State v. Ronald J. Rogers

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.
December 18, 2025
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. 2025AP184-CR Cir. Ct. No. 2022CF60

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

RONALD J. ROGERS,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Vernon County: DARCY JO ROOD and LUKE STEINER, Judges. Affirmed.

Before Blanchard, Kloppenburg, 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. Ronald Rogers appeals a judgment of conviction
for operating under the influence of an intoxicant as an eighth offense and an order
No. 2025AP184-CR

denying his postconviction motion for a new trial.1 Rogers argues that he received
ineffective assistance of counsel when his trial counsel failed to object to
testimony suggesting that he was subject to a prohibited alcohol concentration of
0.02 grams per 100 milliliters, which is lower than the concentration prohibited for
a person without prior convictions. He also argues that the circuit court erred in
admitting the results of his blood test because, according to Rogers, the State
failed to comply with WIS. STAT. § 343.305(5)(b) (2023-24),2 which lists the
medical personnel authorized to draw blood from a person arrested for OWI. We
conclude that Rogers has not shown prejudice from any possible error of trial
counsel or that the State failed to comply with the statutory requirements for a
blood draw. Therefore, we affirm.

BACKGROUND

¶2 The State charged Rogers with operating while under the influence
of an intoxicant (OWI) and operating with a prohibited alcohol concentration
(PAC), both as eighth offenses. At trial, the officer who arrested Rogers testified
that he stopped Rogers’s vehicle one night in 2022 after noticing that the vehicle
had no taillights. As the officer approached the vehicle, he saw Rogers light a
cigarette, which past experience suggested to him is “usually an indicator that
something is going on.” The officer noticed Rogers’s “glossy red eyes” and asked
Rogers whether he had been drinking. Rogers responded that he had two or three
drinks “within the hour.”

1
The Honorable Darcy J. Rood presided over the trial and entered the judgment of
conviction. The Honorable Lukas Steiner entered the order denying Rogers’s postconviction
motion.
2
All references to the Wisconsin Statutes are to the 2023-24 version.

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No. 2025AP184-CR

¶3 The officer testified that after this initial conversation and obtaining
Rogers’s identification, he checked Rogers’s driving record as part of the routine
protocol of a traffic stop. The prosecutor then elicited the following testimony:

Q. And what information, if any, did you gather
from that?

A. Came back with a restriction on his – of a .02
for him to operate.

Q. Is that significant to you?

A. It is, yes.

Q. Why?

A. If I was detecting possible impairment, I know
they have a lower threshold [than] I normally do for a
person; I need to investigate that.

¶4 Despite a pretrial ruling by the circuit court granting Rogers’s
motion to exclude all references to prior OWI convictions as unduly prejudicial,
defense counsel did not object to this testimony.3 The officer went on to testify
that he returned to Rogers’s vehicle and asked Rogers to get out and perform field
sobriety tests. The officer noticed that, when Rogers exited the vehicle, the “odor
was much stronger than it was when [the officer] first went up to the window.”
Rogers exhibited six out of six possible clues indicative of intoxication on the
horizontal gaze nystagmus test. Rogers informed the officer that medical issues
with his knees could affect his balance, and he struggled to follow directions and
to maintain balance on the walk and turn test. The officer testified that the

3
See State v. Alexander, 214 Wis. 2d 628, 644-45, 571 N.W.2d 662 (1997) (stating that
when a defendant stipulates to prior OWI convictions, any probative value of evidence of those
convictions is outweighed by danger of unfair prejudice and therefore the jury should not learn of
the convictions).

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No. 2025AP184-CR

balancing issues “may” have been due to Rogers’s knee problems. The State
presented video from the officer’s body camera showing Rogers’s difficulty
following instructions.

¶5 The officer then testified that he arrested Rogers and, when
searching his vehicle, found a grocery bag containing a six-pack of beer on the
front seat next to Rogers. Three of the cans were missing, and the remaining three
“were cold to the touch, which mean[t] they were recently taken out of a cooler.”

