COURT OF APPEALS DECISION DATED AND RELEASED October 16, 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. 96-1845-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
RANDY S. ERTMAN,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Manitowoc County: DARRYL W. DEETS, Judge. Affirmed.
BROWN, J. Randy
S. Ertman contends that the arresting officer violated his rights under the
implied consent law. Because an accused
driver's license may not be suspended if he or she passes at least one blood
alcohol test, Ertman contends that the arresting officer should have apprised
him of the potential benefits of volunteering for a second test. However, we hold to precedent, which states
that an arresting officer's only duty is to inform an accused driver that such
additional testing is available, not that such testing may later prove
helpful. We affirm the trial court's
order permitting the State to use Ertman's test results and his conviction for
operating a motor vehicle with a prohibited blood alcohol concentration.
On May 7, 1995, Ertman
was involved in a minor traffic accident near the town of Cooperstown. When the arresting officer came to the
scene, he saw Ertman exhibit signs of intoxication. The arresting officer performed several field sobriety tests, which
Ertman failed.
The arresting officer
placed Ertman in custody and took him to a local hospital for blood alcohol
testing. The officer read Ertman the
Department of Transportation's standard Informing the Accused form and obtained
Ertman's consent to have a blood sample taken.
The sample was sent to the state laboratory. The report came back a few days later, indicating that Ertman's
blood alcohol level was 0.194%. On the
basis of these results, the officer issued Ertman a citation for operating a motor
vehicle with a prohibited blood alcohol concentration. See § 346.63(1)(b), Stats.
Ertman later filed a
motion to suppress the test results.
Relying on Village of Oregon v. Bryant, 188 Wis.2d 680,
524 N.W.2d 635 (1994), Ertman argued that the arresting officer had violated
his right to seek alternative testing under the implied consent law. Ertman explained how the language of the
Informing the Accused form stated that his privileges would be revoked if “any”
test reports came back positive. Because
the state laboratory did not report back for a few days, however, Ertman did
not immediately know if he had failed his first test and thus could not assess
whether it was reasonable to take the risk that additional tests would also
prove positive. Ertman thus claimed
that he could not reasonably determine if he should seek another test.
Moreover, Ertman raises
a related complaint that the officer did not inform him that he actually could
have avoided criminal liability, without incurring any further risk, by
pursuing the option for more testing.
Had Ertman taken a second test, and had it come back negative, then the
negative results would have been grounds for upsetting any administrative
license revocation during the DOT hearing that follows an OWI arrest. See § 343.305(8)(b)2.d, Stats.
But had this second test proved positive, he would not have risked
incurring more criminal liability because additional positive tests do not
increase the potential penalty.
The trial court granted
Ertman's motion to suppress the blood test results. In an oral ruling, the court explained that it agreed with
Ertman's analysis of Bryant and his claim that he was unable to
make a reasonably informed decision about whether to pursue additional testing
on the night of his arrest.
However, the trial court
later granted the State's request to modify the suppression remedy and amended
its earlier order. While the trial
court confirmed its earlier conclusion that Ertman had not been completely
informed about the full ramifications of alternative testing, the court
explained that he had at least been informed that he had a right to alternative
testing. Since the trial court thus
perceived no problem in the method that the State used to obtain its test
result evidence, the court determined that the better remedy was to simply
limit the State's use of this evidence.
It thus ruled that the State was not entitled to the presumption that
Ertman was intoxicated. See
§ 885.235, Stats.
Facing this modified
ruling, Ertman subsequently decided to enter a no contest plea. He preserved, however, his right to appeal
the trial court's evidentiary conclusions.
Ertman now contends that
the trial court erred when it modified the original suppression order. Ertman urges us to enforce the accused
driver's rights that he claims exist under the implied consent law as
interpreted in Bryant, and to hold that suppression is indeed the
proper remedy.[1] This issue involves a question of law that
we review independently of the trial court.
