Kevin Murphy, Leader Correspondent
A former Wittenberg man serving a 20-year sentence on a vehicle homicide charge was convicted on illegally obtained blood-alcohol evidence, his attorney told the Wisconsin Supreme Court on Tuesday in Madison.
Attorney Sarah Schmeiser said Deputy Justin Hoffman of the Shawano County Sheriff’s Department never asked Michael R. Tullberg to submit to a blood test, never arrested him and did not follow the implied consent procedure for taking blood — violating Tullberg’s Fourth Amendment protection against unlawful search and seizure.
Assistant Attorney General Christine Remington, however, argued Hoffman did not have time to get permission to test Tullberg’s blood evidence after determining that he was driving the truck in which Matthew J. Alf, 20, of Shawano, was killed.
Tullberg, 30, was sentenced in May 2011 to nearly 20 years in prison in connection with a July 2009 rollover accident in which Alf was killed and two others were injured.
Shawano County Circuit Judge James Habeck allowed the blood test results into Tullberg’s five-day trial, after which he was convicted of homicide by intoxicated use of a vehicle and hit-and-run resulting in death.
Habeck agreed with Hoffman’s assertion that he did not have to time to seek a search warrant or ask Tullberg to submit to a blood draw as the alcohol in Tullberg’s blood was dissipating.
On appeal, Tullberg’s attorney said the decision by Hoffman to request a blood draw just before Tullberg was to undergo a CT scan violated his rights.
An appeals court in June 2013, however, upheld Habeck’s ruling and Tullberg’s convictions, finding that the time delays Hoffman faced created exigent circumstances that did not require obtaining a search warrant to draw Tullberg’s blood.
On Tuesday, Schmeiser argued that the exigent or urgent conditions did not exist. She said Hoffman had time to interview Tullberg twice about the fatal rollover accident, take photos of Tullberg and talk to other officers investigating the accident scene.
“There were other officers available to seek a search warrant even if Hoffman was too busy,” Schmeiser told the justices.
The prosecution has the burden to prove exigent conditions existed but cannot prove it if they did not try to get a warrant, Schmeiser said.
Justice Michael Gableman asked Schmeiser how much time Hoffman had after determining that Tullberg was driving his truck when it left the highway. Tullberg originally said Alf was driving.
“Maybe he decided not to call … because he knew how long it would take to get a warrant (at 2 a.m. on a July night in 2009),” Gableman said.
In determining that Hoffman did not believe he had enough time to get a warrant, Habeck could rely on his knowledge as to how much time it takes to get a search warrant in Shawano County, Schmeiser admitted.
In response to a question from Justice Annette Ziegler, Schmeiser said she did not know if Wisconsin judges in 2009 issued search warrants by telephone to draw blood.
Remington said Tullberg contributed to the delay by leaving the scene of the accident. He went to his mother’s house before he was taken to Langlade Hospital in Antigo, she noted, and by lying about who was driving.
“If he caused the delay, he shouldn’t be able to benefit from it,” Remington said.
Tullberg’s medical needs also delayed Hoffman in seeking consent to get the blood, Remington said.
“The officer said he had no time to get the warrant or to read (Tullberg) the (implied consent) form,” she said.
In her first appearance before the state’s high court, Schmeiser acknowledged it would be difficult to get Tullberg a new trial.
“I can always hope,” she said, “but they can decide that (Hoffman acted in good faith) and let the (blood test results) in anyway.”
The court is not expected to issue a decision for several months.
Tullberg is serving his sentence at the New Lisbon Correctional Institution, according to online records.