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COURT OF APPEALS DECISION DATED AND RELEASED May 21, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-3447
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
WILLIAM OSCAR MARQUIS,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Milwaukee County:
RAYMOND E. GIERINGER, Reserve Judge.
Affirmed.
SULLIVAN,
J. Attorney William Oscar Marquis appeals from an order revoking his
motor vehicle operating privileges for failing to submit to a blood alcohol
content test under § 343.305, Stats. He argues that the trial court erred when it
found that the police had probable cause to seize and subsequently arrest
him. He also argues that the police did
not properly comply with § 343.305(4), Stats.,
and inform him of the consequences of failing to submit to a blood alcohol
test. Finally, he contends the trial
court erred when it found that he refused to submit a breath sample to the
police. This court rejects his
arguments and affirms.[1]
I.
Background.
Village of Whitefish Bay
Police Officer Todd Bersell responded to an anonymous call of an intoxicated
man arguing with a taxi driver in the area of 5200 North Diversey Boulevard in
Whitefish Bay. Officer Bersell
testified at pre-trial hearings that when he approached the area, the taxi
driver, Hubert Appleton, flagged him down and told him there was an intoxicated
man driving a blue auto that almost hit his cab. Bersell testified that he drove a short distance and observed a
dark blue auto parked in front of a house with its right wheels parked two feet
past the curb, resting on the grass between the road and the sidewalk. Further, the rear passenger door was six
inches from a tree. Bersell also stated
that he observed the passenger side of the car had “sideswiped damage” and was
missing both the rear door handle and passenger-side mirror.
Bersell also testified
that as he approached the car, he saw a man walking toward the curb from the
left rear part of the car. According to
Bersell, the man had a “difficult time keeping his balance.” Bersell approached
the man and asked for his identification, which the man, Marquis, provided. Marquis then asked Bersell, “What is this?” Bersell testified that he told him that he
was investigating a report of an intoxicated driver. Bersell then asked Marquis if he had been driving. According to Bersell, Marquis stated that
“he was out with ten Milwaukee homicide detectives and a judge at Coerper's 5
O'Clock Club and he just returned and parked the auto.” Bersell stated that Marquis's speech was
“very slurred,” that his eyes “appeared glazed over,” and that there was a
“strong odor of intoxicating beverage[s].”
Further, Marquis was “swaying” and “having a hard time keeping his
balance standing in one spot.”
Bersell asked Marquis to
perform field sobriety tests which, according to Bersell, Marquis failed. Marquis admitted to having a couple
drinks. Bersell then arrested Marquis for
operating a motor vehicle while intoxicated.
Marquis then refused to take a blood alcohol test, which will be
discussed in further detail below.
Marquis received both a
refusal hearing for refusing to submit to a blood alcohol test, and a bench
trial for operating a motor vehicle while intoxicated— second offense. The trial court found that Marquis refused
to submit to a blood alcohol test under § 343.305, Stats., and suspended his operator's permit. The trial court, however, did find Marquis
not guilty of the charge of operating a motor vehicle while intoxicated.
II.
Analysis.
Marquis first challenges
the trial court's determination that the police had probable cause to arrest
him. He argues that the police neither
had a reasonable suspicion sufficient to stop him, nor probable cause to
subsequently arrest him. This court
rejects his arguments.
A. Reasonable Suspicion
for Stop.
“Whether a stop meets
statutory and constitutional standards is a question of law subject to de novo
review.” State v. Drexler,
199 Wis.2d 128, 133, 544 N.W.2d 903 (Ct. App. 1995). The police may detain a person in appropriate circumstances for
purposes of investigating possible criminal behavior even though they lack
probable cause to make an arrest. State
v. Jackson, 147 Wis.2d 824, 829, 434 N.W.2d 386, 389 (1989). Hence, the essential question is whether the
police action was reasonable under all the facts and circumstances
present. Id. at 831, 434
N.W.2d at 389. “The question of what
constitutes reasonable suspicion is a common sense test. Under all the facts and circumstances
present, what would a reasonable police officer reasonably suspect in light of
his or her training and experience?” Id.
at 834, 434 N.W.2d at 390.
Clearly the officer had
reasonable suspicion for the stop under all the facts and circumstances
available to him. The anonymous call
alerted Officer Bersell to the altercation, and Appleton informed him that the
other driver was “driving a blue car.”
Bersell located a dark blue car a short distance away from
Appleton. The car was parked over the
curb, inches from a tree, with damage to its passenger side. Officer Bersell then noticed Marquis walking
from the driver's side of the car and that he had a difficult time keeping his
balance. Under the totality of the
circumstances, Bersell had a reasonable suspicion to stop Marquis for purposes
of investigating criminal behavior. Id.
