera Rivera was also charged with failing to install an ignition interlock device on
all vehicles he operated. See WIS. STAT. § 343.301(1g)(a)2.b., (am). He pleaded guilty to this
charge and was sentenced based on the resulting conviction before proceeding to trial on the OWI
charges.

4
No. 2022AP1995-CR

¶12 Herrera Rivera filed a separate motion to suppress the blood-draw
evidence obtained pursuant to the search warrant on the ground that the
application and issuance of the warrant did not comply with pertinent procedures.
The circuit court denied this motion without taking additional evidence.5

¶13 At a jury trial, the prosecution called as witnesses the arresting
officer, the hospital medical technician who drew Herrera Rivera’s blood, and an
analyst from the state crime laboratory who tested the blood. The prosecutor
argued in part that the results of the blood testing, which were based on a blood
draw that occurred fewer than two hours following the officer’s initial contact with
Herrera Rivera, established that he was driving while under the influence and with
a prohibited alcohol concentration. Defense counsel argued that the evidence
regarding Herrera Rivera’s driving and conduct demonstrated that he was sober,
and that the blood test results did not necessarily show that he had a prohibited
alcohol concentration while operating the car. The jury found Herrera Rivera
guilty on both OWI counts.

¶14 The circuit court entered a judgment of conviction for operating a
motor vehicle while under the influence of an intoxicant. Herrera Rivera appeals.

DISCUSSION

I. Motion to Suppress Based on Traffic Stop

¶15 Herrera Rivera argues that the circuit court erred in concluding that
police: (1) had reasonable suspicion to extend the scope of the traffic stop to

5
Herrera Rivera moved the circuit court to reconsider its denial of the second motion to
suppress. The circuit court denied this motion as well.

5
No. 2022AP1995-CR

investigate a potential OWI offense, and (2) had probable cause to arrest Herrera
Rivera. We address these arguments in turn after providing pertinent legal
standards and additional background from the motion hearing.

¶16 In this context we uphold the circuit court’s findings of fact unless
they are clearly erroneous and we independently determine whether the facts meet
the pertinent constitutional standard. See State v. Adell, 2021 WI App 72, ¶14,
399 Wis. 2d 399, 966 N.W.2d 115.

A. Additional Background

¶17 The officer testified to the following at the suppression hearing. One
night at approximately 12:42 a.m., the officer was in his squad car when he
observed a car traveling 45 miles per hour down a street with a posted speed limit
of 30. The officer followed the car. He observed it “weaving within its own lane
… and … failing to maintain a consistent speed,” as indicated by the fact that its
brake lights came on “frequently,” followed by “slight acceleration[s] of speed.”

¶18 The officer pulled the car over, walked to the driver’s window, and
made contact with Herrera Rivera, the driver, who had two passengers. The
officer informed Herrera Rivera that he had been pulled over for speeding.
“[A]lmost immediate[ly]” during this initial contact, the officer smelled the odor
of alcohol “coming from the vehicle,” saw that Herrera Rivera’s eyes were
“glossy” (that is, “watery”) and “bloodshot.” The officer asked Herrera Rivera
where he and his passengers were coming from and where they were headed.
Herrera Rivera responded that they were headed to a bar in another part of
Middleton. According to the officer, Herrera Rivera’s speech was “slightly
slurred,” although the officer acknowledged that Herrera Rivera spoke with an

6
No. 2022AP1995-CR

accent and that the officer was not familiar with his “natural speech patterns.”
Herrera Rivera gave the officer his driver’s license during this initial contact.

¶19 The officer asked if anyone in the car had been drinking. After
briefly conferring with the passengers, Herrera Rivera responded that none of
them had been drinking.

¶20 The officer returned to his squad car and used Herrera Rivera’s
driver’s license to look up records related to him that are maintained by the
Wisconsin Department of Transportation. These records reflected that Herrera
Rivera: had three prior OWI convictions; was required to use an ignition interlock
device; and was subject to a .02 prohibited alcohol concentration limit. The
officer had already observed that the car Herrera Rivera was driving did not have
an ignition interlock device installed.

¶21 The officer returned to the car and asked Herrera Rivera to step out
in order to undergo field sobriety tests. After Herrera Rivera got out of the car, the
officer could smell alcohol coming from Herrera Rivera specifically. The officer
administered the following tests: horizontal gaze nystagmus; walk-and-turn; and
one-leg-stand. The officer observed multiple clues of impairment with each test.
The officer requested that Herrera Rivera undergo a preliminary breath test, which
Herrera Rivera refused. The officer arrested him.

¶22 Through cross-examination of the officer, counsel for Herrera Rivera
adduced testimony demonstrating that, in some respects, the way in which the
officer administered the field sobriety tests deviated from the officer’s training.
Counsel also elicited testimony regarding facts present in this case that could have
clouded the accuracy of the tests in demonstrating impairment. For example, the
officer testified on cross-examination that, before undergoing the tests, Herrera

7
No. 2022AP1995-CR

Rivera indicated that he had suffered injuries in the past that could affect his
ability to perform some of the tests. The officer acknowledged that he did not
know whether Herrera Rivera had suffered injuries that might have affected the
test results.

¶23 The circuit court concluded that the officer had reasonable suspicion
to make an inquiry related to a possible OWI violation at the point at which the
officer asked whether anyone in the car had been drinking. The court reasoned
that the officer would reasonably want to know from whom the smell of alcohol
was emanating, and that asking all three car occupants about their drinking that
night was a reasonable way to investigate. The court also determined that the
information that the officer obtained about Herrera Rivera’s traffic history and .02
prohibited alcohol concentration restriction could be counted toward reasonable
suspicion because the officer obtained this information as a standard part of a
traffic stop.

¶24 The circuit court further concluded that the officer had probable
cause to arrest for an OWI offense. The court determined that the officer had
observed multiple driving behaviors that supported a reasonable inference of
impairment, along with the smell of alcohol that the officer later attributed to
Herrera Rivera. The circuit court found, based on its review of the officer’s body
camera video of the traffic stop, that Herrera Rivera’s speech was slurred to the
point that the court could not understand what he was saying at points in the video.
The court further determined that the flaws in the officer’s administration of the
field sobriety tests did not deprive the tests of any weight.

