COURT OF APPEALS DECISION DATED AND RELEASED November 21, 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. 96-1266
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
TIMOTHY S. KUKLINSKI,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Dane County: P. CHARLES JONES, Judge. Affirmed.
ROGGENSACK,
J. Timothy S. Kuklinski appeals an order revoking his driver's
operating privileges for refusing to submit to breath testing. The issues on appeal are (1) whether the
state lawfully arrested Kuklinski for driving under the influence of an
intoxicant; (2) whether the state provided Kuklinski with the information
required by § 343.305(9)(a)5.b., Stats.;
and (3) whether Kuklinski improperly refused to submit to breath testing. Because this court[1]
concludes that Kuklinski was lawfully arrested, that the state provided all
information required by statute, and that Kuklinski improperly refused to
submit, the order is affirmed.
BACKGROUND
Madison Police Officer
John Radovan was dispatched to the scene of a two-car accident on November 5,
1995, at approximately 3:55 p.m. Upon
his arrival, Radovan spoke with Ronald Raemisch, who told the officer that his
car had been rear-ended. While Radovan
was speaking with Raemisch, Kuklinski approached him and said that Raemisch had
cut in front of him, braked quickly and caused the accident. Radovan observed Kuklinski had very
bloodshot eyes, slurred his words, walked with an unsteady gait and was unable
to control his anger.
Radovan normally asks
both drivers at an accident scene to wait in the back of his squad car while he
sorts things out. However, because
Kuklinski seemed so angry, Radovan separated the drivers to avoid an
altercation. He asked Kuklinski to sit
in the back of the squad car and Raemisch to sit in the back of his own
vehicle.
When Radovan began questioning
Kuklinski, he detected a strong odor of intoxicants on his breath. Radovan asked whether Kuklinski had been
drinking. Kuklinski initially denied
it, but when Radovan told Kuklinski he smelled like alcohol, Kuklinski admitted
having two beers. After Radovan gave
Kuklinski several field sobriety tests, Radovan arrested Kuklinski for
operating a motor vehicle while under the influence of an intoxicant and
transported him to the Dane County Public Safety Building.
At the Safety Building,
Radovan issued Kuklinski a citation for operating a motor vehicle while
intoxicated and then reviewed the Informing the Accused form with him. Radovan asked Kuklinski to take a breath
test. Initially, he refused, but after
he was told that his license would be revoked if he continued to refuse, he
agreed to blow into the machine. His
breath samples were inadequate and he was asked to give additional breath
samples. He refused again.
At the refusal hearing,
Kuklinski challenged the legality of Radovan's request that he wait in the back
of the squad. Once in the squad,
Kuklinski would not have been able to leave, because the squad's back seat
doors would not open from the inside.
Kuklinski also alleged the statutorily required information had been
given too late and therefore, he had not improperly refused to be tested.
The trial court held
Radovan had reasonable suspicion to detain Kuklinski for field sobriety tests,
and after the completion of those tests, there was probable cause to lawfully
arrest him for driving under the influence.
The trial court also found that Kuklinski was informed that refusing to
submit to a breath test would result in license revocation; that he had refused
to provide two separate, adequate breath samples, as required by statute; and
therefore, he had improperly refused to submit.
The trial court's
factual findings and legal conclusions are fully supported by the record and
the law. Therefore, the order is
affirmed.
DISCUSSION
Scope
of Review.
This court will
determine de novo whether undisputed facts show probable cause. State v. Babbitt, 188 Wis.2d
349, 356, 525 N.W.2d 102, 104 (Ct. App. 1994).
Statutory construction presents a question of law; therefore, this court
reviews whether the state fulfilled the requirements of § 343.305(9)(a)5.b., Stats., de novo. Behnke v. Behnke, 103 Wis.2d
449, 452, 309 N.W.2d 21, 22 (Ct. App. 1981).
However, factual findings of the trial court, such as the occurrence or
sequence of certain events, will be upheld unless they are clearly erroneous. See § 805.17(2), Stats.
The
Refusal Hearing.
The issues which are
determined at a refusal hearing are limited, as established by
§ 343.305(9)(a)5. That section
states in material part:
The issues of the hearing are limited to:
a. Whether the officer had probable
cause to believe the person was driving or operating a motor vehicle while
under the influence of alcohol ... or a degree which renders the person
incapable of safely driving ... and whether the person was lawfully placed
under arrest for violation of § 346.63(1) ....
b. Whether the officer complied with
sub. (4) or both subs.(4) and (4m).
c. Whether
the person refused to permit the test ....