B. Probable Cause for Arrest.
Probable cause to arrest
“generally refers to `that quantum of evidence which would lead a reasonable
police officer to believe that the defendant probably committed a crime.'” State v. Nordness, 128 Wis.2d
15, 35, 381 N.W.2d 300, 308 (1986) (citation omitted). Hence, “probable cause exists where the
totality of the circumstances within the arresting officers knowledge at the
time of the arrest would lead a reasonable police officer to believe, in this
case, that the defendant was operating a motor vehicle while under the
influence of an intoxicant.” Id.
Bersell testified that
Marquis had difficulty keeping his balance, admitted to recently drinking
alcohol and driving his car, smelled of alcoholic beverages, had glazed-over
eyes, slurred his speech, and failed several field sobriety tests. Under the totality of circumstances, and given
Bersell's training and experience, this court concludes, as did the trial
court, that these factors were sufficient to establish probable cause to arrest
Marquis. See, e.g., Drexler,
199 Wis.2d at 134, 544 N.W.2d at 905 (discussing factors for probable cause in
O.W.I. cases). There was no trial court
error.
C. Police Compliance
with § 343.305(4), Stats.
Marquis next challenges
the trial court's determination that the police properly informed him of the
consequences of failing to submit to a blood alcohol test as required by
§ 343.305(4), Stats.[2] He argues that he was confused and did not
understand what the police were saying when they read the “Informing the
Accused” form.
Police must
substantially comply with the procedure established in § 343.305(4), Stats.
Complete compliance is not required.
State v. Wilke, 152 Wis.2d 243, 250, 448 N.W.2d 13, 15
(Ct. App. 1989).
Here, Officer Bersell
testified that he read the entire “Informing the Accused” form to Marquis. He spent over five minutes going over the
form with Marquis. He testified that
Marquis “kept interrupting” him and asking what the form meant. Further, Bersell testified that he re-read
the section of the form and clarified it for him when Marquis questioned him
about it. Bersell then re-read the
entire form to Marquis. The trial court
accepted the credibility of the officers' testimony on this issue.
Marquis presents this
court with nothing from which we can conclude that the officers failed to
substantially comply with the mandated procedure of § 343.305(4). Id.[3]
D. Trial Court Ruling on
Refusal.
The trial court ruled
that there was insufficient evidence to establish that Marquis had a medical
condition that would justify him in refusing to submit to the breath test. Marquis testified that he told the officers
he had emphysema; he also testified that he could not even blow up a balloon.
This court reviews a
challenge to a trial court's application of facts to a statutory standard de
novo. Pulvermacher Enters. v.
DOT, 166 Wis.2d 234, 238, 479 N.W.2d 217, 219 (Ct. App. 1991). Under § 343.305(1), Stats., any person who operates a motor
vehicle is deemed to consent to a blood alcohol content test when requested by
the police. Village of Elkhart
Lake v. Borzyskowski, 123 Wis.2d 185, 191, 366 N.W.2d 506, 509 (Ct.
App. 1985) A person, however is not
deemed to refuse the test if the preponderance of the evidence shows that “the
refusal was due to a physical inability to submit to the test due to a physical
disability or disease unrelated to the use of alcohol.” Section 343.305(9)(a)5.c, Stats.
This court's review of
the record does not establish by a preponderance of the evidence that Marquis
had a physical inability to submit to the test. There was no medical testimony.
Marquis never told the officers that his alleged emphysema would prevent
him from being able to take the breath test.
Nor did Marquis appear to the officers to be “short of breath,”
“wheezing,” “coughing,” or evidencing any other physical manifestation from
which they could determine that Marquis was physically unable to submit to a
blood alcohol content test. From the
scant evidentiary record on this issue,
this court cannot conclude that there was error.
In sum, this court
rejects Marquis's argument and affirms the order revoking his operating
privileges.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[2]
Section 343.305(4), Stats.,
provides:
(4) Information. At the time a chemical test specimen is requested under sub.
(3)(a) or (am), the person shall be orally informed by the law enforcement
officer that:
(a) He or
she is deemed to have consented to tests under sub. (2);
(b) If
testing is refused, a motor vehicle owned by the person may be immobilized,
seized and forfeited or equipped with an ignition interlock device if the
person has 2 or more prior suspensions, revocations or convictions within a
10-year period that would be counted under s. 343.307(1) and the person's
operating privilege will be revoked under this section;
(c) If one
or more tests are taken and the results of any test indicate that the person
has a prohibited alcohol concentration and was driving or operating a motor
vehicle, the person will be subject to penalties, the person's operating
privilege will be suspended under this section and a motor vehicle owned by the
person may be immobilized, seized and forfeited or equipped with an ignition
interlock device if the person has 2 or more prior convictions, suspensions or
revocations within a 10-year period that would be counted under
s. 343.307(1); and
(d) After submitting to testing, the person tested has the right to have an additional test made by a person of his or her own choosing.
[3] Marquis also argues that the police erred by not observing him for twenty minutes before processing his refusal to submit to a blood alcohol test. He cites to Wis. Adm. Code § Trans. 311.06(3)(a), as a basis for this argument. This code section only applies to “the collection of a breath specimen,” not processing of a refusal to submit to a blood alcohol test.