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Lawyer explains OWI concerns of BAC below legal limit

MADISON (WKOW) — Prosecutors are now dealing with a new twist in the crash that killed Lake Mills firefighter Chris Truman.

Police say Samuel Cremers hit and killed the off-duty fire captain, when Truman stopped to help another driver along the Beltline in Monona New Year’s Eve.

Cremers appeared in Dane County Court Thursday, and was released on a signature bond.

He was arrested on a tentative charge of homicide by intoxicated use of a vehicle, but a court official who has seen documents on this case tells 27 News, Cremers’s blood alcohol level was .07, just below Wisconsin’s legal limit to drive: .08.

Even though it’s only .01 below the threshold, could it make that much of a difference in how this case moves forward?

According to Sarah Schmeiser, a lawyer for a Madison firm known for working on drunk driving cases, someone can be charged with an OWI even if they’re under the limit when tested.

In a situation such as this, Schmeiser says the test used was a preliminary breath test, or PBT.

The PBT is the handheld breathalyzer test usually used by police on scene but that can’t be used as evidence in court — a more thorough blood test is needed.

Schmeiser says as long as that blood test is taken within three hours of the offense, it will stand in court.

“For a person to be charged with having a prohibitive alcohol concentration, which is another common charge that usually goes along with the operating while impaired, they do have to prove specifically that the person was over .08 at the time of driving,” Schmeiser said.

Even if that blood test confirms the PBT as being below .08, that could still be considered operating while impaired.

“There the number doesn’t have to be over the legal limit, it doesn’t have to be exact,” Schmeiser said. “The state has to prove that at the time of driving the person was being impaired by alcohol, so affected enough that their driving was unsafe by alcohol.”

She says in this situation, where homicide is under consideration, it puts a stricter burden of proof which can end up swaying the final outcome of the case.

Schmeiser mentioned that in the time between the first test and the blood test that she suspects were taken, it is possible Cremers’s BAC could have changed either higher or lower, depending on how quickly or slowly Cremer’s body absorbed any alcohol he ingested.

Prosecutors say they need weeks to look at this case.

They’ll have that as Cremers appears in court again in March.

Francisco Almenara

Reporter, WKOW

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