COURT OF
APPEALS DECISION DATED AND
RELEASED October
24, 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. 96-0842
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
TERRY
L. NORDBERG,
Defendant-Appellant.
APPEAL
from an order of the circuit court for Monroe County: STEVEN L. ABBOTT, Judge. Affirmed.
VERGERONT,
J.[1] Terry
L. Nordberg appeals from an order of the trial court finding that his refusal
to submit to a blood test for alcohol content was unreasonable. On appeal Nordberg contends that the
arresting officer lacked probable cause to believe he was driving while under
the influence of alcohol and that the trial court erred in determining that his
refusal to submit to a blood test was unreasonable. We reject each contention and affirm.
Nordberg
was taken by ambulance to Tomah Memorial Hospital from the scene of a
one-vehicle accident that occurred on Eagle Drive in Monroe County on the
evening of May 27, 1995. Officer
Laird Raiten, who was dispatched to the hospital, read Nordberg the Informing
the Accused form at the hospital and asked Nordberg to submit to the drawing of
blood for chemical testing. Nordberg
refused. Raiten gave Nordberg a
citation for operating while under the influence, first offense, and a notice
of intent to revoke operating privilege based on the refusal. Nordberg timely requested a hearing to
challenge the revocation. Id.
at 3.[2]
Officer
Raiten's testimony at the hearing was as follows. He was informed by Officer Mark Jerdee of the accident while he
was on duty. Jerdee was one of the
officers at the scene of the accident.
Jerdee told Raiten that a pick-up truck had run off the road and struck
a tree and Nordberg was being taken from the accident to Tomah Memorial
Hospital. Jerdee told Raiten that there
was alcohol in the vehicle and cans strewn about, and that the ambulance crew
told him (Jerdee) that they had smelled alcohol on Nordberg's breath. Jerdee told Raiten that based on statements
made to him at the scene of the accident, Nordberg was driving the
vehicle. Jerdee directed Raiten to go
to the hospital, check for injuries, get names, dates and addresses and proceed
with any OWI violations against Nordberg.
When
Raiten arrived at the hospital, he first spoke to James Osmond, a passenger in
the vehicle. Osmond told Raiten that it
was Nordberg's vehicle and that Nordberg was driving. Raiten asked Osmond whether he (Osmond) was driving the vehicle
and Osmond answered, "No, that Terry Nordberg was driving the vehicle." Raiten spoke to Nordberg, who was in the emergency
room of the hospital, and told him that he was there to issue him a citation
for operating under the influence of alcohol.
Nordberg told Raiten that he was not driving. Raiten observed that Nordberg was refusing to stay at the
hospital and was not cooperating with the doctors, who felt he had to stay
there for treatment.
Raiten
read Nordberg the Informing the Accused form paragraph by paragraph, making a
check mark by each paragraph as he read it.
When he asked Nordberg whether he understood, Nordberg mumbled that he
understood. While Raiten read him the
form, Nordberg stated several times that he was not driving. After reading the form, Raiten asked whether
Nordberg would submit to a chemical evidentiary test of his blood and Nordberg
said he would not. Raiten understood at
the time that Nordberg had some possible broken ribs and that is why the
doctors wanted to keep him there.
Raiten did not know what other injuries Nordberg had. Raiten's observation was that Nordberg was
being uncooperative with him and the hospital staff. Raiten conceded on cross-examination that it was possible that
Nordberg might have been in shock at the hospital. Raiten did not administer any field sobriety tests because of
Nordberg's injuries.
On
cross-examination, Raiten acknowledged that he did not specifically state in
his accident report, made shortly after the accident, that Jerdee told him that
Nordberg had smelled of intoxicants at the scene of the accident. But his report did state that Jerdee asked
him to go to the hospital and check for injuries and a possible operating a
motor vehicle while under the influence.
Raiten's report stated that upon his arrival at the hospital, he spoke
with the emergency medical team (EMT) who indicated that both Nordberg and
Osmond had a strong odor of intoxicants coming from them. The report also stated that, "in
speaking with Mr. Nordberg, I couldn't detect if the odor of intoxicants was
coming from his breath or the clothing piled in the emergency room."
James
Osmond testified that he believed he was involved in a one-car motor vehicle
accident on May 27, 1995, but he did not know how the accident occurred. He talked to Nordberg about the accident
after Nordberg got out of the hospital and told Nordberg he could not remember
anything. Nordberg responded,
"Well, I didn't either because I thought I was driving." Osmond testified that he did not know who
was driving.
James
Dornan testified that he was a passenger in a vehicle owned by Nordberg that
was involved in an accident on May 27, 1995.