8
No. 2022AP1995-CR

B. Extension of Traffic Stop

¶25 Herrera Rivera argues that the officer unreasonably extended the
scope of the traffic stop from investigating speeding to investigating a potential
OWI offense. Specifically, Herrera Rivera contends that this occurred when the
officer asked him whether he had been drinking. At that time, according to
Herrera Rivera, the officer lacked reasonable suspicion that an OWI offense had
occurred, and therefore the circuit court erred in failing to suppress evidence
gathered from that point forward. The State argues in part that, based on the
evidence presented at the suppression hearing, the officer had reasonable suspicion
to expand the mission of the stop when he asked about drinking. We assume
without deciding that the officer extended the mission of the traffic stop for Fourth
Amendment purposes at the moment identified by Herrera Rivera. However, for
reasons we now explain, we agree with the State that the officer had reasonable
suspicion at that time.6

¶26 Given that there is no dispute that it was reasonable for the officer to
conduct a traffic stop of Herrera Rivera to investigate and potentially issue a ticket
or warning for speeding, and further given our assumption that the officer’s initial
question about alcohol consumption extended the stop for Fourth Amendment
purposes, we apply the following standards:

“If, during a valid traffic stop, the officer becomes aware of
additional suspicious factors which are sufficient to give
rise to an articulable suspicion that the person has
committed or is committing an offense or offenses separate

6
The State also argues that, under the circumstances, the time it took for the officer to
ask whether any of the car’s occupants had been drinking did not extend the traffic stop in a
constitutionally material way. We do not address this argument or Herrera Rivera’s reply to it
because we conclude that the officer had reasonable suspicion when he asked this question.

9
No. 2022AP1995-CR

and distinct from the acts that prompted the officer’s
intervention in the first place, the stop may be extended and
a new investigation begun. The validity of the extension is
tested in the same manner, and under the same criteria, as
the initial stop.”

Adell, 399 Wis. 2d 399, ¶16 (quoted source omitted). Reasonable suspicion must
be “‘grounded in specific articulable facts and reasonable inferences from those
facts, that an individual is or was violating the law.’” State v. Colstad, 2003 WI
App 25, ¶8, 260 Wis. 2d 406, 659 N.W.2d 394 (quoted source and brackets
omitted). Police are “not required to rule out the possibility of innocent behavior”
in determining if there is reasonable suspicion to conduct an investigative stop or
extend the scope of its mission. See id.; see also Adell, 399 Wis. 2d 399, ¶30. In
addition, we are to apply “common sense” in determining “what constitutes
reasonableness” under the Fourth Amendment: “What would a reasonable police
officer reasonably suspect in light of his or her training and experience.” State v.
Waldner, 206 Wis. 2d 51, 56, 556 N.W.2d 681 (1996). “The reasonableness of a
stop is determined based on the totality of the facts and circumstances.” State v.
Post, 2007 WI 60, ¶13, 301 Wis. 2d 1, 733 N.W.2d 634.

¶27 The following facts readily support the conclusion that the officer
here had reasonable suspicion of an OWI offense when he asked Herrera Rivera
whether anyone had been drinking. At 12:42 a.m., it was not yet bar time, but it
was getting close. The officer observed Herrera Rivera’s car travelling
approximately 15 miles per hour above the speed limit, weave inside of its lane,
and engage in erratic breaking before stopping at a red light. See Post, 301
Wis. 2d 1, ¶¶25-26, 36 (weaving within a single lane and time of night can
contribute to reasonable suspicion of intoxicated driving); Adell, 399 Wis. 2d 399,
¶25 (although less indicative of intoxicated driving than other forms of risky
driving, officer could consider speeding as a sign that driver was operating with

10
No. 2022AP1995-CR

prohibited alcohol concentration). Immediately after making contact with Herrera
Rivera, the officer saw that his eyes were “glossy” and “bloodshot,” and the
officer smelled the odor of alcohol coming from inside the car. See State v.
Tullberg, 2014 WI 134, ¶35, 359 Wis. 2d 421, 857 N.W.2d 120 (“a law
enforcement officer may consider bloodshot and glassy eyes to be one of several
indicators of intoxication”); Adell, 399 Wis. 2d 399, ¶¶19, 23 (odor of intoxicants
inside vehicle can support reasonable suspicion of driving with prohibited alcohol
concentration).

¶28 The circuit court’s finding that Herrera Rivera’s speech was slurred
further some additional support for the conclusion that the officer had reasonable
suspicion of an OWI offense. Herrera Rivera argues that the body camera video
establishes that his speech was not slurred at all and therefore the circuit court
clearly erred in making this finding. In our own review of the video, it is not clear
whether Herrera Rivera’s speech was slurred or not. Given this, we cannot say
that the circuit court clearly erred in interpreting the audio from the video to detect
slurring, nor can we conclude that the court could not credit the testimony of the
officer that he detected slight slurring. Under these circumstances, Herrera Rivera
has not established clear error, although given both the officer’s testimony on this
point and what we discern from the video it could not count for much in the
analysis because the slurring would have been slight.

¶29 Herrera Rivera emphasizes that some of his driving conduct—e.g.,
his obeying a stop light and promptly pulling over when the officer activated the
squad car’s emergency lights—did not support the inference that Herrera Rivera
was committing an OWI offense. It is true that these specific facts do not support
reasonable suspicion of drunk driving, but neither do they undermine the
reasonable inference of drunk driving supported by the facts we note above.