¶6 Rogers consented to a blood draw after being read the Informing the
Accused form. The officer testified that the kit used for this blood draw was
stored at the hospital where the draw occurred and the kit was sealed, with no
apparent evidence of tampering. When asked whether a phlebotomist drew the
blood, the officer responded, “Yes, a professional.” The officer further testified
that he observed Rogers’s blood being drawn and responded “[y]es” to the
question of whether he “observe[d the] phlebotomist collect the vials and place
them in the blood draw kit.”

¶7 The forensic scientist at the Wisconsin State Laboratory of Hygiene
who tested Rogers’s blood sample also testified. He confirmed that the sample
was sealed when it was received by the hygiene lab and that there was no evidence
of tampering. After testing, he determined that Rogers’s blood sample contained
0.150 grams of ethanol per 100 milliliters. On cross-examination, Rogers
questioned whether yeast contamination could cause fermentation and increase the
amount of ethanol in the sample. The scientist explained that, based on his review
of the studies on this topic, increases in ethanol concentration would be detected
only when blood samples were purposely inoculated with large amounts of yeast.

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No. 2025AP184-CR

¶8 After the forensic scientist’s testimony, the circuit court made a
record of Rogers’s objections to the admissibility of the blood test results.
Defense counsel confirmed that one objection was based on the State’s failure to
lay a proper foundation because “there was no testimony from … the
phlebotomist, the individual who drew the blood.” The court overruled that
objection, noting that the arresting officer “testified that he got the kit, he observed
the phlebotomist draw the blood,” and “observed this from start to finish.”
Rogers’s other objection was that the officer failed to comply with WIS. STAT.
§ 343.305(5)(b), which provides that only certain specified medical professionals
are authorized to draw blood from a person arrested for OWI. The court also
overruled this objection.

¶9 The jury found Rogers guilty of OWI and PAC, which was defined
as operating with “more than .02 grams of alcohol in 100 milliliters of the person’s
blood.” The circuit court dismissed the PAC charge “by operation of law” and
sentenced Rogers on the OWI conviction.

¶10 In his postconviction motion, Rogers argued to the circuit court that
trial counsel was ineffective by failing to object to the arresting officer’s testimony
regarding Rogers’s 0.02 PAC, particularly the testimony that it was “significant”
and “lower [than he] normally ha[d] for a person.” Rogers also argued that the
court erred in overruling his objection to admission of the blood test results based
on WIS. STAT. § 343.305(5)(b).

¶11 The circuit court conducted a Machner4 hearing at which trial
counsel testified. Counsel agreed that the officer’s testimony “implie[d] to the
4
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

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No. 2025AP184-CR

jury that [Rogers] ha[d] prior convictions for operating while intoxicated,”
because that would be “why he has a lower prohibited alcohol content.” Counsel
testified that counsel had no strategic reason for not objecting to the testimony.

¶12 The circuit court denied Rogers’s postconviction motion. As to the
issue of prior convictions, the court concluded that the main case relied upon by
Rogers—State v. Diehl, 2020 WI App 16, 391 Wis. 2d 353, 941 N.W.2d 272—
does not stand for the proposition that a 0.02 PAC “must be wholly ignored.” To
the contrary, the court stated, it is an element of the offense. The court
acknowledged that the officer’s discovery of Rogers’s 0.02 PAC status was made
in connection with checking Rogers’s record, and therefore might “insinuate that
the driving record is the reason for a 0.02 restriction,” but the court then
determined that the failure to object was not deficient performance because there
existed an objectively reasonable reason to not object to this testimony, even if it
was not trial counsel’s actual reason: to avoid “clarify[ing] what may remain
unclear to the jury,” that the lower PAC is the result of prior OWI convictions.
Rogers appeals, renewing his arguments with respect to both ineffective assistance
of trial counsel and WIS. STAT. § 343.305(5)(b).

