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COURT OF APPEALS
DECISION
DATED AND FILED
June 10, 2010
David
R. Schanker
Clerk of Court of Appeals
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NOTICE
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This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
Reports.
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
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Appeal No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT IV
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In the matter of the refusal of Bradley K. Darwin:
Bradley K. Darwin,
Plaintiff-Appellant,
v.
City of Monona,
Defendant-Respondent.
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Bradley K. Darwin,
Plaintiff-Appellant,
v.
City of Monona,
Defendant-Respondent.
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APPEAL
from a judgment and an order of the circuit court for Dane County: STUART
A. SCHWARTZ, Judge. Affirmed.
¶1 HIGGINBOTHAM, J. Bradley
K. Darwin appeals his judgment of conviction for operating a motor vehicle while
intoxicated (OWI), first offense, entered upon a verdict of the City of Monona municipal
court. Darwin
also appeals an order of the City of Monona
municipal court revoking his operating privileges for refusal to submit to an
intoximeter test. Darwin argues that the circuit court failed
to employ the proper standard of review by performing a transcript review under
Wis. Stat. § 800.14(5) when
he had not withdrawn his request for a trial de novo under
§ 800.14(4). Darwin also argues that the officer lacked
probable cause to arrest him, that his refusal to submit to an intoximeter test
was reasonable, and that there was insufficient evidence to convict him of
OWI. We conclude that the circuit court
employed the proper standard of review and that the record supports the
decisions of the municipal court. We
therefore affirm.
¶2 On September 25, 2008, Darwin
was arrested for OWI and other traffic violations, and issued citations for
violations of City of Monona
ordinances. A trial was held before the
City of Monona municipal court wherein Darwin was convicted of
operating a motor vehicle while intoxicated, contrary to a city ordinance
adopting by reference Wis. Stat. § 346.63(1)(a),
and speeding. Concurrent with the trial,
the court held a refusal hearing and determined that Darwin’s refusal to submit to an intoximeter
test was unreasonable, pursuant to Wis.
Stat. § 343.305(10). Darwin timely appealed the
municipal court ruling to the circuit court and requested a trial de novo
before a jury. A hearing was held in Dane County Circuit
Court at which Darwin,
by counsel, withdrew his request for a trial de novo and stipulated that the
court decide the case based on the transcript.
The parties submitted briefs to the court, and the court upheld the
municipal court’s decision.
¶3 Darwin
first argues that the circuit court erred by deciding the case under Wis. Stat. § 800.14(5). Darwin
asserts that, contrary to the court minutes, he did not withdraw his request
for a trial de novo under Wis. Stat. § 800.14(4). Instead, Darwin claims that he merely withdrew his
jury demand and stipulated to the use of the municipal court transcript by the
circuit court in lieu of taking new testimony.
The court minutes contained in the record indicate that the trial de
novo request under § 800.14(4) was withdrawn and that the case was
converted to a transcript review under § 800.14(5). The transcript of that hearing is absent from
the record. We are bound by the record
before us and where it is incomplete we assume that the missing material
supports the circuit court’s decision. See Fiumefreddo v. McLean, 174 Wis. 2d 10, 26-27,
496 N.W.2d 226 (Ct. App. 1993). Consequently,
we conclude that the circuit court properly reviewed the municipal court’s
decision under § 800.14(5).
¶4 Darwin
alleges several errors stemming from his municipal court trial. We review the decision of the municipal court
under the same standard of review as the circuit court. Village of Williams Bay
v. Metzl, 124 Wis. 2d
356, 362, 369 N.W.2d 186 (Ct. App. 1985).
Review under Wis. Stat. § 800.14(5)
is limited “to an examination of the transcript to determine whether the
evidence supports the municipal court decision” and “is analogous to appellate
review of a trial to a circuit court under sec. 805.17(2).” Id.
at 361. We will uphold the municipal
court’s findings of fact unless clearly erroneous and give “due regard … to the
opportunity of the municipal court to judge the credibility of the witnesses.” Id. Darwin’s remaining
arguments present questions of law that we review de novo.
¶5 Darwin
argues that the officer lacked probable cause to arrest him for OWI. The municipal court made the following
findings of fact with respect to probable cause: Darwin signaled a turn, but failed to
complete it; he denied drinking; he emitted an odor of intoxicants, his eyes
were red, and his speech was slurred; he refused to perform field sobriety
tests; and the officer observed bad driving.
The municipal court based its findings on the testimony of the arresting
officer, Darwin, and two of Darwin’s
friends, and found the officer’s testimony more credible than the testimony of
the other witnesses. Given our highly
deferential review of the municipal court’s determinations of credibility, and
our examination of the record, we cannot say that the municipal court’s
findings of fact are clearly erroneous.
We conclude that these facts, when viewed objectively and taken together
with the officer’s experience, rose to the level of probable cause to arrest Darwin for OWI.
¶6 Darwin
next argues that his refusal to submit to the intoximeter test was
reasonable. At the refusal hearing, the
issues were limited to whether the officer requesting the test had probable
cause to arrest Darwin
for OWI, whether the officer complied with the notice requirement, and whether
the test was refused. Wis. Stat. § 343.305(9)(a)(5). Here, only probable cause is disputed. Therefore, because we have already determined
that the officer had probable cause to arrest Darwin for OWI, we conclude that
Darwin’s refusal was unreasonable and his operating privileges were properly
revoked pursuant to § 343.305(10).
¶7 Finally, Darwin
argues that there was insufficient evidence to support his conviction for
OWI. In addition to those findings discussed
above supporting probable cause to arrest, the municipal court found that Darwin improperly refused a
request to perform a chemical test of his breath. We will not set aside a conviction for
insufficiency of the evidence “unless the evidence, viewed most favorably to the
[City] and the conviction, is so insufficient in probative value and force that
it can be said as a matter of law that no trier of fact, acting reasonably,
could have found guilt” by clear, satisfactory and convincing evidence. State v. Poellinger, 153 Wis. 2d 493, 501,
451 N.W.2d 752 (1990). Based on the
evidence available to the municipal court, including the substantial findings
already discussed, we conclude that the municipal court, acting reasonably,
could have been convinced that Darwin
operated a motor vehicle while intoxicated.
By the Court.—Judgment and order
affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)(4).