See State v. Piskula, 168 Wis.2d 135, 141-42, 483
N.W.2d 250, 252 (Ct. App. 1992).
We conclude that State
v. Drexler, 199 Wis.2d 128, 544 N.W.2d 903 (Ct. App. 1995), is squarely
on point and dictates that we reject Ertman's claims.[2] In Drexler, the accused driver
similarly consented to a blood alcohol test which came back positive a few days
after his arrest. And on appeal, the
driver also claimed that his rights under the implied consent law were violated
because he was not told on the night of his arrest that additional testing
might yield a negative result which would, in turn, help him during the DOT
administrative proceedings that follow an OWI arrest. Id. at 139, 544 N.W.2d at 907. The court nonetheless rejected the driver's
claim, reasoning that he “was given all of the information mandated by due
process and the [implied consent law].”
Id. at 140, 544 N.W.2d at 907.
We acknowledge that City
of Waupaca v. Javorski, 198 Wis.2d 563, 543 N.W.2d 507 (Ct. App. 1995),
appears to have reached the opposite result.
There, a District IV panel faced a comparable claim by an accused driver
who was given a blood test and who believed that the police violated the implied
consent law because they did not inform him of the “potential advantage of
submitting to an alternative test.” See
id. at 571, 543 N.W.2d at 511 (emphasis removed; source
omitted). The Javorski
panel sided with the driver, holding that the manner in which he was informed
of his implied consent rights was “misleading.” Id. at 572, 543 N.W.2d at 511.
Nonetheless, the
apparent rift between Drexler and Javorski over
what an arresting officer must tell an accused driver does not affect our
analysis of Ertman's claim.[3] For even if we applied the Javorski
analysis, Ertman's claim that the trial court should have suppressed his test
results would still fail. Although the Javorski
panel concluded that there was a violation of the driver's implied consent
rights, it also held that such a violation did not demand that his test results
be suppressed. Id. at
574-75, 543 N.W.2d at 512; see also County of Dane v. Granum, 203
Wis.2d 252, 258, 551 N.W.2d 859, 861 (Ct. App. 1996) (explaining that Javorski
does not support the exclusion of blood test results). So while the reasoning of Javorski
might favor Ertman, its net holding does not.[4]
In sum, we hold that Drexler
controls this case and that Ertman presents no viable challenge to the
procedures followed by the arresting officer.
Since the arresting officer delivered Ertman all of the warnings that
are mandated by the implied consent law, see § 343.305(4), Stats., Ertman received all of the
information that was due him. See Drexler,
199 Wis.2d at 140, 544 N.W.2d at 907.
Ertman's claim that the officer somehow misled him has no legal
weight. And even if Javorski
is correct, that case and Granum provide no relief for Ertman
inasmuch as they ruled that the remedy is not suppression.
Finally, although the
holding in Drexler seemingly opposes the legal analysis that
underpins the trial court's modified suppression order, we note that the State
has not filed a cross-appeal to challenge this evidentiary ruling. We recognize that the State probably had
little incentive to challenge the trial court's position on this evidentiary
matter because of Ertman's no contest plea.
Still, because the State has not filed a cross-appeal, we affirm the
trial court's modified order.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1]
We treat Ertman's claim as purely related to his statutory rights under
the implied consent law. In his
statement of Issues Presented For Review, he writes:
I. Does the standard “Informing the Accused” form violate an
individual's statutory rights by affirmatively misleading an individual into
foregoing a second BAC test, thereby preventing an individual from obtaining
material and relevant evidence?
Although in later sections of the brief Ertman hints that his due process rights might have also been violated, we do not need to address the issue separately because the due process violation would be based on the violation of Ertman's implied consent rights. Since we hold that there was no violation of the implied consent law, there is no resulting due process violation.
[2] The decision in State v. Drexler, 199 Wis.2d 128, 544 N.W.2d 903 (Ct. App. 1995), was issued two months after the trial court amended its suppression order.