COURT OF
APPEALS DECISION DATED AND
RELEASED December
12, 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. 96-1202
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
VILLAGE
OF OREGON,
Plaintiff-Respondent,
v.
MARK
A. FEILER,
Defendant-Appellant.
APPEAL
from an order of the circuit court for Dane County: STUART A.
SCHWARTZ, Judge. Affirmed.
DYKMAN,
P.J. This is a single-judge appeal
decided pursuant to § 752.31(2)(c), Stats. Mark A. Feiler appeals from a circuit court
order affirming a Village of Oregon Municipal Court decision. The municipal court found Feiler guilty of
operating a motor vehicle with a prohibited blood alcohol level (BAC),
operating a motor vehicle while under the influence of an intoxicant (OMVWI),
and disorderly conduct. During trial,
the court ruled that the results of Feiler's intoxilyzer test were entitled to
automatic admissibility. The court also
considered Feiler's refusal to perform field sobriety tests as evidence of his
guilt. Feiler challenges the admission
of this evidence. We conclude that the court properly admitted this evidence
and therefore affirm.
BACKGROUND
On
May 6, 1995, at 1:35 a.m., Officer Paul Rink stopped Feiler's vehicle for
speeding. When Officer Rink approached
Feiler's vehicle and requested his driver's license, he noticed an odor of
intoxicants on Feiler's breath.
Pursuant to Officer Rink's request, Feiler exited his car, placing his
left hand on the driver's side door and his right hand on the roof of the
vehicle. As Feiler walked to the back
of his vehicle, Officer Rink observed him sway from side to side. Officer Rink explained several different
field sobriety tests to Feiler. Feiler
refused to perform any of the tests, stating that all he wanted was a breathalyzer
test. Officer Rink administered a
preliminary breath test to Feiler, which registered .10. Feiler was placed under arrest for OMVWI and
taken to the police station.
At
the police station, Officer Rink read the Informing the Accused form to
Feiler. The form read to Feiler stated:
If you have a prohibited alcohol concentration or you
refuse to submit to chemical testing and you have two or more prior
suspensions, revocations or convictions within a five year period
which would be counted under s. 343.307(1) Wis. Stats., a motor vehicle owned
by you may be equipped with an ignition interlock device, immobilized or seized
and forfeited.
(Emphasis added.)
Effective April 30, 1994, however,
§ 343.305(4), Stats.,
was amended, and the period during which prior offenses are to be considered
was expanded to ten years.
Feiler
agreed to submit to an intoxilyzer test, which was then administered by Officer
James Bowen. The result of the test was
.11, and Feiler was issued citations for BAC and OMVWI.
At
a September 19, 1995 trial, the municipal court found Feiler guilty of BAC,
OMVWI, and disorderly conduct. During
trial, the court found that Officer Rink substantially complied with
Wisconsin's implied consent law prior to asking Feiler to submit to the
intoxilyzer test, and therefore the results of the test were entitled to
automatic admissibility. The court also
considered Feiler's refusal to perform field sobriety tests as evidence of his
guilt.
Feiler
appealed the municipal court decision to the Dane County Circuit Court pursuant
to § 800.14, Stats. The circuit court affirmed, and Feiler
appeals.
INFORMING THE ACCUSED FORM
In State v. Zielke,
137 Wis.2d 39, 403 N.W.2d 427 (1987), the supreme court held that "[i]f
the procedures set forth in § 343.305, Stats., are not followed the State
not only forfeits its opportunity to revoke a driver's license for refusing to
submit to a chemical test, it also loses its right to rely on the automatic
admissibility provisions of the law, sec. 343.305(7)." Id. at 49, 403 N.W.2d at
431. Feiler argues that Officer Rink,
when he read the outdated Informing the Accused form, failed to comply with the
provisions of the implied consent law and lost the presumption of automatic
admissibility of the results of the intoxilyzer test. Therefore, Feiler argues, the court erred when it admitted the
result of the intoxilyzer test without expert testimony to establish a
foundation for its admission.