At a refusal hearing, in
terms of the probable cause inquiry, the trial court must simply ascertain the
plausibility of the police officer's account in regard to his belief that there
was probable cause to arrest the defendant for driving a motor vehicle while
intoxicated. A refusal hearing is not a
forum to weigh the state's and the defendant's evidence. State v. Nordness, 128 Wis.2d
15, 36, 381 N.W.2d 300, 308 (1986), citing Virgil v. State,
76 Wis.2d 133, 144, 250 N.W.2d 378, 384 (1977). "Probable cause exists where the totality of the
circumstances within the arresting officer's knowledge at the time of the
arrest would lead a reasonable police officer to believe ... that the defendant
was operating a motor vehicle while under the influence of an intoxicant." Nordness, 128 Wis. at 35, 381
N.W.2d at 308.
Kuklinski argues he was
arrested when he was asked to sit in the squad, and that arrest was unlawful
because there was not probable cause at that point in time. He does not dispute
that after he had failed the field sobriety tests, Radovan had probable cause
to arrest him. At a refusal hearing,
the state must demonstrate that probable cause to arrest existed before a
chemical test was requested. There is no dispute that that occurred here.
Prior to arrest, an
officer may detain an individual, if he has a reasonable suspicion which is
based on specific, articulable facts and reasonable inferences from those
facts, that the individual has broken a law.
State v. Griffin, 183 Wis.2d 327, 330-31, 515 N.W.2d 535,
537 (Ct. App. 1994). Before he asked
Kuklinski to sit in the squad, Radovan noted that Kuklinski had been involved
in an automobile accident and had an unstable gait, bloodshot eyes, slurred
speech and an inability to control his anger.
Those facts were sufficient to give Radovan reasonable suspicion to
believe that Kuklinski had broken the law.
Additionally, based on Radovan's request, Kuklinski had no reason to
believe he was then under arrest for driving under the influence. Both drivers were detained, while Radovan
proceeded to investigate the accident.
There was no testimony that Kuklinski had not gone to the squad car
voluntarily or that he tried to open the rear door and found he could not.
When Radovan returned to
the squad, he asked Kuklinski if he had been drinking. Kuklinski responded that he had had two
beers. Thereafter, Radovan conducted
field sobriety tests and then placed Kuklinski under arrest. The trial court was correct in concluding
that under the totality of circumstances a reasonable officer would have
believed that Kuklinski had been driving his vehicle while under the influence
of an intoxicant. Therefore Kuklinski's
arrest was lawful.
In addition, Kuklinski
argues that the state did not meet its obligation under § 343.305(9)(a)5.b., Stats.
Kuklinski does not claim that he was not given the information required
by §§ 343.305(4) and (4m), Stats. He acknowledges Radovan read him the
Informing the Accused form, which provides the requisite statutory information.
However, he argues that because the information was read to him after he
initially refused, it was insufficient.
He attaches much significance to the fact that the Notice of Intent to
Revoke form has a time of 5:15 p.m. noted on it and the Informing the Accused
form has a time of 5:16 p.m. noted on it.
In other words, he argues that his "refusal" was invalid
because it was uninformed.
The state must show that
the officer provided the information required by § 343.305(4) and/or (4m),
and that the driver refused to permit the test. Two police officers testified that Kuklinski was given the
requisite information before the breathalizer test was attempted. The trial
court found that the attempts occurred between 5:24 and 5:36 p.m. The trial court's factual findings are not
clearly erroneous; and therefore, they are sustained. We conclude that the state fulfilled its obligation to provide[2]
all information required by statute.
Kuklinski
also argues that his conduct was not sufficient to conclude that he had refused
to take the requested test. The process
of chemical testing is not a game.
Declining to affirmatively consent to testing in a meaningful way is a
refusal. State v. Luedke,
No. 96-1124 (Wis. Ct. App. Oct. 15, 1996).[3] The statute clearly states that the
"failure to provide 2 separate, adequate breath samples in the proper
sequence constitutes a refusal."
Section 343.305(6)(c)3., Stats.
The trial court found
that when Kuklinski was asked to take a breathalizer test, initially he
refused. But after talking with the
officers further, he appeared to agree.
A breathalizer test was attempted, but Kuklinski provided deficient
samples. When he was requested to
provide additional breath samples, he refused.
The factual findings and legal conclusions of the trial court have
adequate support in the record and in the law.
Kuklinski's conduct was not sufficient to satisfy the statutory
requirement that adequate breath samples be provided. Kuklinski improperly refused to be tested.
CONCLUSION
Kuklinski was lawfully
arrested for a violation of § 346.63(1)(a), Stats., before he was asked to submit to a breath test. Reading the Informing the Accused form
satisfied the state's obligation to provide information and Kuklinski
improperly refused to give a sufficient sample for the breathalizer.
By the Court.--Order
affirmed.
Not recommended for
publication in the official reports. See
Rule 809.23(1)(b)4, Stats.