He testified that Osmond was driving.
Dornan acknowledged that he had made a written statement on the night of
the accident that Nordberg was driving the vehicle, but he said that statement
was not true. He could not explain why
he said Nordberg was driving. Dornan
was "real drunk" at the time of the accident and he was sure all
three were intoxicated. He did recall
finding Nordberg on the ground after the accident and that Nordberg was
unconscious and had a cut above the eye.
Nordberg's
wife testified that she came to the hospital shortly after the accident. Nordberg was there when she arrived. Police officers were present talking to the
doctor but she did not recall observing anyone talking to her husband while she
was there. In her opinion, Nordberg was
not "completely there mentally" because her husband had given the
police officers an address that she had never heard of, an address in Wilton. She later learned that it was an address
where he lived with his mother when he was little. Her observations were that Nordberg was "not acting
normal" at the hospital. She had
seen him intoxicated before and he did not appear to be intoxicated; he
appeared to be in shock. He had
fractured ribs, sternum and had a two-inch cut above his eye. He also had problems with his sinus cavity
and had a CAT scan later for that reason.
Nordberg was transferred from Tomah Memorial Hospital to St. Francis
Medical Center and remained in the hospital for about two weeks. His wife testified that he was
"basically unconscious for four or five days."
On
cross-examination, Nordberg's wife acknowledged that it appeared that he had
some alcohol but she thought "he was more in shock than the
alcohol." She could not smell
intoxicants on his breath. She was with
him approximately fifteen minutes and was very upset during that time.
Nordberg
testified that he was heavily sedated for four to five days after the
accident. He was not sure when he was
given sedation--whether it was at Tomah Memorial or St. Francis Hospital. He was not aware of any head injuries except
the cut above his eye and the nasal infection.
He could not recall anything from the accident on, but he did recall
that Osmond was driving because he recalled that he let Osmond drive from
Mauston. It was his (Nordberg's)
vehicle. He acknowledged that he had
had "a few" that evening but he would not say that he was
intoxicated. In deciding that Officer Raiten had probable
cause to believe that Nordberg was driving while under the influence, the trial
court considered Raiten's testimony that Officer Jerdee had told him there was
an odor of alcohol on Nordberg's breath at the scene of the accident; that
Nordberg owned the truck; that the truck went off the road and ran into a tree;
that there were beer cans in and out of the vehicle; that it was communicated
to Raiten that Nordberg was driving; and that the EMTs told Raiten that
Nordberg and Osmond had a strong odor of intoxicants coming from them and that
Nordberg's injuries matched the damage to the driver's door.
The
parties stipulated to the fact that Officer Raiten complied with the
informational requirements of the statute.
The court also determined there was no dispute that Nordberg refused to
permit a blood test.
With
respect to whether the refusal was due to a physical inability unrelated to the
person's use of alcohol, the court first noted that this was Nordberg's burden
to prove. The court found there was no
evidence that he was physically unable to submit to a test and found the reason
he was in the hospital was probably related to alcohol use. For those two reasons, the court determined
that the defendant's refusal was unreasonable.
At
a refusal hearing, the issues are limited to:
a. Whether
the officer has probable cause to believe the person was driving or operating a
motor vehicle while under the influence of alcohol ... to a degree which
renders him or her incapable of safely driving or having a blood alcohol
concentration of 0.1% or more and whether the person was lawfully placed under
arrest for violation of s. 346.63(1) or a local ordinance in conformity
therewith or s. 346.63(2), 940.09 or 940.25.
b. Whether
the officer complied with par. (a).
c. Whether
the person refused to permit the test.
d. The person shall be deemed not to have
refused the test if it is shown by a preponderance of evidence 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, controlled substances or
other drugs.
State v. Nordness, 128 Wis.2d 15, 25-26, 381 N.W.2d 300, 304 (1986). Nordberg raises only the first and fourth
issues on appeal.
Probable
cause exists when the totality of the circumstances within the arresting
officer's knowledge at the time of the arrest would lead a reasonable officer
to believe that the defendant was operating a motor vehicle while under the
influence of an intoxicant. Nordness,
128 Wis.2d at 35, 381 N.W.2d at 308. An officer's belief may be partially predicated
on hearsay information and the officer may rely on the collective knowledge of
other officers in the department. State
v. Wille, 185 Wis.2d 673, 683, 518 N.W.2d 325, 329 (Ct. App. 1994).