11
No. 2022AP1995-CR

C. Probable Cause to Arrest

¶30 Herrera Rivera argues that the circuit court erred in concluding that
the officer had probable cause to believe that Herrera Rivera had committed an
OWI offense justifying the officer’s decision to arrest him without a warrant. See
State v. Blatterman, 2015 WI 46, ¶29, 362 Wis. 2d 138, 864 N.W.2d 26
(“‘probable cause to arrest refers to that quantum of evidence within the arresting
officer’s knowledge at the time of the arrest that would lead a reasonable law
enforcement officer to believe that the defendant was operating a motor vehicle at
a prohibited alcohol concentration’” (quoted source and alteration marks
omitted)). Specifically, Herrera Rivera argues that the results of the field sobriety
test should have no weight due to defects in the way the officer administered the
tests, and that Herrera Rivera’s refusal to take a preliminary breath test should also
be given no weight. The State argues that the field sobriety testing and Herrera
Rivera’s refusal can be considered and support the conclusion that there was
probable cause to arrest. But the State further argues in the alternative that there
was probable cause even without considering these facts. We conclude that,
assuming without deciding that the preliminary breath test refusal would not
support probable cause, the field sobriety testing provides some support. We

12
No. 2022AP1995-CR

further conclude that the testing and other relevant indicia provided probable cause
to arrest for prohibited alcohol concentration.7

¶31 In addition to the signs of intoxication noted in our discussion of the
stop-extension issue, at the time of arrest the officer was aware of additional
evidence that Herrera Rivera had been driving with a prohibited alcohol
concentration. Significantly, before conducting the field sobriety tests, the officer
learned that Herrera Rivera had prior OWI convictions and was subject to a
prohibited blood alcohol concentration of .02. See Blatterman, 362 Wis. 2d 138,
¶¶36-38 (“Police may properly consider prior convictions in a probable cause
determination” and they are “especially relevant” to probable cause to arrest for a
prohibited alcohol concentration when the prior convictions reduce the prohibited
threshold to .02). In addition, after Herrera Rivera got out of the car to undergo
field sobriety testing, the officer determined that Herrera Rivera in particular
smelled of alcohol.

¶32 Moreover, Herrera Rivera fails to show that the circuit court clearly
erred in finding that the results of the field sobriety tests provided at least some

7
We note that the parties do not address on appeal one ground on which the circuit court
appeared to conclude that there was probable cause, which we also do not address. The court
concluded that there was probable cause based on a violation of the requirement that Herrera
Rivera drive a vehicle that has an ignition interlock device installed, a restriction that would have
been known to the officer at the time of the arrest. Herrera Rivera’s counsel said to the circuit
court that he was “not challenging the probable cause to arrest for an IID violation.” Despite that
statement, counsel also argued that for police “[t]o request a blood draw from Mr. Herrera Rivera
[following arrest],” they “would need probable cause that he committed an impaired-driving
offense.” Because neither side addresses the apparent ignition interlock device violation as a
basis to affirm, we do not address this topic further. Instead, we reject Herrera Rivera’s probable
cause argument for the reasons stated in the text.

13
No. 2022AP1995-CR

support for probable cause to arrest.8 The court was presented with detailed
arguments regarding how the tests as administered by the officer deviated from
how officers are trained to give the tests, in addition to testimony that Herrera
Rivera told the officer that he had injuries that affected his ability to balance. The
court found that the deviations were not significant enough to deprive the tests’
results of meaning. On appeal, Herrera Rivera summarizes the same defects, but
without establishing how they are incompatible with the court’s finding that the
tests’ results added some evidentiary weight in support of probable cause. Further,
the officer was not required to infer that any difficulty Herrera Rivera had with his
balance was caused by something other than impairment. See Tullberg, 359
Wis. 2d 421, ¶35 (officer weighing whether there is probable cause may consider
indicia of intoxication that could have an innocent explanation).

II. Search Warrant Application Procedure

¶33 Herrera Rivera argues that the circuit court erred in denying, without
holding an evidentiary hearing, his motion to suppress based on the officer’s
application for the search warrant to draw Herrera Rivera’s blood. Specifically, he
contends that his motion alleged with sufficient particularity that the procedures
required by WIS. STAT. § 968.12 were not followed. The suppression motion
alleged the following: the officer emailed an unsworn affidavit to the circuit court
judge and then called the judge regarding the warrant; and the issued warrant
indicated that the judge swore in the officer during a phone call that was not
recorded. According to Herrera Rivera’s motion, the phone call in which the

8
As Herrera Rivera acknowledges, defects in the administration of the tests go to their
evidentiary weight and not their admissibility. See City of West Bend v. Wilkens, 2005 WI App
36, ¶14, 278 Wis. 2d 643, 693 N.W.2d 324.

14
No. 2022AP1995-CR

officer swore in the officer should have been recorded, based on a provision of the
procedure for applying for a warrant “upon oral testimony” in § 968.12(3) and
case law relating to § 968.12(3). See § 968.12(3)(d); State v. Raflik, 2001 WI
129, ¶¶2-5, 15, 52, 248 Wis. 2d 593, 636 N.W.2d 690. Herrera Rivera argues that,
if true, these allegations placed a burden on the prosecution to “reconstruct[]” the
record of the unrecorded call. He further argues that, if the prosecution could not
show by a preponderance of the evidence that a reliably reconstructed record
established probable cause, the evidence obtained pursuant to the warrant must be
suppressed. See Raflik, 248 Wis. 2d 593, ¶57 (suppression of evidence seized
pursuant to warrant should not be suppressed when based on reconstructed record
of telephonic application that a preponderance of the evidence establishes was
reliable and the application shows probable cause). We agree with the State that
the circuit court appropriately denied Herrera Rivera’s motion without a hearing
based on how the pertinent provisions of § 968.12 apply to facts alleged in the
motion.

¶34 A defendant is entitled to an evidentiary hearing for purposes of
developing a factual record to support a pretrial motion when all of the following
“‘satisfy the court of a reasonable possibility that an evidentiary hearing will
establish the factual basis on which the defendant’s motion may prevail’”: “‘the
motion, alleged facts, inferences fairly drawn from the alleged facts, offers of
proof, and defense counsel’s legal theory.’” State v. Velez, 224 Wis. 2d 1, 13, 589
N.W.2d 9 (1999) (quoted source omitted). Allegations that fail to raise a material
question of fact do not require the circuit court to hold a hearing. See id. at 17.
We review de novo whether the defendant has met the burden necessary to require
the circuit court to hold an evidentiary hearing. See id. at 18. If no hearing is
required, the circuit court exercises its discretion in determining whether to hold a

15
No. 2022AP1995-CR

hearing anyway. See id. Herrera Rivera’s motion also requires the interpretation
of WIS. STAT. § 968.12, which calls for de novo review on appeal. See State v.
Stewart, 2018 WI App 41, ¶18, 383 Wis. 2d 546, 916 N.W.2d 188.

