State v. Joseph B. Venable

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.
August 15, 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. 2023AP1367 Cir. Ct. No. 2021TR6474

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JOSEPH B. VENABLE,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Columbia County:
TODD J. HEPLER, Judge. Affirmed.

¶1 TAYLOR, J.1 Joseph Venable appeals a circuit court judgment
convicting him of first offense operating a motor vehicle while under the influence

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This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(c) (2021-22).
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
No. 2023AP1367

of controlled substances pursuant to WIS. STAT. § 346.63(1)(a).2 The State
proceeded based on a theory that Venable was incapable of safely driving because
of his use of controlled substances that were prescribed to him. Venable argues
that the State presented insufficient evidence to establish that the controlled
substances caused his impairment. I reject Venable’s arguments and affirm.

BACKGROUND

¶2 The following facts, taken from the arresting officer’s testimony, are
undisputed. At approximately 10:30 p.m. on the night of September 24, 2021, a
Wisconsin State Patrol trooper learned from dispatch that four complaints had
been made about a car driving northbound on an interstate highway in Columbia
County. The trooper responded and located the car, which was driven by Venable.
She observed Venable’s car, which was in the right lane, go onto the right
shoulder, then deviate into the middle lane, nearly colliding with a truck.
Venable’s car continued to cross lane lines, and the trooper initiated a traffic stop.

¶3 The trooper asked Venable about his poor driving, and he explained
that he was “tired and falling asleep.” Venable said that he was on his way to visit

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Under that statute,

No person may drive or operate a motor vehicle while:

(a) Under the influence of an intoxicant, a controlled
substance, a controlled substance analog or any combination of
an intoxicant, a controlled substance and a controlled substance
analog, under the influence of any other drug to a degree which
renders him or her incapable of safely driving, or under the
combined influence of an intoxicant and any other drug to a
degree which renders him or her incapable of safely driving ….

WIS. STAT. § 346.63(1)(a).

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No. 2023AP1367

his mother in Madison, which confused the trooper because Venable was driving
north but Madison was to the south. Venable admitted that he did not know where
he was. The trooper observed that Venable’s speech was slow and slurred, that his
pupils were dilated, and that his body movements were “very animated.”

¶4 The trooper asked Venable if he had taken any prescription
medications, and Venable responded that he had taken four prescription
medications, including Adderall and paroxetine, that morning. He reported that he
had been taking Adderall and paroxetine for five to six years. Based on her
training, the trooper knew that Adderall is a stimulant, and can cause
hyperactivity, nervousness, “extreme talking,” and an “inability to sit still.”

¶5 The trooper administered field sobriety tests. Venable exhibited six
out of six possible indicators of impairment on the horizontal gaze nystagmus test,
four out of eight indicators on the walk-and-turn test, and two out of four
indicators on the one-leg stand test.3 Venable had difficulty following instructions
on the walk-and-turn test and the one-leg stand test. Venable also performed a
Modified Romberg test, which is a test directed at assessing impairment from a
controlled substance. Venable did not show signs of impairment on this test.

¶6 The trooper arrested Venable on suspicion of operating a motor
vehicle under the influence of a controlled substance which rendered him
incapable of safely driving. See WIS. STAT. § 346.63(1)(a). For ease of reference, I
refer to this offense as “OWI.” Upon searching Venable’s car, the trooper

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Venable told the trooper that he had medical conditions that could interfere with these
tests; specifically, he told the trooper that he had nystagmus and that he had a blood clot in his leg
that might affect his ability to walk.

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No. 2023AP1367

discovered “loose Adderall pills that weren’t in the bottle,” as well as “broken
pills.” The trooper asked Venable about the broken pills, and he explained that he
sometimes takes a half-pill because he “doesn’t like to be overstimulated.”

¶7 Venable consented to an evidentiary blood test, which revealed the
presence of amphetamine and paroxetine in his blood. The State cited Venable
with OWI, and the case proceeded to a bench trial.

¶8 During the trial, the forensic scientist who analyzed Venable’s blood
testified as follows. The blood test indicated the presence of amphetamine, which
is the “main ingredient” of Adderall, at a level of 260 nanograms per milliliter;
and the presence of paroxetine, at an unspecified level. Although it is “very
uncommon,” amphetamine and paroxetine can interact to cause “serotonin
syndrome,” which is “an excess of the chemical serotonin in the body that can
have adverse complications.” These complications can include “sweating,
shivering, uncontrolling [sic] body movements, [and] confusion,” as well as more
severe side effects including “unconsciousness and death.” The forensic analyst
did not testify as to any other impairing effects of the controlled substances.

¶9 The circuit court determined that the State had met its burden to
prove that Venable was guilty of OWI and entered a judgment of conviction.

