|
COURT OF
APPEALS DECISION DATED AND
RELEASED August
22, 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. 96-0345-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
JAVEE
RALSTON,
Defendant-Appellant.
APPEAL
from judgment of the circuit court for Dane County: SARAH B.
O'BRIEN, Judge. Affirmed.
DEININGER,
J.[1] Javee
Ralston appeals from a judgment convicting him of operating a motor vehicle
while intoxicated (OMVWI) (second offense), 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
Ralston for OMVWI following an administrative suspension of his operating
license; and (2) whether Ralston was entitled to a Franks/Mann[2]
evidentiary hearing by virtue of an affidavit purporting to show material
misrepresentations in the criminal complaint.
We
conclude: (1) prosecuting
Ralston 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) the trial court properly found
that Ralston had failed to make a sufficient preliminary showing under State
v. Mann, 123 Wis.2d 375, 367 N.W.2d 209 (1985), to mandate an
evidentiary hearing. We therefore
affirm the judgment.
DOUBLE
JEOPARDY
Ralston's
objection to this prosecution on the basis that it violates the Double Jeopardy
Clause 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 the Double Jeopardy Clause does not bar criminal prosecution for
OMVWI when the defendant's driver's license has been administratively
suspended. Id. at 553,
543 N.W.2d at 503. While Ralston
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.
FRANKS/MANN HEARING
The
criminal complaint against Ralston was sworn to and signed by Detective James
McCarthy of the Town of Madison Police Department. It included the following statements:
Further, your
complainant has read the official law enforcement agency reports prepared by
Town of Madison Police Officer D. Stapleton, whom your complainant knows to be
a duly certified [I]ntoxilyzer operator, certified by the State of Wisconsin
and qualified by training and experience to operate an [I]ntoxilyzer machine;
said reports having been prepared, filed and maintained in the ordinary course
of business. ... Your complainant is further informed by the [I]ntoxilyzer
operator that the operator has followed the recommended procedures for the
calibration and operation of the [I]ntoxilyzer machine during the analysis of
the defendant's breath. Your
complainant further states that he personally knows that the [I]ntoxilyzer
machine used on the defendant's breath has been regularly maintained and
certified for accuracy.
Ralston
moved to dismiss the criminal complaint on the ground that the foregoing
statements were false. In support of
his motion, Ralston filed an affidavit of a private investigator who had
interviewed Detective McCarthy. The
affidavit included the following statements:
5. McCarthy informed your affiant
that he has not seen a certification of Officer D. Stapleton of the Town of
Madison Police Department certifying that Stapleton is a certified Intoxilyzer
operator. McCarthy stated to your
affiant, "He must be because he operates the Intoxilyzer."
6. McCarthy informed your affiant
that he has not seen training certificates of Officer Stapleton pertaining to
Intoxilyzer training and that he does not know where training records are
located at the Town of Madison police department.
7. McCarthy informed your affiant
that he has not reviewed the maintenance records of the Intoxilyzer machine
located at the Town of Madison Police Department.
8. McCarthy informed your affiant
that he did not check the certification of the Intoxilyzer or check for the
accuracy of the machine prior to signing the complaint in this action.
9. McCarthy
stated to your affiant, "You know this is bull shit, the only thing I
swear to is that the report corresponds to the complaint. I'm not swearing to the truthfulness o[f]
Stapleton ...
Ralston
argues that the statements attributed to McCarthy in the affidavit constitute a
sufficient preliminary showing under State v. Mann, 123 Wis.2d
375, 367 N.W.2d 209 (1985), that McCarthy
had made false material statements in the complaint, and therefore, an
evidentiary hearing on the issue is mandated.
The trial court denied Ralston's request for a hearing, finding "an
adequate showing to support such a hearing has not been made by the
affidavit."
The trial court's determination represents
the application of law to undisputed facts, which we review independently
without deference to the decision of the trial court. Ball v. District No. 4, Area Board, 117 Wis.2d 529,
537, 345 N.W.2d 389, 394 (1984).
The
Wisconsin Supreme Court in Mann identified four requirements for
the preliminary showing needed to mandate an evidentiary hearing when a
defendant alleges that a criminal complaint contains false material
statements: (1) the allegations
must be stated in an affidavit or offer of proof; (2) the
misstatements must be identified; (3) the part of the complaint
rendered inadequate for a finding of probable cause because of the
misstatements must be identified; and (4) when the alleged
misstatements are omitted from the complaint, the complaint must be
insufficient to support a finding of probable cause. Mann, 123 Wis.2d at 388, 367 N.W.2d at 214-215.
Ralston
has met the first and third requirements in that he has submitted an affidavit
which identifies the parts of the complaint that he claims to be "rendered
inadequate" by misstatements. He
has failed to meet the second requirement, however, because he has not
identified misstatements in the criminal complaint. As the trial court noted, McCarthy's statements to the
investigator do not controvert McCarthy's statements in the complaint that he
knows or personally knows certain facts.
At
best, the affidavit negates several possible sources for McCarthy to have
obtained knowledge or personal knowledge of the certification of the
Intoxilyzer and its operator. The fact
of McCarthy's knowledge of these matters, however, is not controverted by his
statements in the affidavit. More
importantly, whether the machine and operator were each in fact certified is
not even remotely called into question by the affidavit. Had the investigator during his visit to the
Town of Madison Police Department discovered that either the Intoxilyzer or the
operator were not certified, an affidavit to that effect would directly refute
the veracity of McCarthy's statements in the criminal complaint.
Because
we find that Ralston's affidavit fails to identify misstatements in the
criminal complaint, we do not address whether the complaint would have sufficient
content to support a finding of probable cause even with all statements
regarding certification of the Intoxilyzer and its operator excised.
By
the Court.—Judgment affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.