¶35 We begin with WIS. STAT. § 968.12(2), which is the provision that
Herrera Rivera’s motion alleged was used here. Subsection (2) covers
applications for a warrant based on an affidavit. It states in pertinent part that:

A search warrant may be based upon sworn
complaint or affidavit, or testimony recorded by a
phonographic reporter or under sub. (3)(d), showing probable
cause therefor. The … affidavit … may be upon
information and belief. The person requesting the warrant
may swear to the … affidavit before a … judge, or a judge
may place a person under oath via telephone …, without
the requirement of face-to-face contact, to swear to the
complaint or affidavit. The judge shall indicate on the
search warrant that the person so swore to the complaint or
affidavit.

On its face, sub. (2) does not require that a phone call between the applicant and
the reviewing judge must be recorded—telephonically recorded testimony is
described as one means of applying for a warrant separate from a “sworn
complaint or affidavit.”

¶36 Here, Herrera Rivera alleged that the officer submitted an affidavit
applying for a warrant and that the subsequently issued warrant indicated that it
was “sworn to by telephone.” Moreover, the warrant indicates that the judge
issued the warrant on probable cause “[b]ased upon the affidavit.” Assuming
Herrera Rivera’s allegations are true, they appear to demonstrate that the
procedural requirements of WIS. STAT. § 968.12(2) were satisfied.

¶37 Herrera Rivera’s argument to the contrary is based on a recording
requirement described in § 968.12(3). Subsection (3) authorizes, in pertinent part,

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No. 2022AP1995-CR

the issuance of search warrants “based upon sworn oral testimony communicated
to the judge by telephone … under the procedure described” in the other
provisions of sub. (3). See § 968.12(3)(a). Under § 968.12(3)(d),

[w]hen a caller informs the judge that the purpose of the
call is to request a warrant, the judge shall place under oath
each person whose testimony forms a basis of the
application and each person applying for the warrant. The
judge or requesting person shall arrange for all sworn
testimony to be recorded either by a court reporter or by
means of a voice recording device. The judge shall have
the record transcribed. The transcript, certified as accurate
by the judge or reporter, as appropriate, shall be filed with
the court.

¶38 Herrera Rivera argues that the telephonic swearing in of an officer,
followed by the officer swearing to the truthfulness of the affidavit under WIS.
STAT. § 968.12(2), constitutes “sworn oral testimony communicated to the judge
by telephone” upon which a warrant “may be based” under the procedure in
§ 968.12(3). See § 968.12(3)(a). However, this relies on an unreasonable
interpretation of § 968.12(2) and (3), viewed together. It is true that these
subsections deal substantively with the same topic—namely, the application for
search warrants—and they overlap on some procedural points. For example, as
noted, sub. (2) recognizes that a warrant application can be based on the recording
of testimony as specified in § 968.12(3)(d). Yet the only reasonable interpretation
of these provisions as a whole is that relying on recorded testimony versus a sworn
affidavit are separate procedures for establishing the probable cause needed to
procure a search warrant. Herrera Rivera’s purported importation of
§ 968.12(3)(d) into the § 968.12(2) procedure would essentially collapse the
specific requirements of one procedure into the other.

¶39 The “sworn oral testimony” on which a warrant may be based—as
referenced in WIS. STAT. § 968.12(3)(a) when interpreted in conjunction with

17
No. 2022AP1995-CR

§ 968.12(3)(d)—is a reference to the officer’s allegations of fact that serve as the
basis for the judge to assess probable cause for obtaining a warrant. See
§ 968.12(3)(d) (“When a caller informs the judge that the purpose of the call is to
request a warrant, the judge shall place under oath each person whose testimony
forms a basis of the application and each person applying for the warrant.”
(emphasis added)). This contrasts with the more limited purpose of swearing to
the truthfulness of an affidavit under § 968.12(2). The purpose of this aspect of
subsection (2) is to allow for the applicant to swear to the truth of the separate,
substantive allegations contained in an affidavit. There is no need for a recording
of the phone call in which the judge swears in the officer, so long as the judge
indicates on the warrant that the officer was sworn in and has attested to the truth
of the averments in the affidavit and the separate substantive allegations in the
affidavit serve to establish probable cause. Under these circumstances, contrary to
Herrera Rivera’s motion and argument on appeal, the record will contain the
averments of the officer, which can be scrutinized for purposes of pretrial motions
based on the Fourth Amendment’s warrant requirement and on appeal.9

9
Based on the requirement that a circuit court exercising its discretion as to whether to
hold a hearing “must take into consideration the record, motion, counsel’s arguments and offers
of proof, and the law,” see State v. Velez, 224 Wis. 2d 1, 18, 589 N.W.2d 9 (1999), Herrera
Rivera argues that the circuit court here did not properly exercise its discretion in denying his
motion without holding a hearing because the court failed to consider the record. We see no
room for such an argument. For the reasons noted in the text, the allegations in Herrera Rivera’s
motion depended on an erroneous statutory interpretation and thus failed to join an issue of fact
that could be addressed in a hearing. It is true that in denying the motion the court adopted,
without elaboration, the reasoning that was reflected in the State’s brief, and it also true that the
State’s brief did not analyze pertinent provisions of WIS. STAT. § 968.12. Nonetheless, the
reasoning of the State’s brief makes reference to the pertinent portions of the record, and the
circuit court’s order states that it is based on “the record in this case.” Herrera Rivera fails to
show that the circuit court’s decision not to hold the hearing was an erroneous exercise of
direction.