Because
the officer substantially complied with the provisions of the implied consent
law, we reject Feiler's argument. In State
v. Sutton, 177 Wis.2d 709, 503 N.W.2d 326 (Ct. App. 1993), we held that
so long as an officer's misstatement did not prejudice the accused's decision
to submit to or refuse testing, the officer had substantially complied with
§ 343.305(4), Stats. Id. at 715, 503 N.W.2d at
328. Substantial compliance is
"actual compliance in respect to the substance essential to every
reasonable objective of the statute."
State v. Muente, 159 Wis.2d 279, 281, 464 N.W.2d 230, 231
(Ct. App. 1990). The implied consent
warnings are designed to inform drivers of the rights and penalties applicable
to them. County of Ozaukee v.
Quelle, 198 Wis.2d 269, 279, 542 N.W.2d 196, 199 (Ct. App. 1995).
The
provision of the implied consent law that was misstated on the form read to
Feiler related to persons with prior convictions for driving while
intoxicated. However, this was Feiler's
first offense. Feiler failed to present
any evidence as to how his decision to submit to or refuse testing was
prejudiced by the misstatement. Given
the lack of evidence of prejudice and the fact that Feiler was properly
informed of all provisions that were applicable to him, the officer
substantially complied with the implied consent law. Therefore, the results of the intoxilizer test were automatically
admissible under § 343.305(5)(d), Stats.
Feiler
attempts to distinguish the "substantial compliance" cases on the
ground that they were refusal cases and did not address the question of automatic
admissibility of test results. We are
not persuaded. If substantial
compliance is sufficient to invoke the revocation provisions of the implied
consent law for refusal to submit to testing, we see no reason why substantial
compliance should not be sufficient to invoke the automatic admissibility
provisions. The trial court did not err
in admitting the results of the intoxilyzer test.
REFUSAL TO
PERFORM FIELD SOBRIETY TESTS
Feiler
also argues that the trial court erred in receiving evidence of his refusal to
perform field sobriety tests. In State
v. Babbitt, 188 Wis.2d 349, 525 N.W.2d 102 (Ct. App. 1994), we held
that evidence of a defendant's refusal to submit to field sobriety tests was
admissible at a probable cause hearing.
We said, "In the interest of clarity, we note that our conclusion
should not be construed to mean that a defendant's refusal to submit to a field
sobriety test may be used as evidence at trial." Id. at 363, 525 N.W.2d at 107. Feiler argues that this statement must be
construed as not permitting a prosecutor to use such evidence at trial.
The
question of whether the court properly considered Feiler's refusal to perform
field sobriety tests raises the issue of whether Feiler had a constitutionally
protected right to refuse to perform the tests. It is unclear from Feiler's argument whether he is claiming a
constitutionally protected right under the Fourth or Fifth Amendment to the
United States Constitution. Feiler
argues that just as a defendant has a right to remain silent and that silence
cannot be commented upon at trial, so too a defendant has a right not to
cooperate with an officer during an investigative or "Terry-stop."[1] He concludes that non-cooperation cannot be
considered at trial. However, Feiler's
arguments are not supported by case law.
Feiler
was pulled over as a result of a routine traffic stop. Such a stop, while a seizure under the
Fourth Amendment, is not an arrest, but an investigative or "Terry-stop." See County of Dane v. Campshure,
204 Wis.2d 27, 30-31, 552 N.W.2d 876, 877 (Ct. App. 1996). In Campshure, we held that
when an officer has reasonable suspicion that a driver is intoxicated, a
request to perform field sobriety tests is reasonably related in scope to the
purposes of the stop and does not convert a traffic stop into an arrest. 204 Wis.2d at 32, 552 N.W.2d at 878.
Feiler
argues that during a "Terry-stop," the suspect has no
obligation to cooperate with the officer.