DISCUSSION

¶10 “No person may drive or operate a motor vehicle while … under the
influence of … a controlled substance … to a degree which renders him or her
incapable of safely driving.” WIS. STAT. § 346.63(1)(a). The parties appear to
agree that Adderall, amphetamine, and paroxetine are “controlled substances” for
the purposes of § 346.63(1)(a).

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No. 2023AP1367

¶11 Venable does not contest that he was incapable of driving safely.
Venable’s sole argument on appeal is that the State failed to introduce sufficient
evidence that his unsafe driving was due to the influence of a controlled substance.

¶12 The evidence to support a conviction is insufficient only if, “when
viewed most favorably” to the government, the evidence “is so insufficient in
probative value and force that it can be said as a matter of law that no trier of fact,
acting reasonably, could have found guilt” under the applicable evidentiary
standard. State v. Poellinger, 153 Wis. 2d 493, 501, 451 N.W.2d 752 (1990).
Here, that standard is proof by “clear, satisfactory and convincing” evidence. WIS.
STAT. § 345.45 (setting forth the applicable burden of proof for civil traffic
violations; see also County of Racine v. Smith, 122 Wis. 2d 431, 435, 362
N.W.2d 439 (Ct. App. 1984) (first offense violation of WIS. STAT. § 346.63(1)(a)
is a civil matter)).

¶13 Venable argues that the State failed to establish a “nexus” linking a
controlled substance in his blood to his unsafe driving. Venable notes that he had
prescriptions for Adderall (the presumed source of the amphetamine in his blood)
and for paroxetine, and that the State did not introduce evidence that the levels of a
controlled substance found in his blood would cause impairment or were outside
the normal amount for someone appropriately ingesting their prescribed
medications. He contends that the “other theoretical possibility was that [he] was
too tired to drive safely,” and that the evidence “overwhelmingly established”
fatigue, rather than a controlled substance as the cause of his admittedly unsafe
driving.

¶14 Venable relies on State v. McAdory, 2021 WI App 89, 400 Wis. 2d
215, 968 N.W.2d 770, which, like this case, involves an OWI action pursuant to

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No. 2023AP1367

WIS. STAT. § 346.63(1)(a) based on alleged impairment by controlled substances.
In that case, McAdory was arrested for OWI, and a subsequent test of his blood
showed the presence of the controlled substances cocaine and THC. Id., ¶¶11, 14.
The blood test results were presented to the jury; however, the State did not
present evidence “regarding the particular impairing effects” of the levels of those
substances. Id., ¶¶26-27. McAdory argued that, due to the lack of such evidence,
the State had introduced insufficient evidence to prove that the controlled
substances caused his impairment. Id., ¶22.

¶15 This court acknowledged that McAdory had “identified deficits in
the evidence.” Id., ¶34. However, it determined that there was “extensive
circumstantial evidence of impairment which the jury could reasonably attribute to
the controlled substances,” and that this evidence was “sufficient to overcome the
lack of testimony based on science, experience, or observation regarding specific
impairing effects of cocaine and THC.” Id., ¶29. This circumstantial evidence
included the following: the fact that the other theoretical possibility for the
impairment, alcohol, had been ruled out, id., ¶30; signs of impairment such as
“impulsive and reckless behavior of running from the police,” id., ¶31; and the fact
that “it is within the common knowledge of jurors that a person can, after
ingesting sufficient amounts of cocaine and THC, become unable to safely control
a vehicle,” id., ¶32. This evidence permitted a “reasonable inference” that
McAdory’s impairment was due to controlled substances. Id., ¶34.

¶16 As in McAdory, the State here did not introduce direct evidence
regarding the impairing effects of the levels of the controlled substances found in
Venable’s blood. Venable acknowledges that this court nevertheless concluded in
McAdory that the evidence was sufficient, but argues that the application of
McAdory’s reasoning leads to the opposite conclusion here. For reasons I now

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No. 2023AP1367

explain, I conclude that, despite the lack of direct evidence regarding the impairing
effects of the specific levels of controlled substances in Venable’s blood, the
evidence nevertheless permits a reasonable inference that Venable’s impairment
was due to his use of a controlled substance.

¶17 First, the record contains evidence that Venable displayed an
unusual level of impairment. Although Venable argues that the facts
“overwhelmingly establish” fatigue as the cause of his impairment, this argument
overlooks facts suggesting impairment beyond that expected from mere fatigue.
Venable’s driving conduct was extremely unsafe: four other drivers called police
with complaints, and his repeated lane deviations in highway traffic nearly caused
a collision. In his interactions with the trooper, Venable displayed a high level of
confusion, indicating a destination that was in the opposite direction he was
driving, and indicating that he did not know where he was. He likewise had
difficulty understanding field sobriety test instructions. This unusual level of
impairment could support a reasonable inference that Venable’s impairment was
not due to a commonplace condition such as fatigue, especially because Venable
identifies no evidence explaining why he would have been so fatigued at
10:30 p.m. that he would exhibit such a high degree of impairment and unsafe
driving.

