|
COURT OF
APPEALS DECISION DATED AND
RELEASED February
27, 1997 |
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. 96-2401
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
RANDALL S. RUETH,
Defendant-Appellant.
Appeal
from an order of the circuit court for Jefferson County: WILLIAM F. HUE, Judge. Affirmed.
ROGGENSACK,
J.[1] Randall S. Rueth appeals from an order
revoking his driver’s license for one year.
He seeks review of the circuit court’s determination that his refusal to
submit to a chemical blood test after his arrest for operating a motor vehicle
while intoxicated (OMVWI) was unlawful.
Rueth claims the court erred when:
(1) it concluded probable cause for the request to submit to chemical
testing existed, without requiring testimony from the officer who had
administered Rueth’s field sobriety tests; (2) it determined the information
provided to Rueth before his refusal was timely, despite its being given in the
back of the squad car without any specimen-taking capabilities at hand; and (3)
it held that Rueth’s refusal was informed, despite an ambiguous sentence in the
Informing the Accused form and an inaccurate statement of the consequences of
refusal made by the requesting officer.
For the reasons discussed below, none of Rueth’s arguments are
persuasive. Accordingly, the order of
the trial court is affirmed.
BACKGROUND
On April 14, 1996, at about 5:23 p.m. Officer
Brandon J. Beecroft observed Rueth’s van traveling 40 to 45 m.p.h. in a 25
m.p.h. zone and then driving past a yellow and red striped barricade which
prohibited through traffic. Beecroft
activated his red and blue lights and followed Rueth’s van as it drove onto a
lawn to avoid a second barricade.
Eventually Rueth pulled over.
However, as soon as Beecroft began to exit his squad car, Rueth took
off. Beecroft pursued and pulled the
van over once again, only to have it take off a second time when he opened his
squad car door. After Beecroft pulled
Rueth’s van over for a third time, Rueth got out of his van, and refused to
obey Beecroft’s order to get back into it.
Rueth asked Beecroft to give him a break because he had formerly served
as a military police officer in the marines.
He became very agitated.
Officer
Durkee responded to Beecroft’s call for backup. Durkee questioned Rueth, who admitted that he had been drinking
at a bar. During the field sobriety
test given by Durkee, Rueth failed to properly touch his heel to his toe. Upon observing this, Beecroft asked Rueth to
take a preliminary breath test. After
the PBT registered .18, Beecroft informed Rueth that he was under arrest for
OMVWI, pursuant to § 346.63(1)(a), Stats. Beecroft placed Rueth in the back of his
squad car, where he read him the Informing the Accused form, and asked him to
submit to an evidentiary blood test.
Rueth initially refused, but later changed his mind, after Beecroft told
him that he was going to write out an Intent to Revoke form. En route to the hospital where the blood
sample was to be taken, Rueth changed his mind again, and refused to give
blood. The last statement the officer
made to Rueth on the issue was that he was going to administratively “suspend”
Rueth’s license if he refused the blood test.
Beecroft
issued Rueth a notice of intent to revoke his license, pursuant to
§ 343.305(9), Stats. Rueth requested a refusal hearing, which was
held on August 13, 1996. Beecroft was
the only witness to testify. He
admitted that he had not administered the field sobriety tests himself, but
said he observed the heel-to-toe test from his squad car as he ran Rueth’s
information into County dispatch. Rueth
challenged the State’s probable cause and the sufficiency of the information he
had been provided relative to his refusal.
The trial court determined that Rueth had unlawfully refused to submit
to the blood test.
DISCUSSION
Standard of Review.
The
interpretation of Wisconsin’s implied consent law and its application to
undisputed facts present questions of law which this court reviews
independently. State v. Sutton,
177 Wis.2d 709, 713, 503 N.W.2d 326, 328 (Ct. App. 1993).
Implied Consent Law.
When
an officer arrests a person for OMVWI, the officer may ask the person to
provide a blood, urine or breath sample.
