|
COURT OF
APPEALS DECISION DATED AND
RELEASED June
20, 1996 |
NOTICE |
|
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. 96-0228-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
STEVEN
A. HIPWOOD,
Defendant-Appellant.
APPEAL
from an order of the circuit court of Dane County: STUART SCHWARTZ, Judge. Affirmed.
DYKMAN,
J. This is a single-judge appeal decided pursuant to
§ 752.31(2)(c), Stats. Steven A. Hipwood appeals from an order
convicting him of one count of operating a motor vehicle while under the
influence of an intoxicant (OMVWI), contrary to § 346.63(1)(a), Stats.
The issues are: (1) whether the Double Jeopardy Clause of the Fifth
Amendment to the United States Constitution bars criminal prosecution of Hipwood
for OMVWI under § 346.63(1)(a) following an administrative suspension of
his operating license; and (2) whether the request to take a field
sobriety test constitutes a seizure under the Fourth Amendment where refusal to
comply may be used as a factor in determining probable cause. We conclude: (1) prosecuting Hipwood for OMVWI does not violate the
Double Jeopardy Clause because an administrative agency suspension does not
constitute a second punishment for double jeopardy purposes; and
(2) requesting that a motorist submit to a field sobriety test does not
violate the Fourth Amendment to the United States Constitution.
BACKGROUND
On June 3, 1995, Officer
Darnell was patrolling the Northeast sector of Dane County when he observed a
vehicle exceeding the speed limit and without any tail lights illuminated. Officer Darnell followed the vehicle. While doing so, he saw that the vehicle was
weaving within its lane. Officer
Darnell stopped the vehicle and when he approached the driver, Steven A.
Hipwood, he noticed an odor of intoxicants.
Hipwood admitted to drinking approximately six or eight alcoholic
beverages that evening.
Officer
Darnell asked Hipwood if he was willing to exit the vehicle in order to perform
some field sobriety tests. Hipwood agreed. Based upon Officer Darnell's observations of Hipwood during the field
tests and the odor of intoxicants on his breath, he concluded that Hipwood had
been driving while under the influence of an intoxicant and arrested him.
Hipwood
moved to dismiss the criminal charges, arguing that the Double Jeopardy Clause
of the Fifth Amendment prohibited criminal proceedings against him because the
administrative suspension of his operating privileges was a punishment and
further prosecution would violate the Double Jeopardy Clause.
Hipwood
also moved to suppress the evidence of intoxication that Officer Darnell
obtained at the scene because the stop violated the Fourth Amendment. Specifically, Hipwood contended that Officer
Darnell exceeded the scope of the investigation during a traffic stop by
requesting him to submit to a field sobriety test. The trial court denied Hipwood's motions. Hipwood pled no contest to OMVWI and was
convicted. Hipwood now appeals.[1]
DOUBLE
JEOPARDY
Hipwood's
objection to this prosecution on the basis that it violates the Double Jeopardy
Clause of the Fifth Amendment has been previously decided in State v.
McMaster, 198 Wis.2d 542, 543 N.W.2d 499 (Ct. App. 1995), review
granted, ___ Wis.2d ___, 546 N.W.2d 468 (1996). In McMaster, we held that criminal prosecution for
OMVWI is not barred because the defendant's driver's license was
suspended. Id. at 553,
543 N.W.2d at 503. The suspension of
the license and the conviction for OMVWI did not constitute multiple
punishments for purposes of double jeopardy.
Id. While Hipwood
correctly notes that the Wisconsin Supreme Court has accepted a petition to
review McMaster, until a change in law is made, McMaster
is precedential and is dispositive of this issue.
FOURTH
AMENDMENT VIOLATION
Not
every contact between law enforcement officers and citizens constitutes a
Fourth Amendment violation. Terry
v. Ohio, 392 U.S. 1, 19 n.16 (1968).
Certain seizures are justifiable if the police have an articulable
suspicion that a person has committed or is about to commit a crime. Florida v. Royer, 460 U.S.
