The Wisconsin Supreme Court on Friday unanimously upheld a Wittenberg man’s vehicular homicide conviction, concluding his constitutional rights were not violated when a sheriff’s deputy ordered his blood drawn without a warrant.
The blood drawn tested a 0.141 percent blood-alcohol concentration and served as evidence that Michael R. Tullberg, 30, was intoxicated when he lost control of a truck that overturned and claimed the life of a Shawano man in 2009.
Tullberg’s truck left the road, struck a rock, flipped two or three times and came to a rest on the driver’s side door 70 feet from the rock.
Matthew J. Alf, 20, was pinned under the truck and died from his injuries. Passengers Ashley Miller and Christopher Malueg also were injured.
According to Friday’s opinion:
The crash was so violent that the cap covering the truck bed was flattened and torn loose. Debris from the wreck littered the accident scene.
Based on cell phone calls, the accident occurred between 12:18 a.m. and 12:26 a.m. July 30, 2009.
Tullberg and Miller said they looked for Alf for 15 minutes but did not find him. Malueg also looked but left the scene because he was in violation of his probation, according to court records.
The accident was not reported until 12:53 a.m. when Tullberg’s father, Melvin Tullberg, called 911. Meanwhile, Tullberg’s mother drove her son to Langlade Memorial Hospital in Antigo.
Deputy Justin Hoffman was dispatched to the scene and arrived at 1:03 a.m. to search the steep, rocky terrain. After other deputies arrived at the crash site, Hoffman went to LMH to question Tullberg.
Tullberg told Hoffman that he did not know Matthew Alf’s last name but that Alf was driving the truck. Tullberg said he rode in the passenger seat, where an airbag deployed.
Tullberg admitted to drinking Jagerbombs, a 70-proof alcohol and energy drink cocktail, that evening.
Hoffman learned that the passenger side airbag had not deployed and concluded Tullberg was the driver despite Miller also stating at the hospital that Alf drove the truck.
Hospital staff wanted to give Tullberg a CT scan, but Hoffman knew he needed to obtain a blood sample within three hours of the crash or its impact as evidence would be lessened.
Tullberg’s blood was drawn at 3:05 a.m. and tested at a 0.141 percent blood-alcohol concentration, which is above the legal limit.
Tullberg was ultimately charged with homicide by use of a vehicle with a prohibited alcohol concentration, hit and run resulting in a death, operating with prohibited alcohol concentration causing injury, and failure to aid a victim or report a crime.
Before trial, Tullberg’s attorney sought to suppress the blood test evidence, unsuccessfully arguing that Hoffman did not follow implied consent procedure and that the draw was not justified by urgent circumstances.
Circuit Judge James Halbeck denied the motion and, after a five-day trial, jurors convicted Tullberg on all charges. On May 31, 2011, Halbeck sentenced Tullberg to 20 years in prison.
An appeals court upheld the conviction last year agreeing that Hoffman had probable cause to draw Tullberg’s blood, and urgent, or exigent circumstances, waived the requirement that Tullberg be arrested first.
The state Supreme Court agreed to take the case this year after a ruling changed the legal landscape regarding blood drawn under exigent circumstances.
In upholding Tullberg’s conviction, the state’s high court agreed the blood draw without an arrest or warrant met all revised requirements.
The court noted that Hoffman had probable cause to believe Tullberg was intoxicated and was the vehicle’s driver, Tullberg did not object to having his blood drawn, and the blood was drawn in a reasonable manner.
“When there is probable cause for a blood draw … there also is probable cause to arrest for operating while intoxicated,” Chief Justice Shirley Abrahamson wrote in a 33-page opinion. “An arrest is not a prerequisite to a warrantless blood draw justified by probable cause and exigent circumstances.”
Attempts to reach District Attorney Gregory Parker for comment Friday were unsuccessful. A message left with Tullberg’s attorneys was not returned by deadline.
Tullberg is incarcerated at New Lisbon Correctional Institution, according to online prison records.
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