DISCUSSION

A. Ineffective Assistance of Counsel

¶13 To succeed on a claim of ineffective assistance of counsel, a
defendant must show both that counsel’s performance was deficient and that
counsel’s errors were prejudicial. Strickland v. Washington, 466 U.S. 668, 687
(1984). A court need not address both components of this inquiry if the defendant
does not make a sufficient showing on one. See id. at 697. We will assume,
without deciding the issue, that Rogers’s trial counsel performed deficiently when

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No. 2025AP184-CR

he failed to object to the officer’s testimony about Rogers’s PAC at trial.
Therefore, the first prong of the test is assumed to be satisfied, and we turn to the
second prong addressing prejudice. State v. Maday, 2017 WI 28, ¶57, 374
Wis. 2d 164, 892 N.W.2d 611.

¶14 To satisfy the prejudice component of the test for ineffective
assistance of counsel, the defendant must affirmatively prove that the alleged
defect in counsel’s performance had an adverse effect on the defense. Strickland,
466 U.S. at 693. It is not enough merely to show that the error had some
conceivable effect on the outcome. Rather, “[t]he defendant must show that there
is a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceedings would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. at 694. When
determining if counsel’s deficiency undermines confidence in the outcome of the
trial and amounts to prejudice, “a court hearing an ineffectiveness claim must
consider the totality of the evidence before the judge or jury.” Id. at 695.

¶15 We are not persuaded that, absent trial counsel’s assumed
deficiency, there is a reasonable probability that the result of Rogers’s trial would
have been different. In this respect, the facts of Rogers’s case are markedly
different from those in Diehl, a case that Rogers relies on in which this court
concluded that the defendant was entitled to a new trial based on counsel’s failure
to object to testimony about the defendant’s 0.02 PAC. See Diehl, 391 Wis. 2d
353, ¶2.

¶16 First, in Diehl, the State elicited testimony about the defendant’s
restrictions on his license from both the arresting officer and the defendant. Id.,
¶6. The prosecutor asked several questions of the arresting officer that

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No. 2025AP184-CR

emphasized the difference between the defendant’s “restricted” 0.02 PAC and the
“normal” PAC of 0.08. Id. The prosecutor’s “repetitive” questions to the
defendant were directed to whether the defendant knew he was subject to a “.02
restriction,” which—like the testimony about a “normal” PAC from the arresting
officer—was not relevant to the only questions before the jury: whether the
defendant drove a motor vehicle on a highway and whether he had a prohibited
alcohol concentration at the time that he drove. Id., ¶¶5, 7, 17. In addition, the
prosecutor impeached the defendant with evidence of prior convictions and
elicited testimony from him that he had been on probation. Id., ¶7.

¶17 At Rogers’s trial, by contrast, the objectionable questioning was not
extensive. Although the arresting officer testified that Rogers had a “restriction”
of “.02 for him to operate” which is “a lower threshold,” the prosecutor did not
belabor a contrast between Rogers’s PAC and a normal PAC, elicit testimony
about what a normal PAC is, or ask repetitive questions. Rogers did not testify,
and there was no testimony about his prior convictions or probationary status that
would have strengthened any inference that his PAC was the result of prior OWI
convictions.

¶18 Second, we pointed out in Diehl that “[i]f the State had provided
strong evidence that Diehl’s blood alcohol concentration was above the legal limit
at the time he was stopped, Diehl might not be able to carry his burden of showing
the [prejudice resulting from the failure to object to the PAC testimony]
undermines confidence in the reliability of the proceeding.” Id., ¶39. Diehl’s
blood test, conducted with blood drawn almost two hours after he was pulled over,
showed a concentration of 0.031 grams per 100 milliliters. Id., ¶40. Diehl’s
defense at trial was that his blood alcohol concentration was “likely” below 0.02
grams per 100 milliliters when he was driving. Id. What this court deemed a

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No. 2025AP184-CR

“credible defense” was supported by Diehl’s expert witness, who testified that,
based on the human body’s rate of processing alcohol and his understanding of the
drinks Diehl had consumed, there had not been sufficient time for Diehl’s body to
absorb enough alcohol to result in a blood alcohol concentration over 0.02 at the
time Diehl was stopped. Id., ¶¶40-42.