491, 498 (1983). Such suspicion must be
based on "specific and articulable facts which, taken together with
rational inferences from those facts, reasonably warrant that intrusion." Terry, 392 U.S. at 21.
Upon
stopping an individual, an officer may make reasonable inquiries to dispel or
confirm suspicions that justified the stop.
Berkemer v. McCarty, 468 U.S. 420, 439 (1984). The scope of this intrusion "will vary
to some extent with the particular facts and circumstances of each
case." Royer, 460
U.S. at 500. However, as a general
rule, an investigative stop "must be temporary and last no longer than is
necessary to effectuate the purpose of the stop." Id. at 500. In other words, the length and the scope of
the detention must be strictly related to, and justified by, the circumstances
that rendered the initiation of the stop permissible. Terry, 392 U.S. at 19.
It
is undisputed that the initial stop of Hipwood was a routine traffic investigatory
stop. The issue is whether this
detention rose to the level of an arrest when the officer requested that
Hipwood submit to a field sobriety test.
The
Wisconsin Supreme Court has addressed this issue in the case of State v.
Swanson, 164 Wis.2d 437, 475 N.W.2d 148 (1991). In Swanson, the court held
that a reasonable person would not believe that he or she was under arrest
simply by being requested to submit to a field sobriety test. Id. at 449, 475 N.W.2d at
153. See also Berkemer,
468 U.S. at 437-40. Instead, the court
determined that the limited scope and duration of a field sobriety test
militates against a finding of a formal arrest. Swanson, 164 Wis.2d at 448, 475 N.W.2d at 153. Further, the court noted that the clear
implication of the request to take a field sobriety test is that if the
motorist passes the test, he or she would be free to leave. Id. at 448, 475 N.W.2d at 153.
However,
Hipwood argues that the proposition in Swanson has been modified
by State v. Babbitt, 188 Wis.2d 349, 525 N.W.2d 102 (Ct. App.
1994). In Babbitt, the
court held that a person's refusal to take a field sobriety test was evidence
of consciousness of guilt and may be considered as a factor in determining the
existence of probable cause. Id.
at 359-60, 525 N.W.2d at 105. Thus,
Hipwood contends that because the refusal to take a field sobriety test may be
used to establish probable cause, a detained motorist is no longer free to
decline to take the test when requested to do so. Accordingly, Hipwood concludes that this lack of an alternative
transforms a Terry stop into an arrest as soon as the detainee is
asked to submit to a field sobriety test.
Hipwood's
argument fails for three reasons.
First, a person is not compelled to submit to a field sobriety test
simply because refusal may be considered later as a factor in establishing
probable cause to arrest for driving under the influence. The court in Babbitt noted
that a refusal to take a field sobriety test is never sufficient to establish
probable cause; it is only one factor that the police may consider. The Babbitt decision does not
make performing a sobriety test compulsory.
Second,
a request to take a field sobriety test is reasonable under the circumstances
of an investigatory stop. It is a
justifiable and least intrusive means to determine whether a motorist should be
arrested. The length of the stop and
the performance of a field sobriety test is temporary and does not impose
needless delay on the motorist.
Further, the scope of the detention is strictly related to and limited
by the circumstances that initiated the stop.
Thus, this request does not violate the scope of a Terry
stop.
Last,
Hipwood misreads Babbitt. He asserts that Babbitt
leaves open the possibility that a request to take a sobriety test may be
considered a formal arrest for purposes of the Fourth Amendment. However, the Babbitt court
impliedly determined that the request to take a field sobriety test was not an
arrest. Otherwise, the court would not
have undertaken a further discussion about whether there was probable cause to
arrest after the detained motorist refused to take the test.
We
conclude that the officer's request that Hipwood submit to a field sobriety
test did not transform the Terry investigative stop into an
arrest.
By
the Court.—Order affirmed.
Not
recommended for publication in the official reports. See Rule
809.23(1)(b)4, Stats.