18
No. 2022AP1995-CR

III. Alleged Trial Errors

A. Motion to Strike Juror

¶40 Herrera Rivera argues that the circuit court erred in denying his
motion to strike a prospective juror (“the potential juror”) for cause after the
potential juror expressed doubt during voir dire about her ability to impartially
weigh the testimony of a police officer. He further contends that this error was not
harmless. See State v. Sellhausen, 2012 WI 5, ¶40, 338 Wis. 2d 286, 809 N.W.2d
14 (circuit court’s failure to excuse venire member who should have been excused
is harmless if defendant receives a “fair and impartial” jury). His argument is that
it was not harmless because, although he was able to use a peremptory strike to
keep the potential juror off the jury, the result was that two others who were
empaneled (“the two empaneled jurors”) were biased against his defense. We
struggle to understand multiple premises in his biased-juror argument, but we
reject it for at least the following reason. The argument fails to apply pertinent
legal standards regarding juror bias to the statements that the two empaneled jurors
made during voir dire that Herrera Rivera now argues showed that they were
biased. See State v. Lepsch, 2017 WI 27, ¶¶21-22, 374 Wis. 2d 98, 892 N.W.2d
682 (describing different categories of juror bias). We now provide additional
background and explain our conclusion.

¶41 Herrera Rivera moved to strike the potential juror after she said
during voir dire that she had an “affinity for the badge” and could not “guarantee
… 100 percent” that she could be impartial with respect to an officer’s testimony.
On the other hand, she also repeatedly said that she would try to be impartial.
After the court denied Herrera Rivera’s motion to strike her for cause, Herrera
Rivera used a peremptory strike to keep her off the jury.

19
No. 2022AP1995-CR

¶42 Turning to the two empaneled jurors who Herrera Rivera contends
were biased, both said during voir dire that it would be difficult for them to doubt
the accuracy of a blood test result. Defense counsel asked the two empaneled
jurors whether they would “be able to consider the possibility” that the test result
was “not … accurate” “[i]f there[] [was] reason to believe [the test] wasn’t done
properly.” One of the two responded, “Maybe.” The other said that, because the
“people who are doing the test are trained on it,” he would have to be presented
with a reason to doubt its accuracy; doubt would not enter his “mind instantly,”
apparently meaning that it would not enter his mind without first hearing evidence
of a problem.

¶43 Herrera Rivera fails to provide a legally supported argument that the
statements of the two empaneled jurors, taken as a whole, demonstrate that they
were biased. See id., ¶21 (“‘To be impartial, a juror must be indifferent and
capable of basing his or her verdict upon the evidence developed at trial.’” (quoted
source omitted)). Indeed, he does not identify the category of bias he is alleging
was present here. See id., ¶22. The two empaneled jurors ultimately expressed an
openness to weighing the evidence presented regarding the accuracy of the blood
test results, including considering and possibly crediting evidence that something
about the test process “wasn’t done properly.” Herrera Rivera points out that, as
addressed in more detail below, the circuit court limited his ability at trial to elicit
testimony about possible ways that the blood test of Herrera was not “properly”
done, but that involved rulings distinct from juror bias issues and Herrera Rivera
fails to articulate a legally supported argument demonstrating juror bias.

20
No. 2022AP1995-CR

B. Limited Cross Examination of Expert

¶44 Herrera Rivera argues that the circuit court erroneously exercised its
discretion in limiting in two ways the scope of his cross examination of the state
crime lab analyst called by the prosecution: (1) the court allegedly prohibited
Herrera Rivera from posing to the analyst any hypothetical situations that could
account for Herrera Rivera’s blood test results in a way that would be consistent
with his not operating with a prohibited alcohol concentration; and (2) the court
restricted his ability to examine the analyst regarding the potential for airborne
microbes to contaminate the blood sample, potentially rendering the test results
unreliable. We conclude that Herrera Rivera fails to show that the circuit court
erred.

¶45 We review the circuit court’s decision to limit cross examination for
an erroneous exercise of discretion. State v. Rhodes, 2011 WI 73, ¶¶22-23, 336
Wis. 2d 64, 799 N.W.2d 850. We will uphold the court’s rulings when it reviews
the relevant facts, applies a proper standard of law, uses a rational process, and
reaches a reasonable conclusion. Id.

¶46 Relevant to both of Herrera Rivera’s arguments on this issue is a
general rule regarding the use of hypotheticals by expert witnesses. The general
rule is that circuit courts have discretion to exclude expert testimony regarding
hypotheticals that are based on assumed facts that do not have a basis in the
record. See State v. Berg, 116 Wis. 2d 360, 368, 342 N.W.2d 258 (Ct. App. 1983)
(“Hypothetical questions must be based on facts which have been offered as
evidence.”); see also id. (“Whether opinion testimony should be admitted is a
matter left to the trial court's discretion.”).

21
No. 2022AP1995-CR

¶47 With this background, we turn to Herrera Rivera’s argument about
hypothetical explanations for his blood test results. We agree with the State that
his argument fails because he was ultimately able to elicit testimony from the
analyst along the lines that Herrera Rivera now argues he was prevented from
pursuing. See State v. Giese, 2014 WI App 92, ¶¶12, 28, 356 Wis. 2d 796, 854
N.W.2d 687 (defendant generally “free to challenge the accuracy of [an] expert’s
assumptions” including using “competing scenarios” or inferences to challenge
assumptions of toxicologist that defendant had no unabsorbed alcohol in him at
relevant time). The following illustrates the point.

¶48 On direct examination, the analyst testified that the blood alcohol
test of Herrera Rivera’s blood showed that he had an alcohol concentration of .086
at the time of the blood draw. The analyst further testified that—based on a
“retrograde extrapolation” calculation which assumes that Herrera Rivera had no
unabsorbed alcohol at the time that he was observed driving—his blood alcohol
concentration at that time was approximately .11.