However, the language Feiler cites from Florida v. Royer,
460 U.S. 491 (1983), is part of the Court's discussion of the rights of a
person approached by an officer who has no reasonable suspicion of
wrong-doing. The statement does not
refer to a suspect's rights or duties during the course of a "Terry-stop." See id. at 497-498. The Court acknowledges that "reasonable
suspicion of criminal activity warrants a temporary seizure for the purposes of
questioning limited to the purposes of the stop." Id. at 498.
We
have already determined that when an officer has reasonable suspicion that a
suspect is intoxicated, a request to perform field sobriety tests is reasonably
related in scope to the purposes of the stop.
Campshure, 204 Wis.2d at 32, 552 N.W.2d at 878. The question of whether reasonable suspicion
exists is a question of law which we review de novo. State v. Krier, 165 Wis.2d
673, 676, 478 N.W.2d 63, 65 (Ct. App. 1991).
"The question of what constitutes reasonable suspicion is a common
sense test. Under all the facts and
circumstances present, what would a reasonable police office reasonably suspect
in light of his or her training or experience?" State v. Jackson, 147 Wis.2d 824, 834, 434 N.W.2d
386, 390 (1989).
Officer Rink stopped
Feiler's automobile because he was speeding, and in the course of his
investigation, the officer noticed a strong odor of intoxicants and observed
Feiler sway from side to side as he walked.
Under these circumstances, Officer Rink had a reasonable suspicion that
Feiler was intoxicated. Therefore, the
officer's request that Feiler submit to field sobriety tests was
reasonable. There was no Fourth
Amendment violation that would prohibit introduction of evidence at trial of
Feiler's refusal to perform field sobriety tests.
While
a driver does have a constitutional right not to answer an officer's questions
during a traffic stop, there is no constitutionally protected right not to
perform field sobriety tests. The
United States Supreme Court has held that there is no constitutional right to
refuse to submit to blood alcohol testing.
South Dakota v. Neville, 459 U.S. 553 (1983). The Court stated that the Fifth Amendment is
designed to prohibit the use of physical or moral compulsion and that the
values behind the Fifth Amendment are not hindered when the State offers a
suspect the choice of submitting to a blood alcohol test or having a refusal
used against him or her. Id.
at 562-63. The Court held that "a
refusal to take a blood-alcohol test, after a police officer has lawfully
requested it, is not an act coerced by the officer, and thus is not protected
by the privilege against self-incrimination." Id. at 564.
We
have reached the same conclusion with respect to a refusal to submit to field
sobriety testing: "Like an
Intoxilyzer test, suspects also have no fifth amendment right to refuse to
perform a field sobriety test." State
v. Babbitt, 188 Wis.2d 349, 361, 525 N.W.2d 102, 106 (Ct. App.
1994). We held that a refusal to
perform a field sobriety test is not compelled in violation of the Fifth
Amendment because the suspect is not required to perform the test. Id. at 361-62, 525 N.W.2d at
106. And just as a refusal to take an
intoxilyzer test is relevant evidence of consciousness of guilt, so too is the
refusal to perform a field sobriety test.
Id. at 359, 525 N.W.2d at 105.
There
are no Fourth or Fifth Amendment protections which bar the admission at trial
of evidence of refusal to submit to field sobriety testing. As the supreme court noted in State v.
Crandall, 133 Wis.2d 251, 259, 394 N.W.2d 905, 908 (1986), "The
person who cooperates by taking the breathalyzer test will have the result
presented at trial. In fairness to
those defendants, we do not believe the defendant who refuses to take the test
should have no mention of that made at trial." The same policy of not wanting to give suspects an incentive to
refuse to submit to breathalyzer tests also applies to field sobriety
testing. Therefore, the trial court did
not err in considering evidence of Feiler's refusal to submit to field sobriety
testing as evidence of consciousness of guilt.
By
the Court.—Order affirmed.
Not
recommended for publication in the official reports. See Rule
809.23(1)(b)4, Stats.