¶18 Second, the record contains evidence regarding the potential
impairing effects of the controlled substances, as well as evidence supporting an
inference of impairment by those substances. As noted above, the trooper testified
that Adderall is a stimulant and can cause hyperactivity and related effects such as
an “inability to sit still.” It is reasonable to infer that such effects can impair one’s
ability to drive safely. Venable contends that “most” of the trooper’s observations
of Venable suggest “a low energy level,” rather than hyperactivity. He also notes

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No. 2023AP1367

that he did not show signs of impairment on the Modified Romberg test, which
can indicate impairment by controlled substances. However, the trooper also
testified that Venable’s body movements were unusually “animated,” consistent
with the stimulant effects of Adderall. Additionally, Venable’s driving conduct
(repeated lane deviations) could also be consistent with such effects. The fact that
Venable’s behavior is only partially consistent with the impairing effects of
Adderall does not rule out a reasonable inference that Adderall caused the
impairment, particularly considering the unusually high level of impairment
present here.

¶19 Venable also contends that it was “reasonable to infer” that Adderall
would not interfere with his ability to drive because he had a prescription for it and
had been taking it for several years. He concedes that this premise depends on his
taking “the amount prescribed,” but contends that his statement to the trooper that
he had taken his medications as prescribed that day is “uncontroverted.”
However, the circuit court was not required to credit this statement, and Venable
ignores evidence suggesting a contrary inference. As noted, the trooper testified
that she found loose Adderall pills in Venable’s car, and also found broken pills,
which Venable explained by saying that he “doesn’t like to be overstimulated”—
in essence, an admission that, at least on some occasions, he did not use Adderall
as prescribed. The fact that Adderall pills were “loose” and presumably accessible
in Venable’s vehicle, along with Venable’s admission, could support a reasonable
inference that, at the time of the driving conduct, he had used Adderall other than
as prescribed—such as by taking additional Adderall while driving in an attempt
to stay alert.

¶20 At trial, there was also evidence that impairment could result from
the interaction of amphetamine and paroxetine. As noted above, the forensic

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No. 2023AP1367

analyst testified that these drugs could interact to cause serotonin syndrome, a
“very uncommon” condition with symptoms including sweating, uncontrolled
body movements, and confusion.4 Venable argues that this evidence should be
given “little to no consideration” for reasons including the fact that the analyst
testified that serotonin syndrome was rare and that Venable exhibited only one of
its symptoms, confusion. I agree that little evidence supports the premise that
serotonin syndrome was the cause of Venable’s impairment, and by itself, this
evidence may not support a reasonable inference that controlled substances caused
Venable’s impairment. However, as noted above, this is not the sole evidence in
the record suggesting impairment by controlled substances. The record as a whole
supports an inference that Venable’s use of Adderall, a controlled substance,
caused his impairment.

¶21 In sum, although the State did not present evidence of the specific
impairing effects of the levels of the controlled substances present in Venable’s
blood, it nevertheless presented sufficient evidence to support a reasonable
inference that his impaired driving was due to controlled substances. I reject
Venable’s argument that the circuit court could only have reasonably attributed his
impaired driving to fatigue. Even if the record supports an inference that
Venable’s impairment was due to fatigue, it is not the role of this court to choose
between competing inferences. When the record “supports more than one
inference, an appellate court must accept and follow the inference drawn by the

4
Venable notes that he objected to the forensic analyst’s testimony, but he does not
expressly argue that the circuit court erred in overruling his objection and allowing the testimony.
To the extent that Venable intends to make such an argument, I reject it as undeveloped. See
State v. Pettit, 171 Wis. 2d 627, 647, 492 N.W.2d 633 (Ct. App. 1992) (this court need not
address undeveloped arguments).

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No. 2023AP1367

trier of fact unless the evidence on which that inference is based is incredible as a
matter of law.” State v. Poellinger, 153 Wis. 2d 493, 507, 451 N.W.2d 752
(1990). I cannot conclude, on this record, that “no trier of fact, acting reasonably,
could have found guilt” by clear, satisfactory, and convincing evidence. Id. at
501; WIS. STAT. § 345.45. Accordingly, I reject Venable’s argument that the
evidence was insufficient to support his OWI conviction.

CONCLUSION

¶22 For all of these reasons, I affirm the circuit court’s judgment of
conviction for first offense OWI.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

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