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COURT OF APPEALS DECISION DATED AND RELEASED December 19, 1996 |
NOTICE |
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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.
96-1881
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
MICHAEL C. CURRAN,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Dane County: Michael B. Torphy, Judge. Affirmed.
ROGGENSACK,
J. Michael C. Curran appeals his conviction based on the
denial of his motions to dismiss charges of operating a motor vehicle while
under the influence of an intoxicant (OMVWI) and with a prohibited alcohol
concentration (PAC) and to suppress the results of an intoxilyzer breath test
taken after his arrest. Curran contends
that (1) the initiation of a criminal OMVWI/PAC prosecution subsequent to the
imposition of an administrative suspension of his driving privileges violated
the Double Jeopardy Clause of the Fifth Amendment of the United States
Constitution; (2) the trial court based its probable cause finding on an
erroneous evaluation of the evidence; and (3) the police lacked probable cause
to arrest him because the field sobriety tests administered were not
sufficiently reliable. Curran's double
jeopardy argument is contrary to controlling precedent; evaluating the weight
to be given evidence is not the role of this court; and the probable cause
determination was proper under the totality of the circumstances. Accordingly, the decision of the trial court
is affirmed.[1]
BACKGROUND
On November 23, 1995, at
approximately 2:15 a.m., Deputy Catherina P. Nooyen of the Dane County
Sheriff's office observed Curran's car driving over the center line. When Nooyen pulled Curran over and spoke
with him, she observed that his eyes were bloodshot and glassy, that his speech
was slightly thick-tongued, and that he had an odor of intoxicants on his
breath. After Curran admitted that he
had consumed three or four beers that evening, Nooyen asked him to exit his
vehicle to perform field sobriety tests.
She administered the
walk-and-turn and one-leg stand tests, which are described in the National
Highway Traffic Safety Administration (NHTSA) manual, and also a finger
dexterity test which is not mentioned in that manual. Nooyen had been trained in the administration of all three tests
at the Department's Academy and at another three-day course, and had spent
eight weeks on patrol training with other officers as they conducted field
sobriety tests. Her training did not
include use of the standardized criteria described in the NHTSA manual. She was taught to look for difficulty
following directions and problems with balance and coordination, as indications
of a suspect's probable intoxication.
She had made 20 to 30 prior OMVWI arrests, the vast majority of which
resulted in intoxilyzer readings in excess of .10.
As she administered the
tests, Nooyen observed that Curran stepped out of line, couldn't remember which
way to turn, put his hands in his pockets and had to raise his arms to maintain
his balance. Additionally, he was
unable to touch his ring finger and pinkie fingers separately. Based on her experience, she believed
Curran's performance indicated that he was under the influence of
intoxicants. She arrested him for OMVWI,
and transported him for testing. When
Curran failed the test for a prohibited alcohol concentration with a reading of
.12,[2]
he was also cited for PAC and served with a Notice of Intent to Suspend his
operating privileges. His driver's
license was administratively suspended pursuant to § 343.305, Stats.
Subsequently, Curran was charged in a criminal complaint with violations
of §§ 346.63(1)(a) and (b), Stats. Curran filed a motion to dismiss on double
jeopardy grounds, and two motions to suppress evidence based on an unlawful
arrest and non-probative field sobriety tests, all of which the trial court
denied. Curran then agreed to a
stipulated trial to the court; the court adjudged him guilty on the OMVWI
count, and imposed an appropriate sentence.
Curran appeals, based on the double jeopardy and probable cause issues.
DISCUSSION
Scope
of Review.
Curran argues that the
administrative suspension of his operating privileges is a
"punishment," and therefore, prosecution for OMVWI/PAC constitutes
placing him twice in jeopardy of punishment for the same offense, in violation
of the Double Jeopardy Clause. His
contention requires analysis of the Fifth Amendment of the United States
Constitution[3], in light of
Wisconsin's Implied Consent Law, § 343.305, Stats. Because the
question involves the application of constitutional principles to undisputed
facts, we will review the trial court's decision de novo. State v. Pheil, 152 Wis.2d
523, 529, 449 N.W.2d 858, 861 (Ct. App. 1989).
It is not the role of
this court to evaluate the weight which is given evidence. Wisconsin Central Ltd. v. Public
Service Comm'n, 170 Wis.2d 558, 573, 490 N.W.2d 27, 31 (Ct. App.
1992). And, whether Curran's arrest was
based upon probable cause presents a mixed question of fact and law. The trial court's findings on disputed
factual issues will be upheld unless clearly erroneous. Section 805.17(2), Stats. Whether those
facts establish probable cause is a question of law to be reviewed de novo. State v. Babbitt, 188 Wis.2d
349, 356, 525 N.W.2d 102, 104 (Ct. App. 1994).
Double
Jeopardy.
The Fifth Amendment of
the United States Constitution provides that no person shall "be subject
for the same offense to be twice put in jeopardy of life or limb." The Double Jeopardy Clause includes three
distinct constitutional guarantees:
(1) protection against a second prosecution for the same offense
after an acquittal; (2) protection against a second prosecution for the
same offense after a conviction; and (3) protection against multiple
punishments for the same offense. State
v. Kurzawa, 180 Wis.2d 502, 515, 509 N.W.2d 712, 717, cert. denied,
114 S. Ct. 2712 (1994). Curran
argues that he was subjected to multiple punishments for the same offense,
contrary to the third prong of double jeopardy analysis.
A civil penalty may
constitute "punishment" when the penalty serves the goals of
punishment, such as retribution or deterrence.
