WAUKESHA

A 2015 fatal car crash case from Walworth County is once again awaiting a decision from the District II Court of Appeals—this time about whether the defendant’s blood was drawn with legal consent.

Through his lawyer, Aaron M. Gillett has asked the appellate court before to rule against a Walworth County judge’s decision. The appellate court already decided Gillett could legally argue to a jury that an anxiety attack caused the crash.

Gillett on Jan. 22, 2015, hit a car driven by Clarence Watson, 86, of Elkhorn. Watson died four days after the crash, which also injured his wife, Yuka.

In court documents, Gillett, 30, of Elkhorn said his U.S. Navy service in Iraq and Afghanistan preceded diagnoses of post-traumatic stress disorder, panic attacks and generalized anxiety disorder. He claims a tornado siren caused a “flashback” before his panic attack, during which he lost consciousness.

In May, the Court of Appeals decided Gillett could make that argument. But now it faces a new choice.

After the crash, Gillett’s blood showed traces of marijuana and difluoroethane, a chemical found in compressed-air household cleaners, according to court documents.

The Walworth County District Attorney’s Office in April 2015 filed seven criminal charges against Gillett, the most serious of which included first-degree reckless homicide and homicide by intoxicated use of a vehicle while having a prior intoxication-related conviction.

On Oct. 25, 2018, Judge Kristine Drettwan ruled against a motion by Gillett’s lawyer to suppress the blood test result, which the defense said was “unconstitutional.”

Dennis Melowski, who now represents Gillett, wrote in a Nov. 8 petition to the appellate court that police did not follow proper protocol in how they initially asked about getting a blood sample.

After the crash, town of Delavan police Lt. Scot Stefanczyk met Gillett at Aurora Lakeland Medical Center in Elkhorn, where he eventually read Gillett the Informing the Accused form.

But Stefanczyk got conditional consent, not constitutional consent, when he tried to get an idea if Gillett would cooperate or not, Melowski argues. The lieutenant asked for cooperation using future or conditional tenses.

“At the time he asked Mr. Gillett whether he ‘would’ submit to a blood test, he was not asking for constitutional consent for the blood draw, but rather was merely attempting to prepare for the next step in the process should Mr. Gillett not be cooperative and refuse,” the petition states.

The prosecution has argued Stefanczyk asked for Gillett’s consent in a conversational and calm tone—not an intimidating one. Gillett also never revoked his “voluntary” consent.

The matter should be addressed before a jury trial is held, Melowski argues, because it will “streamline” the trial process by not including evidence that shouldn’t be there.

“The legal maxim ‘justice delayed is justice denied’ would be applicable given the additional months necessary to first try this matter, appeal it after the final outcome, remand it to the circuit court and then place it back on the trial calendar,” the petition states.

Gillett is scheduled for a Walworth County status conference at 8:30 a.m. Feb. 19, more than four years after the crash.

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