COURT OF
APPEALS DECISION DATED AND
RELEASED October
10, 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. 96-1265
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
TRACY
A. KIEFER,
Respondent-Appellant.
APPEAL
from an order of the circuit court for Dane County: STUART A.
SCHWARTZ, Judge. Affirmed.
DYKMAN,
P.J.[1] Tracy
A. Kiefer appeals from an order revoking his operating privileges for one year,
pursuant to § 343.305(10)(b)2, Stats.,
for refusing to submit to a breath test.
Kiefer argues that: (1) he was inadequately warned under the
informed consent law, § 343.305, Stats.;
(2) his due process rights were violated because the Informing the Accused
form is confusing; and (3) the officer did not read him the Informing the
Accused form prior to requesting him to submit to chemical testing. We reject Kiefer's arguments, and therefore
affirm.
BACKGROUND
On
September 16, 1995, at approximately 11:50 p.m., Dane County Sheriff's Deputy
Michelle Shelhamer observed Kiefer's vehicle cross the center line several
times. She stopped Kiefer's
vehicle. Upon noticing that Kiefer's
eyes were bloodshot and smelling a strong odor of intoxicants, Deputy Shelhamer
asked Kiefer to perform several field sobriety tests. Deputy Shelhamer then administered a preliminary breath test,
which registered .19. She arrested
Kiefer for operating a motor vehicle while under the influence of an intoxicant
and took him to the Public Safety Building.
Deputy
Shelhamer testified that she took Kiefer into the intoxilyzer room, read him
the Informing the Accused form and requested a chemical test of his
breath. Kiefer initially consented to
the test. When Deputy Sanke attempted
to administer the test, however, Kiefer bit the mouthpiece and did not make a
tight seal around it as instructed. He
then backed away from the intoxilyzer.
Deputy Sanke terminated the test and marked it as a refusal.
The
trial court found that Kiefer was given the Informing the Accused form at 12:45
a.m., the Notice of Intent to Suspend Operating Privileges at 1:05 a.m., the
Administrative Review Request form at an unspecified time, but after the notice
of suspension, and the Notice of Intent to Revoke at 1:15 a.m. Deputy Shelhamer completed the Alcohol
Influence Report at 1:30 a.m.
At
the refusal hearing on April 22, 1996, Kiefer argued that the State failed to
establish that Deputy Shelhamer had complied with Wisconsin's implied consent
law procedures. The circuit court held
that Kiefer had been properly informed and had unlawfully refused to submit to
chemical testing. The circuit court
ordered that Kiefer's operating privileges be revoked for one year. Kiefer appeals.
QUELLE TEST
Kiefer
argues that the order revoking his operating privileges should be reversed
because the arresting officer did not adequately comply with the requirements
of the informed consent law, § 343.305, Stats. The application of a statute to a particular
set of facts is a question of law, which we review de novo. DOR v. Sentry Fin. Servs. Corp.,
161 Wis.2d 902, 910, 469 N.W.2d 235, 238 (Ct. App. 1991).
In
County of Ozaukee v. Quelle, 198 Wis.2d 269, 542 N.W.2d 196 (Ct.
App. 1995), we established a three-part test for assessing the adequacy of the
warning process under the implied consent law:
(1) Has the law enforcement officer
not met, or exceeded his or her duty under §§ 343.305(4) and 343.305(4m) to
provide information to the accused driver;
(2) Is the lack or oversupply of
information misleading; and
(3) Has
the failure to properly inform the driver affected his or her ability to make a
choice about chemical testing?
Id. at 280, 542 N.W.2d
at 200. If all three elements of the Quelle
test are satisfied, the officer has failed to comply with the statutory
requirements of the informed consent law, and the driver's operating privileges
cannot be revoked for refusing to submit to chemical testing. See id. at 278-79, 542
N.W.2d at 199-200; State v. Zielke, 137 Wis.2d 39, 48-49, 403
N.W.2d 427, 431 (1987).
Section
343.305(9), Stats., provides that
the penalty for refusal is judicial revocation, not suspension. Deputy Shelhamer exceeded her duty under
§ 343.305(4) by providing Kiefer with the Notice of Intent to Suspend
Operating Privileges, and this information was misleading because Kiefer was
not suspended for refusing to submit to testing. Therefore, the first and second prongs of the Quelle
test are satisfied.
Regarding
the third prong of the Quelle test, Kiefer argues that he refused
to submit to the chemical breath test because the notice of suspension
indicated he had already been suspended for six months. The trial court, however, found that Kiefer
was given the notice of suspension after he refused to submit to the
second test. We will uphold the trial
court's findings of fact unless they are clearly erroneous. Section 805.17(2), Stats.
The
trial court based its findings primarily on the times that Deputy Shelhamer had
indicated on the various forms. The
trial court noted that its findings were consistent with the testimony of
Deputy Shelhamer. The court also
concluded that, given Kiefer's state of intoxication after arrest, his
testimony as to the sequence of events in the intoxilyzer room was somewhat
suspect. When the trial court acts as
the finder of fact, "it is the ultimate arbiter of both the credibility of
witnesses ... and the weight to be given to each witness' testimony." In re Estate of Czerniejewski,
185 Wis.2d 892, 898, 519 N.W.2d 702, 704-05 (Ct. App. 1994) (citations
omitted). The trial court's findings
are not clearly erroneous, and therefore we will not set them aside.
Kiefer
had already refused to take the test when the notice of suspension was provided
to him. Therefore, the failure of
Deputy Shelhamer to properly inform him did not affect his ability to make a
choice about chemical testing. As
Kiefer had already decided to refuse testing prior to receiving the misleading
information, the third prong of the Quelle test is not
satisfied. Therefore, Kiefer's refusal
was unlawful and his operating privileges were properly revoked.
DUE
PROCESS
Kiefer
argues that the Informing the Accused form is confusing and that it is a due
process violation to revoke his operating privileges due to his confusion in
the interpretation of the form.
Complaints about the adequacy of the Informing the Accused form are
questions of law, which we review without deference to the trial court. State v. Drexler, 199 Wis.2d
128, 136, 544 N.W.2d 903, 906 (Ct. App. 1995).
In
Village of Oregon v. Bryant, 188 Wis.2d 680, 524 N.W.2d 635
(1994), the Wisconsin Supreme Court held as a matter of law that the informed
consent law and the Informing the Accused form are not contradictory or misleading. Id. at 693-94, 524 N.W.2d at
640. The court concluded "that the
only basis asserted as a violation of due process—that the accused was either
misinformed or the statutes were hopelessly confused and contradictory—is
without foundation." Id.
at 692, 524 N.W.2d at 640. Likewise, we
conclude that Kiefer's due process rights were not violated.
READING OF THE
INFORMING THE ACCUSED FORM
Kiefer
argues that the officer did not read him the Informing the Accused form prior
to requesting him to submit to chemical testing, as required by
§ 343.305(4), Stats. The trial court's findings contradict his
contention, however, as the court found that "[Kiefer] refused to take the
test after he was given the information on the informing the accused
document." (Emphasis added.) The trial court's finding is supported by
the testimony of Kiefer himself, who specifically recalled being read the
Informing the Accused form. We uphold
the court's finding because it is supported by the evidence and is not clearly erroneous. Therefore, Kiefer was sufficiently informed
under § 343.305(4).
By
the Court.—Order affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.