¶49 On cross examination, defense counsel asked the analyst what
amount of alcohol Herrera Rivera had to have consumed on the night of the stop in
order for his blood alcohol concentration “to be at or under a .02 … at the time of
driving?” The analyst responded that “there’s … an infinite amount of possible
answers. It depends on … when the drinking occurred.” The circuit court sought
clarification of what counsel was asking, suggesting that the question could
alternatively be posed as, “How much would [Herrera Rivera] have to have
dr[u]nk to be below .02” 104 minutes before the blood was drawn, which is the
amount of time that passed between when Herrera Rivera was driving and the
blood draw. Counsel credited the court with framing his question “better than I
did.” The analyst testified in response as follows. The .086 test result “would

22
No. 2022AP1995-CR

come from about six standard drinks.” Further, in order for Herrera Rivera to have
consumed this quantity of alcohol, assuming that his blood alcohol level was less
than .02 while he drove, he would had to: “hav[e] one drink … right next to [his]
car, [then] hav[e] the next five drinks right away and get in [his] car and get
stopped within five, ten minutes.” Thus, Herrera Rivera was allowed to elicit
testimony from the analyst regarding the hypothetical situation in which, while he
was operating the car, his blood alcohol level was below his prohibited limit of .02
and then, after he was pulled over and by the time of the blood draw, it increased
to the .086 level reflected in his blood test.

¶50 After the State contends that this defeats Herrera Rivera’s argument
on this point, he fails to make a developed argument in reply. He notes that,
before defense counsel posed the more open-ended exchange just noted, the court
prevented defense counsel from posing a question that suggested a similar
hypothetical to the analyst.10 This earlier formulation of the open-ended
questioning was, arguably, somewhat more detailed. However, Herrera Rivera
does not show how the differences between what was first not allowed and later
allowed could matter to our assessment of the circuit court’s exercise of discretion.

10
Specifically, defense counsel had earlier asked the analyst:

[L]et’s say, hypothetically, a … man [of Herrera Rivera’s
weight] consumes one mixed drink, [a] pretty strong one,
containing four standard drinks. He gets in the car, he drives,
and he’s pulled over pretty shortly after he began driving. If
only one standard drink had been absorbed into his bloodstream
at the time he was pulled over, do you know what his [blood
alcohol content] would be?

Without objection by the prosecution, the court interjected and ruled that the question must be
withdrawn because it posed a hypothetical that was not based on facts in evidence (i.e., that
Herrera Rivera had a highly alcoholic drink soon before he was pulled over).

23
No. 2022AP1995-CR

¶51 Turning to the argument about airborne microbes, Herrera Rivera’s
argument fails because it rests on a mischaracterization of the evidence. As a
result, he fails to come to grips with the circuit court’s basis for excluding
hypothetical testimony on the topic. We now summarize the pertinent testimony.

¶52 At trial, defense counsel asked the medical technician who drew
Herrera Rivera’s blood about her general practices for drawing blood, given that
the medical technician did not specifically recall Herrera Rivera’s blood draw and
her testimony that she performed “the procedure the same way every time.” The
medical technician testified that she would locate a vein in the arm and “wipe …
down” the blood-draw site, using “skin prep that’s provided in the [blood draw]
kit.” If, after getting the needle, she needed to relocate the vein, she would
“palpate above the area where [she’s] going to poke to find the vein.” She
conducted the procedure while wearing rubber gloves that were not “necessarily
… sterile.”

¶53 After the medical technician testified at trial, defense counsel later
sought to ask the analyst from the state crime laboratory about the potential for
“microorganisms” to contaminate a blood sample in a way that would skew the
accuracy of blood alcohol test results. Although counsel was able to elicit some
testimony regarding two particular microorganisms, the circuit court struck the
testimony and prevented counsel from asking about hypothetical situations in
which a specific contaminant was introduced to the blood sample. When the court
asked how some of this questioning could be relevant based on the facts in
evidence, defense counsel said that it related to the medical technician’s testimony
that she “touched [Herrera Rivera’s] arm during the blood draw” “using non-
sterile gloves.” Defense counsel suggested that for all he knew, putting “a non-
sterile object near the draw site” could cause contamination because it was

24
No. 2022AP1995-CR

possible there was a contaminant on the gloves, and counsel argued that the jury
should be allowed to consider this as a basis for reasonable doubt that the
prosecution could prove the charges. The court ruled that there was not a
sufficient basis to allow questioning regarding contamination because the medical
technician testified that she merely touched near the blood-draw site, not on it.
Implied in the court’s reasoning was that there was no evidence showing that
touching near, but not on, the blood-draw site could have introduced contaminants
to the blood sample.

¶54 On appeal, Herrera Rivera fails to make a record-supported
argument identifying an erroneous exercise of discretion in the circuit court’s
reasoning on the contaminants topic. He asserts that the medical technician
“testified to following a standard procedure which involved touching the site of
the blood draw with a non-sterile glove.” But the circuit court reasonably
interpreted the medical technician’s testimony as stating that she did not touch the
site of the blood draw. This provided the court with a discretionary basis to
exclude testimony based on the contrary assumption that touching the draw site
could have introduced contaminants. Herrera Rivera emphasizes that he has a
constitutional right to “attack the reliability of the state’s investigation and
physical evidence” through cross-examination, but this does not relieve him of the
burden on appeal to establish an erroneous exercise of discretion in preventing this
particular line of cross examination. See Rhodes, 336 Wis. 2d 64, ¶23.

C. References to .02 Blood Alcohol Concentration Restriction

¶55 Herrera Rivera argues that the circuit court erroneously exercised its
discretion in permitting the prosecutor to elicit from the officer testimony that
Herrera Rivera was subject to a .02 prohibited alcohol concentration “restriction.”

25
No. 2022AP1995-CR

Herrera Rivera argues that these references created unfair prejudice at trial by
creating an unacceptably high risk that the jury would infer from these references
that he had prior OWI convictions, and as a result would impermissibly convict
based on Herrera Rivera’s propensity to drive drunk. See State v. Warbelton,
2009 WI 6, ¶¶43-45, 315 Wis. 2d 253, 759 N.W.2d 557 (nature of OWI offenses
and “social stigma attached” to them render “‘impossible or unlikely an impartial
trial by jury’” if jurors are aware of prior OWI offenses (quoting Singer v. United
States, 380 U.S. 24, 37-38 (1965))). The State argues that the references to the .02
restriction at issue did not suggest to an impermissible extent the existence of
Herrera Rivera’s prior OWI convictions. We conclude that, applying pertinent
case law, the references to a .02 restriction, while seemingly unnecessary and
therefore potentially problematic, did not result in unfair prejudice requiring
reversal. We provide additional background regarding the references at issue
followed by the pertinent standards.

