COURT OF
APPEALS DECISION DATED AND
RELEASED February
6, 1997 |
NOTICE |
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adverse decision by the Court of Appeals.
See § 808.10 and Rule
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This opinion is subject to further editing. If published, the official version will appear in the bound
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No. 96-1938
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
COUNTY
OF ROCK,
Plaintiff-Respondent,
v.
CAROL
L. POFF-MILLS,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Rock County: JAMES WELKER, Judge. Affirmed.
DEININGER,
J.[1] Carol
Poff-Mills appeals a judgment convicting her of first-offense operating a motor
vehicle while intoxicated (OMVWI), in violation of 346.63(1)(a), Stats.
Poff-Mills raises two challenges.
First, she contends that the arresting officer's failure to properly
give the Informing the Accused warnings required by § 343.305, Stats., requires suppression or loss of
the automatic admissibility of her breath test results. Second, she argues that her prosecution for
violating § 346.63, subsequent to an administrative suspension of her
driving privileges under § 343.305(7) & (8), violates the Double
Jeopardy Clause. We reject both
arguments and affirm.
BACKGROUND
On
February 22, 1996, Rock County Deputy Sheriff Bambi Tomas stopped Poff-Mills
for speeding. After Poff-Mills failed
several field sobriety tests, Tomas arrested her for OMVWI and took her to the
police station for a breath test.
At
the station, Tomas read the "Informing the Accused" form containing
the warning required by § 343.305(4)(b), Stats.,
to Poff-Mills. The form read by Tomas
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, the legislature amended § 343.305(4)(b)
to require that prior convictions, suspensions or revocations for the prior ten
years be counted in determining potential sanctions for a new offense.
After
Tomas read her the form, Poff-Mills agreed to take a breath test, which
registered a prohibited alcohol concentration.
Tomas issued a citation for operating a motor vehicle with a prohibited
alcohol concentration.[2] The trial court denied Poff-Mills' motions
to dismiss and to suppress the breath test results. The parties entered into a stipulated trial, reserving the right
to appeal the denial of both motions, and the trial court found Poff-Mills
guilty of OMVWI. This is Poff-Mills'
first OMVWI conviction.
ANALYSIS
Informing the
Accused Form
Poff-Mills,
relying on State v. Zielke, 137 Wis.2d 39, 403 N.W.2d 427 (1987),
argues that by reading the outdated Informing the Accused form, Tomas failed to
comply with the provisions of the implied consent law and thus the breath tests
should have been suppressed, or in the alternative, that the test result should
not be accorded automatic admissibility under § 343.305(5)(d), Stats.
In Zielke, the Wisconsin Supreme Court stated:
This statutory scheme [§ 343.305, Stats.] provides incentive for the
police to comply with the procedures of the implied consent law. If the procedures set forth in
sec. 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.
Id. at 49, 403 N.W.2d at 431. We
reject Poff-Mills' argument.
In
County of Ozaukee v. Quelle, 198 Wis.2d 269, 542 N.W.2d 196 (Ct.
App. 1995), we held that a three-part standard applies to 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 the choice about chemical testing?
Id. at 280, 542 N.W.2d at 200.
The
provision of the implied consent law which was misstated by Tomas concerned
individuals with prior convictions for driving while intoxicated. However, this was Poff-Mills' first
offense. Poff-Mills failed to present
any evidence showing that the officer's misstatement prejudiced her decision
whether to submit to the breath test.
She thus failed to meet the third part of the Ozaukee
standard. We conclude that the trial
court properly denied the motion to suppress the breath test results.
We
also reject Poff-Mills' alternative argument that even if the trial court
properly denied suppression, the county should still have lost the automatic
admissibility of the test results under § 343.305(5)(d), Stats.[3] She contends that while prejudice is
required to mandate suppression as a remedy, all that need be shown to lose
automatic admissibility is that the officer did not strictly comply with the
implied consent law.
Poff-Mills
cites no authority for the proposition that strict compliance with the implied
consent law is required. We have held that "compliance with respect to the
substance essential to every reasonable objective of the [implied consent
law]" is sufficient to invoke the revocation for refusal provisions of the
implied consent law. State v.
Piskula, 168 Wis.2d 135, 141, 483 N.W.2d 250, 252 (Ct. App. 1992). If substantial compliance is sufficient for
revocation under the statute, we see no reason why substantial compliance
should not be sufficient to invoke the automatic admissibility provision of the
implied consent law.[4]
Double
Jeopardy
Poff-Mills
also argues that her criminal prosecution for violating § 346.63, Stats., subsequent to an administrative
suspension of her driving privileges under § 343.305(7) & (8), Stats., violates the Double Jeopardy
Clause.
The
Wisconsin Supreme Court's recent decision in State v. McMaster,
___ Wis.2d ___, 556 N.W.2d 673 (1996), controls this issue. Civil sanctions imposed in separate
proceedings from a criminal prosecution resulting from the same incident do not
violate the Double Jeopardy Clause where the civil sanctions are remedial,
rather than punitive, in nature. Id.
at ___, 556 N.W.2d at 676, 678. In McMaster,
the supreme court determined that the primary purpose of § 343.305, Stats., is to "protect the safety
of all who travel on Wisconsin's public streets and highways" and
concluded that the statute is remedial in nature. Id. at ___, 556 N.W.2d at 680. Accordingly, we hold that Poff-Mills'
prosecution subsequent to her administrative suspension did not violate the
Double Jeopardy Clause.
By
the Court.—Judgment affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.
[3] Section 343.305(5)(d), Stats., states:
At the trial of any civil or criminal action ... arising
out of the acts committed by a person alleged to have been ... operating a
motor vehicle while under the influence of an intoxicant ... the results of a
test administered in accordance with this section are admissible on the
issue of whether the person was under the influence of an intoxicant ....
(Emphasis added).
[4] Poff-Mills, citing State v. Geraldson,
176 Wis.2d 487, 500 N.W.2d 415 (Ct. App. 1993) and Village of Elm Grove
v. Landowski, 181 Wis.2d 137, 510 N.W.2d 752 (Ct. App. 1993), contends
we have held that the facts in Piskula are the only exception to
the requirements of the implied consent law.
In Piskula, we held that officers are not required to give
warnings relevant to commercial vehicle drivers to noncommercial drivers. State v. Piskula, 168 Wis.2d
135, 141, 483 N.W.2d 250, 252 (Ct. App. 1992).
In Landowski, we stated that Piskula was the
only exception "regarding the statute's commercial motor vehicle
provisions." Landowski,
181 Wis.2d at 142, 510 N.W.2d at 754.
In Geraldson, we stated that the "safest and surest
method is for law enforcement officers to advise OWI suspects of all warnings
... and to do so in the very words of the implied consent law." Geraldson, 176 Wis.2d at
496-97, 500 N.W.2d at 419. Neither case
requires, as Poff-Mills would have us conclude, strict compliance with the
statute as a prerequisite to automatic admissibility.