The
State's burden of persuasion at a refusal hearing is substantially less than at
a suppression hearing. Wille,
185 Wis.2d at 681, 518 N.W.2d at 328.
In presenting evidence at a refusal hearing that an officer had probable
cause, the State need only show that the officer's account is plausible. Id. The State need not show probable cause to a reasonable
certainty. Nordness, 128
Wis.2d at 36, 381 N.W.2d at 308. The
trial court does not weigh the evidence between the parties but simply
determines whether or not the officer's account is plausible. Id.
We
conclude that the totality of circumstance within Officer Raiten's knowledge at
the time of the arrest would lead a reasonable officer to believe that Nordberg
was operating the truck and was under the influence of alcohol while doing so.
Raiten
had several pieces of information that made it reasonable to believe Nordberg
had been driving. Officer Jerdee told
him that a passenger in the vehicle said Nordberg was driving. Osmond told Raiten that Nordberg was driving
and that it was Nordberg's vehicle. According
to Raiten's police report, the EMT who had transported Nordberg from the
accident to the hospital told Raiten that the driver's door was smashed in and
this corresponded to Nordberg's injuries.
Raiten did not have to accept Nordberg's denial that he was the driver
when there was information indicating that he was. See State v. Tompkins, 144 Wis.2d 116, 125,
423 N.W.2d 823, 827 (1988). The later
testimony of Dornan and Osmond contradicting their statements on the night of
the accident is not pertinent to our inquiry:
we are concerned with the information Raiten had at the time of the
arrest.
We
also conclude that Raiten could reasonably believe that Nordberg had been under
the influence of an intoxicant while driving.
Raiten knew the circumstances of the accident--that the truck had driven
off the road and hit a tree. From this
a reasonable officer could believe the driver was inattentive or impaired. Raiten knew from Jerdee that the EMT at the
scene of the accident had smelled intoxicants on Nordberg's breath. According to Raiten's police report, the EMT
also told him at the hospital that there was a very strong odor of alcohol
coming from both Nordberg and Osmond.
Nordberg
emphasizes that on cross-examination Raiten acknowledged the statement in his
report that "he could not detect if the odor of intoxicants was coming
from Nordberg or the clothing piled in the emergency room." This statement does not mean, however, that
Raiten did not detect the odor of intoxicants or that he smelled the odor from
another source: it means only that
Raiten could not himself verify that the odor of intoxicants was coming from
Nordberg. However, Raiten did not need
to verify it personally because he could rely on what the emergency medical
team and Officer Jerdee had told him.
We
now consider whether Nordberg has shown by a preponderance of the evidence that
his refusal to submit to the blood test was due to a physical inability to
submit to the test due to a physical disability or disease unrelated to the use
of alcohol. We do not reverse the
findings of the trial court, sitting as the trier of fact on this issue, unless
the findings of fact are clearly erroneous.
See State v. Jackson, 147 Wis.2d 824, 829, 434
N.W.2d 386, 388 (1989).
The
court found that Nordberg was not physically unable to submit to a blood
test. This finding is supported by the
record. There is no evidence that
Nordberg was unable to have blood drawn from his arm due to a physical
inability. It appears his argument is
that he was not sufficiently lucid to understand what was being asked. However, Raiten's testimony is evidence that
Nordberg was conscious and able to understand and to communicate when Raiten
asked him to submit to the test. The
trial court chose to credit Raiten's testimony over Nordberg's vague testimony
that he could not remember anything after the accident or remember when he was
sedated, and over Nordberg's wife's testimony that Nordberg was in shock at the
hospital and was unconscious for four or five days after the accident. When the trial court sits as the finder of
fact, it is the arbiter of the credibility of witnesses and the weight to be
given witnesses. Gehr v. City of
Sheboygan, 81 Wis.2d 117, 122, 260 N.W.2d 30, 33 (1977).
There
was no medical evidence that any of Nordberg's
injuries caused shock or caused him to be unable to understand what
Raiten was asking him. There was
evidence that he had consumed alcohol.
The trial court properly determined that Nordberg did not meet the
burden necessary to overcome the fact of his refusal to submit to the
test.
By
the Court.—Order affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.
[2] Section 343.305(2), Stats., known as the implied consent law, states that any
person who drives a vehicle on the public highways of this state is deemed to
have given his consent for chemical testing when requested to do so by a law
enforcement officer. A law enforcement
officer may request a person to submit to a blood test upon arrest for
operating a motor vehicle while under the influence of an intoxicant. Section 343.305(3)(a). The officer must inform the arrestee of the
arrestee's implied consent to a test; that if the arrestee refuses the test his
license shall be revoked; and that the arrestee may have an additional test
performed. Section 343.305(4)(d). If testing is refused, the officer issues a
notice of intent to revoke the person's operating privileges, and operating
privileges are revoked unless a hearing is requested. Section 343.305(9) and (10).