A state appeals court Tuesday upheld a Wittenberg man’s convictions, concluding a Shawano County Sheriff’s Department deputy didn’t violate Michael R. Tullberg’s constitutional rights by requesting a blood draw without a warrant. Tullberg, 29, was sentenced in May 2011 to nearly 20 years in prison in connection with a July 2009 rollover accident in which Matthew J. Alf, 20, of Shawano, was killed and Ashley Miller and Christopher Malueg were injured. Jurors convicted Tullberg of homicide by intoxicated use of a vehicle, homicide by intoxicated use of a vehicle with a prohibited alcohol content, and hit-and-run resulting in death. On appeal, Tullberg’s attorney said the decision by Deputy Justin Hoffman to request a blood draw just before Tullberg was to undergo a CT scan violated his rights. Attorney Daniel Goggin II attacked Shawano County Circuit Judge James Halbeck’s decision to permit the blood evidence at trial. He argued that Hoffman lacked probable cause to believe that Tullberg was impaired or drove the crashed vehicle. However, the District III Court of Appeals disagreed. According to the opinion: Miller and Tullberg initially told Hoffman that Alf was driving the vehicle and they were passengers. Hoffman, however, deduced that was unlikely, noting that Tullberg had injuries consistent with a deployed air bag, including singed arm hair and the odor of airbag residue on his clothing. Also, Tullberg appeared glassy-eyed, Hoffman said. Faced with a three-hour window, the time it takes for alcohol to dissipate in the blood system, Hoffman requested the blood draw without Tullberg’s consent. “Looking at the totality of the circumstances in this case, we conclude Hoffman reasonably believed that he was confronted with an emergency, ‘in which the delay necessary to obtain a warrant … threatened the destruction of evidence,’” according to the 12-page unsigned opinion. Tullberg’s defense in court was that Malueg drove the truck and that Maleug’s testimony, in which he said Tullberg was the driver, was coerced by investigators whom Malueg feared would revoke his probation. However, the appeals court concluded that investigators made no promises to induce Malueg’s testimony. Contacted Tuesday, Goggin said he had not seen the opinion yet and had no comment. A call to District Attorney Gregory Parker was not returned by the Leader’s deadline. Tullberg is serving his sentence at the New Lisbon Correctional Institution.
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