¶56 Additional Background. Before trial, Herrera Rivera stipulated to
the court that he had three prior OWI convictions, “which [were] countable under
WIS. STAT. § 343.307(1) and which remain of record and unreversed.” Under the
law summarized supra n.2, this necessarily meant that he was subject to a .02
prohibited alcohol concentration at the time of the traffic stop in this case.

¶57 Before the evidence phase of the trial began, the circuit court
informed the jury that the second count against Herrera Rivera alleged that he
“drove a motor vehicle with a prohibited alcohol concentration of more than 0.02.”

¶58 After this, out of the presence of the jury, defense counsel requested
that the circuit court exclude testimony indicating that Herrera Rivera was subject
to a .02 restriction. Counsel argued that such references would “impl[y] that

26
No. 2022AP1995-CR

something caused” the restriction, that is, it would imply that he had committed
prior OWI offenses. The court rejected this request, stating, “Absolutely the [.]02
restriction comes in.” The court reasoned that the jury needed to know that the
restriction existed in order “to know if [Herrara Rivera was] above” the .02 level
for purposes of returning a verdict on the prohibited alcohol concentration count.

¶59 Defense counsel requested to make a record on this ruling, noting
our decision in State v. Diehl, 2020 WI App 16, 391 Wis. 2d 353, 941 N.W.2d
272. Counsel was referencing discussion in that opinion emphasizing the
importance of avoiding unnecessary testimony or argument at an OWI trial that
risks giving rise to a potential inference by the jury that the defendant had driven
while intoxicated in a charged incident because the defendant had one or more
prior convictions and was subject to a prohibited alcohol restriction. The circuit
court here responded that “the … words ‘prior conviction’ will not be uttered by
any lawyer or witness,” and stated the view that, in Diehl, it was such specific
references to prior convictions that caused the problem.

¶60 During trial, the prosecution questioned the officer regarding his
calling up information about Herrera Rivera in his squad car, using Herrera
Rivera’s license data:

Q. Did you consult Wisconsin Department of
Transportation records using the information from
Mr. Herrera Rivera’s Wisconsin driver’s license?

A. Yes.

Q. Did you note any restriction on Mr. Herrera
Rivera’s license?

A. Yes. He had a .02 alcohol restriction.

Q. And what does that mean to you?

27
No. 2022AP1995-CR

A. That means an individual with that restriction
can’t operate a motor vehicle with a[n] alcohol content
above .02.

¶61 Later at trial, the prosecutor and the officer had the following
exchange:

Q. You testified that you consulted Mr. Herrera
Rivera’s DOT records?

A. Yes.

Q. And that indicated he was subject to a .02 blood
alcohol restriction?

A. That’s correct.

Q. … [F]or a person subject to that .02 blood
alcohol restriction, is a moving violation like speeding and
the odor of intoxicants sufficient probable cause to initiate
an arrest for operating with a prohibited alcohol
concentration?

After the officer answered “Yes” to this last question, defense counsel objected.
The circuit court, without prompting defense counsel to explain the basis for the
objection, sustained the objection and declared that the answer was “stricken.”

¶62 After the close of evidence, the court instructed the jury in pertinent
part as follows regarding the charge of driving with a prohibited blood alcohol
concentration:

Section 346.63(1)(b) of the Wisconsin Statutes is
violated by one who drives a motor vehicle on a highway
with a prohibited alcohol concentration. Before you may
find the defendant guilty of this offense, the State must
satisfy you beyond a reasonable doubt that the following
two elements were present: Number one, the defendant
drove a motor vehicle on a highway; number two, the
defendant had a prohibited alcohol concentration at the
time the defendant drove a motor vehicle.

28
No. 2022AP1995-CR

Prohibited alcohol concentration means more than
.02 grams of alcohol in 100 milliliters of the person’s
blood.

See WIS JI—CRIMINAL 2669.

¶63 Legal standards. The decision whether to admit or exclude
evidence is generally left to the circuit court’s exercise of discretion. State v.
Alexander, 214 Wis. 2d 628, 640, 571 N.W.2d 662 (1997).

¶64 In order to convict Herrera Rivera of driving with a prohibited
alcohol concentration as a fourth offense, the prosecution bore the burden to prove
beyond a reasonable doubt that he had three prior convictions that were countable
under WIS. STAT. § 346.307(1). See Diehl, 391 Wis. 2d 353, ¶11. This element is
“the ‘status element’ of the offense since its sole purpose was to place the
defendant in a ‘certain category of alleged offenders’ with a lower [prohibited
alcohol concentration] than other drivers.” Id. (quoting Alexander, 214 Wis. 2d at
644).

¶65 Thus, due to his prior convictions, the prosecution had to show that
Herrera Rivera had a prohibited alcohol concentration of .02 while operating his
car in order to prove the prohibited alcohol concentration charge. See id., ¶17
(citing State v. Krancki, 2014 WI App 80, ¶20, 355 Wis. 2d 503, 851 N.W.2d
824). However, “once a defendant stipulates to his or her prior OWI convictions,
any probative value of evidence of those convictions is ‘substantially outweighed
by the danger of unfair prejudice,’ and a circuit court erroneously exercises its
discretion by admitting such evidence.” Id., ¶13 (quoting Alexander, 214 Wis. 2d
at 651; see also WIS. STAT. § 904.03 (“Although relevant, evidence may be
excluded if its probative value is substantially outweighed by the danger of unfair
prejudice ….”). The case law emphasizes that the danger in allowing the jury to

29
No. 2022AP1995-CR

hear references to prior convictions in this context is that this easily invites
impermissible inferences that the defendant’s multiple prior convictions are
probably related to drinking and driving, that the charged offense is therefore part
of a “‘pattern of behavior,’ and that, ‘even if the defendant is not guilty on the
particular occasion charged, the defendant likely committed the same offense on
many other occasions without being caught.’” Diehl, 391 Wis. 2d 353, ¶25
(quoting Warbelton, 315 Wis. 2d 253, ¶47). Moreover, whether the defendant is
subject to the default prohibited alcohol concentration of .08 is not relevant to
whether the defendant in fact drove with a blood alcohol concentration above .02
on a specified occasion. See id., ¶17; WIS. STAT. § 904.02 (“Evidence which is
not relevant is not admissible.”).