Section 343.305(3)(a), Stats. The officer must orally inform the person of
his or her rights under Wisconsin’s implied consent law at the time a chemical
test specimen is requested. Section
343.305(4). If the person then refuses
to provide the requested sample, the officer shall take the person’s driving
license and issue a notice of intent to revoke the person’s driving
privileges. Section 343.305(9)(a).
The
person may request a refusal hearing to determine the validity of the
revocation. Section 343.305(9)(a)4., Stats.
The only issues at a refusal hearing are: (1) whether the requesting officer had probable cause to believe
that the person was driving while under the influence of an intoxicant; (2)
whether the officer complied with the informational provisions of § 343.305(4);
(3) whether the person refused to permit a blood, breath or urine test; and (4)
whether the refusal to submit to the test was due to a physical inability
unrelated to the person’s use of alcohol.
Section 343.305(9)(a)5.; State v. Wille, 185 Wis.2d 673,
679, 518 N.W.2d 325, 327 (Ct. App. 1994).
Rueth raises the first three of these issues on appeal.
Probable Cause.
In
regard to the determination of probable cause, the State carries a
substantially lower burden of persuasion at a refusal hearing than at a
suppression hearing. Wille,
185 Wis.2d at 681, 518 N.W.2d at 328. At the refusal hearing, “the state must only present evidence
sufficient to establish an officer’s probable cause to believe the person was
driving or operating a motor vehicle while under the influence of an
intoxicant.” State v. Nordness,
128 Wis.2d 15, 35, 381 N.W.2d 300, 308 (1986).[2] The court does not weigh the evidence for
and against probable cause or determine the credibility of the witnesses. Id. at 36, 381 N.W.2d at
308. Indeed, the court does not even
need to believe the officer’s account.
“It need only be persuaded that the State’s account is plausible.” Wille, 185 Wis.2d at 681, 679 N.W.2d at 328.
The
arresting officer in this case knew that Rueth had been driving 20 miles in
excess of the posted speed limit, had disregarded traffic signs and the
flashing emergency lights of a pursuing squad car, and had disobeyed the
officer’s command to remain in his van.
He knew that Rueth had admitted drinking, was very agitated, had
difficulty with at least one field sobriety test, and had registered .18 on his
PBT. In addition, Rueth’s request to be
given a break could be interpreted as consciousness of guilt. These facts could reasonably lead Beecroft
to believe that Rueth had been driving while intoxicated. Beecroft’s account was plausible regardless
of whether he administered the field sobriety test himself. No additional testimony was required to
establish probable cause to request a blood test.[3]
Informing the Accused and Refusal.
Refusal to submit to
blood testing cannot result in revocation of operating privileges unless the
person has been adequately informed of his rights under the law. See Village of Oregon v. Bryant,
188 Wis.2d 680, 693, 524 N.W.2d 635, 640 (1994). In order to successfully challenge the sufficiency of the warning
given by a law enforcement officer under the implied consent law, an accused driver
must show that: (1) the requesting
officer either failed to meet or exceeded his duty to inform the accused under
§ 343.305(4), Stats.; (2)
the lack or oversupply of information was misleading; and (3) the driver’s
ability to make the choice about whether to submit to chemical testing was
affected. County of Ozaukee v.
Quelle, 198 Wis.2d 269, 280, 542 N.W.2d 196, 200 (Ct. App. 1995).
Rueth
first contends that his refusal to provide a blood sample was not an adequately
informed one under § 343.305(4), Stats.,
because the request was made in the back of a squad car rather than in a place
where a specimen could actually be obtained.
In effect, Rueth would have this court read the statute to require that
an officer read a suspect the Informing the Accused form “at the time a
chemical test specimen is requested and ready to be obtained.” However, the language of the statute clearly
and unambiguously refers only to the time at which the request for a specimen
is made. The plain meaning of a statute
must be followed. Sutton,
177 Wis.2d at 716, 503 N.W.2d at 329.
Furthermore, this court will not construe a statute in a manner that
would lead to absurd results. State
v. Disch, 129 Wis.2d 225, 233, 385 N.W.2d 140, 143 (1986). It would be a waste of time to require an
arresting officer to take a suspect to a hospital or clinic, for instance,
without first ascertaining whether he intends to submit to testing. Therefore, this court declines to construe
the time element of subsec. (4) as narrowly as Rueth urges. We conclude that the phrase “at the time a
chemical test specimen is requested,” as used in § 343.305(4), refers to
any time after arrest and before a sample is taken when an officer asks a
suspect whether he will submit to chemical testing.