United States v. Halper, 490 U.S. 435, 448 (1989). However, the supreme court has already
determined that § 343.305, Stats.,
is remedial in nature because it was enacted to keep drunken drivers off the
road. State v. McMaster,
No. 95-1159-CR, slip op. at 13-16 (Wis. Dec. 13, 1996). In other words, the primary purpose of the
implied consent law is to protect innocent drivers and pedestrians, rather than
to punish drunken drivers. Id. McMaster represents the
current State of Wisconsin law, and is binding precedent. Therefore, Curran's criminal prosecution for
operating a motor vehicle while intoxicated, after the administrative
suspension of his operating privileges, did not constitute multiple
punishments, and did not violate the Double Jeopardy Clause.
Probable Cause.
An officer has probable
cause to arrest when, at the time of the arrest, she "has knowledge of
facts and circumstances sufficient to warrant a person of reasonable prudence
to believe that the [person arrested] is committing or has committed an
offense." County of Dane v.
Sharpee, 154 Wis.2d 515, 518, 453 N.W.2d 508, (Ct. App. 1989). The
totality of the circumstances determines whether the officer's belief was
reasonable, taking into account inferences drawn in light of the officer's
knowledge, training, and prior personal and professional experience. See State v. DeSmidt,
155 Wis.2d 119, 134-35, 454 N.W.2d 780, 787 (1990). The Wisconsin Supreme Court has explained the place of field
sobriety tests under the totality of the circumstances test as follows:
Unexplained
erratic driving, the odor of alcohol, and the coincidental time of the incident
[with bar closing] form the basis for a reasonable suspicion but should not, in
the absence of a field sobriety test, constitute probable cause to arrest
someone for driving under the influence of intoxicants. A field sobriety test could be as simple as
a finger-to-nose or walk-a-straight-line test.
Without such a test, the police officers could not evaluate whether the
suspect's physical capacities were sufficiently impaired by the consumption of
intoxicants to warrant an arrest.
State
v. Swanson, 164 Wis.2d 437, 453-54 n.6, 475 N.W.2d 148, 155
(1991). However, this Swanson
footnote has not been interpreted to require a field sobriety test before
arrest in all cases. See State
v. Wille, 185 Wis.2d 673, 518 N.W.2d 325 (Ct. App. 1994) (holding
officer had probable cause to arrest suspect who hit rear end of car parked
along highway, smelled of intoxicants, and stated in his hospital room that he
had "to quit doing this").
Nor has this court required any particular tests be performed. See Sharpee, 154 Wis.2d
at 517, 453 N.W.2d at 509 (holding officer had probable cause to arrest suspect
who smelled of intoxicants, had bloodshot eyes and slurred speech, admitted to
consuming two or three drinks, could not accurately recite the alphabet, and
failed the horizontal gaze test).
Curran claims that the
finger dexterity test is not a scientifically valid field sobriety test, and
that the walk-and-turn and one-leg-stand tests were administered in a manner
which makes them invalid, according to the NHTSA manual.[4] Therefore, Curran contends that the trial
court lacked both a factual and legal basis for its probable cause conclusion.
Curran's argument
misconstrues the law in Wisconsin.
Although the NHTSA manual explains that a three test battery consisting
of the walk-and-turn test, the one-leg-stand test, and the horizontal-gaze test
is highly reliable in identifying persons whose blood alcohol concentration is
over .10, when the tests are administered in a standardized manner and assessed
on the basis of standardized criteria, this does not mean that other
combinations of sobriety tests not researched in the NHTSA study are not
reliable as well. Even Swanson,
upon which Curran relies for the proposition that an officer must perform field
sobriety tests before making an arrest for OMVWI, suggests that a single
finger-to-nose or walk-a-straight-line test may be sufficient. While the standardization of certain field
sobriety tests may add weight to their results, it does not render all other
tests non-probative. And, as we have
said, it is not the province of this court to determine what weight to give
evidence.
The totality of the
circumstances allowed Nooyen to reasonably believe that Curran had been driving
under the influence of intoxicants.
Nooyen observed Curran's erratic driving, his bloodshot eyes and slurred
speech. She smelled intoxicants on his
breath. Curran admitted to the officer
that he had been drinking, and demonstrated difficulty with balance and
coordination in a series of divided attention tasks. Moreover, Nooyen's experience allowed her to compare the results
of her previous OMVWI arrests with subsequent intoxilyzer tests. Probable cause existed.
CONCLUSION
The initiation of
criminal OMVWI/PAC prosecution subsequent to the imposition of an
administrative suspension of driving privileges does not violate the Double
Jeopardy Clause of the Fifth Amendment of the United States Constitution. In addition, the validity and probative
value of field sobriety tests fall within the totality of the circumstances to
be considered by a court when determining whether probable cause to arrest
existed. We conclude the trial court
properly determined that probable cause existed, and therefore, we affirm the
denial of Curran's motions to suppress evidence and to dismiss.
By the Court.—Judgment
affirmed.
Not recommended for
publication in the official reports. See
Rule 809.23(1)(b)4, Stats.
[3] Article I, sec. 8 of the Wisconsin Constitution also provides that "no person for the same offense may be put twice in jeopardy of punishment." However, Wisconsin interprets its double jeopardy clause in accordance with the rulings of the United States Supreme Court, State v. Kurzawa, 180 Wis.2d 502, 522, 509 N.W.2d, 712, 721, cert. denied 114 S. Ct. 2712 (1994), and because the defendant does not raise the Wisconsin constitutional issue, this analysis is limited to the federal clause.
[4] The trial court took judicial notice of the contents of Chapter A from the Student Study Guide for the Basic Training Program for Breath Examiner Specialist, and Chapter VIII of the NHTSA manual, subject to the understanding that "certainty must conform to the letter of the law but it may not have to conform to the letter of the manual." A judicially noticed fact is one not subject to reasonable dispute in that it is capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Section 902.01(2), Stats. Because the state did not object, we do not consider whether judicial notice of the manual was appropriate.