COURT OF APPEALS DECISION DATED AND RELEASED February 4, 1997 |
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. 96-2032
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JEANNETTE
PERKINS-HUNT,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Milwaukee County:
DENNIS P. MORONEY, Judge. Affirmed.
FINE,
J. Jeannette Perkins-Hunt appeals the trial court's revocation
of her operating privilege, after determining that Perkins-Hunt improperly
refused to submit to a test of the alcohol content of her blood, as required by
§ 343.305, Stats., Wisconsin's
implied-consent law. Perkins-Hunt
raises three issues for our review.
First, she claims that the police did not have probable cause to stop
and arrest her for drunk driving.
Second, she contends that the police did not adequately explain to her
her obligations under § 343.305.
Third, she argues that she did not refuse to submit to testing under §
343.305. We affirm.
When a driver is alleged
to have improperly refused to submit to a chemical test of his or her blood
under § 343.305, Stats., the
trial court must resolve three issues:
(1) whether “the officer [stopping the driver] had probable cause to
believe the person was driving or operating a motor vehicle while under the
influence of alcohol,” and “whether the person was lawfully placed under
arrest” for drunk driving, § 343.305(9)(a)5.a; (2) whether the officer complied
with § 343.305(4), which requires that the officer inform the driver of
the driver's rights and responsibilities under the implied-consent law, and the
consequences of a failure to consent to a test of the driver's blood-alcohol
content, § 343.305(9)(a)5.b; and (3) whether the driver has “refused to permit
the test,” § 343.305(9)(a)5.c. The
trial court resolved these issues against Perkins-Hunt.
A trial court's findings
of fact will not be set aside on appeal unless they are “clearly
erroneous.” Rule 805.17(2), Stats. Moreover, absent specific detailed findings,
we will affirm if the facts necessary to a trial court's determination are
supported by the evidence. Marshall
v. Lonberger, 459 U.S. 422, 433 (1983) (Although trial court failed to
make express findings on credibility, failure to grant relief reflects implicit
adverse finding.); Schneller v. St. Mary's Hosp. Medical Ctr.,
162 Wis.2d 296, 311, 470 N.W.2d 873, 879 (1991) (trial court's findings may be
implicit from its ruling).
In this case, a
Milwaukee police officer testified that she saw Perkins-Hunt leave a Milwaukee
tavern early in the morning and stagger and have difficulty getting into her
car that was parked nearby.
Perkins-Hunt drove away, and the officer followed. The officer testified that she saw
Perkins-Hunt swerve “several times across the center line” and “swerve
partially halfway through the right-hand lane--or parking lane.” The officer told the trial court that she
stopped Perkins-Hunt when Perkins-Hunt almost caused an accident at a stop
sign. According to the officer, she
“detected a strong odor of alcoholic beverage emanating from”
Perkins-Hunt. Additionally, according
to the officer, Perkins-Hunt's speech was “slightly slurred” and her eyes were
“bloodshot.” Further, Perkins-Hunt was,
according to the officer, combative and uncooperative.
Perkins-Hunt argues that
the officer's testimony was not believable because there were medians along
part of the roadway where the officer testified that she saw Perkins-Hunt cross
the “center line,” and because there were other inconsistencies in the officer's
testimony. Perkins-Hunt also argues
that the officer's testimony was not plausible because the officer did not stop
Perkins-Hunt sooner—that is, before the stop-sign incident.
The trial court
recognized inconsistencies in the officer's testimony, but found nevertheless
that there was “some kind of deviation” that justified the stop. This finding
is supported by the evidence and is not, therefore, “clearly erroneous.” Moreover, the State at a refusal hearing under
§ 343.305(9), Stats., need only
show that a stop and arrest of a driver suspected of driving while under the
influence of an intoxicant is supported by “probable cause”—that is, the “State
need only show that the officer's account is plausible, and the [trial] court
will not weigh the evidence for and against probable cause or determine the
credibility of the witnesses.” State
v. Wille, 185 Wis.2d 673, 681, 518 N.W.2d 325, 328 (Ct. App.
1994). The evidence before the trial
court amply supports both Perkins-Hunt's stop and arrest for drunk driving. See State v. Babbitt,
188 Wis.2d 349, 357, 525 N.W.2d 102, 104 (Ct. App. 1994) (listing examples that
support probable cause to arrest for drunk driving). The trial court did not err in determining that §
343.305(9)(a)5.a was satisfied.
Perkins-Hunt's
contention that the police failed to comply with § 343.305(4), Stats., centers around her assertion
that she did not understand what the officers told her.[1] All that is required, however, is that the
officer provide the driver with the “specific information” set out by the
section; the officer need not “explain” the meaning of the words or concepts
used, and a driver's alleged lack of comprehension does not negate an officer's
compliance with § 343.305(4). County
of Ozaukee v. Quelle, 198 Wis.2d 269, 280–281, 542 N.W.2d 196, 200 (Ct.
App. 1995). Perkins-Hunt does not
dispute on appeal that she was read an informing-the-accused form or that the
form as read complied with § 343.305(4).
Under Quelle, that ends our inquiry. Perkins-Hunt's second claim of trial court
error is without merit.[2]
Perkins-Hunt's final
claim on this appeal, namely that she did not refuse to take a chemical test of
her blood-alcohol, is based on her contention that she did not understand what
the officer read to her on the informing-the-accused form and thus that she did
not comprehend that the officer was asking her to take such a test rather than,
as she puts it in her appellate brief, “further `field sobriety tests,' similar
to the ones she had already taken at the station.” As already noted, however, a driver's subjective understanding of
the information encompassed by § 343.305(4), Stats.,
is not material to a determination of whether that driver submitted or refused
to submit to tests required by the informed-consent law. Perkins-Hunt's contention that she did not
refuse to consent is thus without merit.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[1] Section 343.305(4), Stats., provides:
(4) Information. At the
time a chemical test specimen is requested under sub. (3) (a) or (am), the
person shall be orally informed by the law enforcement officer that:
(a)
He or she is deemed to have consented to tests under sub. (2);
(b)
If testing is refused, a motor vehicle owned by the person may be immobilized,
seized and forfeited or equipped with an ignition interlock device if the
person has 2 or more prior suspensions, revocations or convictions within a 10‑year
period that would be counted under s. 343.307 (1) and the person's operating
privilege will be revoked under this section;
(c)
If one or more tests are taken and the results of any test indicate that the
person has a prohibited alcohol concentration and was driving or operating a
motor vehicle, the person will be subject to penalties, the person's operating
privilege will be suspended under this section and a motor vehicle owned by the
person may be immobilized, seized and forfeited or equipped with an ignition
interlock device if the person has 2 or more prior convictions, suspensions or
revocations within a 10‑year period that would be counted under s.
343.307 (1); and
(d) After submitting to testing, the person tested has the right to have an additional test made by a person of his or her own choosing.