¶19 Here, the State offered much stronger evidence against Rogers, and
Rogers’s defense was much less compelling. In addition to a blood test showing
0.150 grams of ethanol per 100 milliliters—more than seven times Rogers’s
allowable blood alcohol level—the State introduced testimony about Rogers’s
other signs of impairment and video footage of Rogers’s unsuccessful attempts to
follow directions for field sobriety tests. The arresting officer also testified that
Rogers admitted to drinking several alcoholic drinks “within the hour” and that the
six-pack of beer found in the front seat next to Rogers was cold, suggesting that it
had recently been taken from some form of refrigeration, with three cans missing.
Unlike the “credible defense” in Diehl, Rogers’s defense consisted primarily of
the unsupported theory that his blood sample could have been contaminated by
yeast that could have fermented and resulted in an erroneously high alcohol
concentration result.5 See id., ¶42. Given the forensic scientist’s testimony that
there was no indication of tampering or contamination in Rogers’s blood sample
and that the studies on this topic suggested that an elevated result was possible
only in samples purposely inoculated with large amounts of yeast, this was not a
particularly “credible defense” or one that would have a reasonable probability of

5
Rogers also argued that his knee issues contributed to his inability to perform field
sobriety tests.

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No. 2025AP184-CR

succeeding absent the objectionable testimony. We conclude that Rogers has
failed to satisfy the prejudice prong of the Strickland test.

B. WISCONSIN STAT. § 343.305(5)(b)

¶20 Next, we address Rogers’s argument that the circuit court erred in
admitting his blood test result based on the State’s alleged failure to demonstrate
that the person who drew Rogers’s blood was authorized to do so under WIS.
STAT. § 343.305(5)(b). We review a circuit court’s decision on whether to admit
evidence for an erroneous exercise of discretion. State v. Warbelton, 2009 WI 6,
¶17, 315 Wis. 2d 253, 759 N.W.2d 557. We will reverse such a decision if the
court bases its decision on a misstated fact or an incorrect legal standard. Id. The
interpretation of a statute, in this case the statute setting forth the legal standards
for blood draws in OWI cases, presents a legal question that we independently
review. See State v. Reitter, 227 Wis. 2d 213, 223, 595 N.W.2d 646 (1999).
“Statutory interpretation ‘begins with the language of the statute. If the meaning
of the statute is plain, we ordinarily stop the inquiry.’” State ex rel. Kalal v.
Circuit Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110
(quoted source omitted).

¶21 WISCONSIN STAT. § 343.305(5)(b) states that “[b]lood may be
withdrawn from the person arrested … only by a physician, registered nurse,
medical technologist, physician assistant, phlebotomist, or other medical
professional who is authorized to draw blood.” This unambiguously conveys that
a phlebotomist is an authorized medical professional who may draw the blood of a
person arrested in an OWI case. Rogers asserts that the testimony presented by
the State at this trial was too “brief and vague” to establish that the person who
drew his blood was statutorily authorized to do so.

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No. 2025AP184-CR

¶22 While the testimony on this subject was brief, we disagree that it was
vague. When the arresting officer, who had witnessed the blood draw “start to
finish,” was asked whether a phlebotomist drew the blood, he answered, “Yes, a
professional.” When asked if he observed “the phlebotomist collect the vials and
place them in the blood draw kit,” the officer again replied, “Yes.” The fact that
the officer used the term “professional” to describe the individual is not
inconsistent with the officer having first said “yes” to the question of whether a
phlebotomist drew the blood, and his confirmation that he saw “the phlebotomist”
collect the vials after drawing the blood further supports the circuit court’s finding
that the individual was a phlebotomist. We conclude that this testimony suffices
to establish that a phlebotomist drew Rogers’s blood and therefore that the
requirements of WIS. STAT. § 343.305(5)(b) were satisfied.

¶23 In sum, neither of the issues raised in this appeal warrant reversal of
the judgment of conviction or order denying postconviction relief.

By the Court.—Judgment and order affirmed.

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

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