Rueth
next claims that the information provided to him in the Informing the Accused
form misrepresented the conditions under which an accused’s vehicle would be
subject to forfeiture. Paragraph five
of the Department of Transportation form states:
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 10 year period and after
January 1, 1988, 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.
This is an accurate condensation of the statute, when
read as requiring either a failed chemical test plus two prior convictions, or
a refusal plus two prior convictions, before a vehicle could be seized and
forfeited. However, the statement could
also be read in the disjunctive to authorize a forfeiture based on a prohibited
alcohol concentration without the requirement of two prior convictions. However, even if the form could be
considered misleading in this regard, Rueth has failed to show that his ability
to make an informed choice was impacted.
He presented no evidence that he actually believed forfeiture was a
possibility based solely on the results of a chemical test.
Rueth
mistakenly relies on our decision in County of Ozaukee v. Quelle
for the proposition that his subjective understanding of the warning he was
given is irrelevant. In Quelle,
this court held that a driver’s subjective confusion over the difference
between a preliminary breath test and an Intoxilyzer was not enough to
challenge the sufficiency of the information she was given under the
statute. Quelle, 198
Wis.2d at 280, 542 N.W.2d at 200.
Because Quelle failed to satisfy the second prong of the informed
refusal test dealing with objectively misleading information, the court never
reached the question of what effect the information she was given had on her
ability to make an informed choice.
Nothing in that case suggests that a subjective analysis under the third
prong would be inappropriate once the second prong is satisfied. Indeed, such an analysis is required.
“[T]he
implied consent warnings are designed to inform drivers of the rights and
penalties applicable to them.” Quelle, 198 Wis.2d at 279, 542
N.W.2d at 199. Forfeiture penalties
were not applicable to Rueth because he did not have two prior drunk driving
convictions. The Informing the Accused
form which was read to Rueth was capable of accurately advising him of that
fact. In the absence of any evidence
that the possible ambiguity of the form led Rueth to refuse to take the blood
test, this court cannot conclude his refusal was uninformed.
Rueth
also contends that the officer’s final statement that he would
“administratively suspend” rather than “revoke” his license rendered Rueth’s
refusal uninformed. It is true that the
officer did not use the same term as is found in the statutes. However, the accused is obligated “to take
the test promptly or to refuse it promptly.
If he refuses, the consequences flow from the implied consent
statute.” State v. Neitzel,
95 Wis.2d 191, 205, 289 N.W.2d 828, 835 (1980). Rueth’s initial refusal to submit to blood testing after having
been read the Informing the Accused form subjected him to a license
revocation. Rueth does not explain how
or why this post-refusal statement by the officer is relevant here. Therefore, we conclude that the record does
not support Rueth’s assertion that his refusal was uninformed.
CONCLUSION
The undisputed testimony
of the arresting officer was sufficient to establish probable cause to arrest
Rueth and to request him to submit to a chemical blood test. The request was properly made after the
defendant’s arrest and after he had been informed of his rights under
Wisconsin’s implied consent law, notwithstanding the fact that the request came
in the back of the squad car. The
refusal was informed despite the wording of the Informing the Accused form and
the officer’s use of the word “suspend” rather than “revoke.”
By
the Court.—Order affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4., Stats.
[2] The
supreme court refers to the hearing provided for in § 343.305(9)(a), Stats., as a “revocation hearing,”
rather than as a “refusal hearing.”
[3] Rueth
also claims in passing that he was deprived of the opportunity to contest
probable cause by the State’s failure to place Officer Durkee on the
stand. However, there is nothing in the
record to indicate that the defense was precluded from calling Durkee himself,
if it believed his testimony would have been favorable.