¶66 Herrera Rivera argues that testimony regarding whether he was
under a “restriction” on his license that subjected him to a .02 prohibited alcohol
concentration was irrelevant given that he had stipulated to having prior
convictions and that the jury was instructed that it had to decide whether Herrera
Rivera operated the car that was stopped with a blood alcohol concentration above
the .02 limit. We do not agree that the officer’s testimony regarding the existence
of a restriction was irrelevant—again, in order to prove that Herrera Rivera drove
with a prohibited concentration of alcohol in his blood, the prosecution had to
establish what that prohibited concentration was. See Diehl, 391 Wis. 2d 353, ¶17
(“To be sure, the fact that Diehl’s PAC was .02 was relevant, since the jury would
have to find that his blood alcohol concentration exceeded that standard to convict
him.”).

¶67 Nevertheless, Herrera Rivera’s argument has the starting point that
the prosecution did not need to elicit the specific testimony quoted above from the
officer, because the jury was simply and adequately instructed that the applicable

30
No. 2022AP1995-CR

prohibited alcohol concentration at trial was .02. See id., ¶17 n.7 (noting that in
Alexander, 214 Wis. 2d at 646-47, the defendant’s stipulation regarding prior
convictions resulted in his “giv[ing] up his right to a trial” on the applicable
prohibited alcohol concentration and that it is presumed that the jury will follow
instructions). Put differently, Herrera Rivera could be understood to argue that,
although technically relevant, the testimony referencing his “restriction” was at
best offered merely in support of a finding of fact that the jury was going to be
directed to make and therefore it was entirely cumulative and prejudicial enough
to require exclusion under WIS. STAT. § 904.03.

¶68 We observe that the prosecution here approached a danger zone by
eliciting this unnecessary testimony. It may not have taken much additional
testimony or argument carrying a risk of prejudice along these lines to tip the
scales to a reverse, under the reasoning in such opinions as Alexander, Krancki,
and Diehl. Herrera Rivera was entitled to a fair trial. In light of the stipulation,
the prosecution was required to protect this fair-trial right by scrupulously
preparing witnesses and framing questioning and argument in this area to actively
avoid what could amount to an invitation to convict a defendant based on
assumptions about the defendant’s history as a driver, not on the relevant evidence
regarding the charged incident.

¶69 But we are not persuaded that the circuit court erroneously exercised
its discretion in allowing the specific testimony at issue. While cumulative to the
information that the prosecution knew the jury was already receiving from the
court, the officer’s response to the questioning regarding the restriction essentially
echoed what was already apparent in jury instructions to which Herrera Rivera did
not object at trial—that the prohibited alcohol concentration applicable to Herrera
Rivera was .02. The officer’s testimony stopped short of explicitly noting the

31
No. 2022AP1995-CR

difference between the .02 restriction applicable here and the default .08
restriction. Cf. Diehl, 391 Wis. 2d 353, ¶¶6, 17 (“during the direct examination of
the officer, the prosecutor emphasized the difference between the PAC restriction
that Diehl was subject to and the ‘normal’ PAC,” which was not relevant).
Further, unlike in Diehl, there was no testimony here that directly referenced
Herrera Rivera having prior convictions. See id., ¶¶7, 24 (prosecution elicited
testimony from defendant regarding his having two prior convictions in the
context of being questioned about the .02 prohibited alcohol concentration, giving
rise to inference that defendant had been convicted of OWI offenses); see also
Krancki, 355 Wis. 2d 503, ¶20 (distinguishing Alexander because “the State did
not admit evidence of Krancki’s prior OWI convictions”).

¶70 Herrera Rivera argues that, even in the absence of more direct
references to his prior convictions, there was nonetheless too great a risk that the
jury would infer that he had prior OWI convictions. He rests this argument on the
following. First he notes the “general proposition” that “every person,
sophisticated or otherwise, is presumed to know the law,” citing Tri-State
Mechanical, Inc. v. Northland College, 2004 WI App 100, ¶10, 273 Wis. 2d 471,
681 N.W.2d 302. From this, he argues that the jurors here should have been
presumed to know that there were two possible reasons for Herrera Rivera to have
been subject to .02 prohibited alcohol concentration instead of the widely known
default prohibition level of .08. Specifically, jurors could be expected to know
that he had been either (1) subject to an “ignition interlock order” for “improperly
refusing” to take a test for blood alcohol concentration under WIS. STAT.
§ 343.305 or having one or more offenses relating to drunk driving or handling of
a weapon while intoxicated; or, (2) had three or more “prior convictions,
suspensions or revocations, as counted” under WIS. STAT. § 343.307(1). See WIS.

32
No. 2022AP1995-CR

STAT. § 340.01(46m)(c) (defining “prohibited alcohol concentration,” in some
circumstances, as “0.02”).

¶71 But the balance set by cases such as Alexander, Krancki, and Diehl
does not require us to reverse a conviction whenever a jury might be able to infer
that the defendant has prior OWI convictions based on a .02 status. Otherwise,
trials under the lower restriction would be difficult if not impossible to conduct.
In sum, the prosecution here asked questions it would have been prudent not to
ask, but the circuit court did not erroneously exercise its discretion in allowing the
limited references to a .02 “restriction,” even though the references were
unnecessary.

CONCLUSION

¶72 For all of these reasons, we affirm the judgment of the circuit court.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS.
STAT. RULE 809.23(1)(b)5.

33