COURT OF APPEALS DECISION DATED AND RELEASED |
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April 9, 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. 96-3152-CR |
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STATE OF WISCONSIN |
IN COURT OF APPEALS DISTRICT II |
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STATE OF WISCONSIN, Plaintiff-Respondent, v. KURT GILKES, Defendant-Appellant. |
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APPEAL from a judgment of the circuit court for Waukesha County: JOSEPH E. WIMMER, Judge. Affirmed.
BROWN,
J. Kurt Gilkes pled no contest to operating a motor
vehicle with a prohibited alcohol concentration. On appeal, he alleges that the complaint was insufficient
because it did not substantiate that he had a prohibited alcohol concentration.
Gilkes also contends that the
arresting officer was not presented with enough facts to form a reasonable
suspicion justifying the traffic stop.
We reject Gilkes’s attack on the complaint
for two reasons. First, we determine
that the complaint contained the necessary facts. Second, and alternatively, Gilkes has not demonstrated how he was
prejudiced by this alleged defect, and therefore we apply the rule that a court
may not set aside a conviction on grounds of a defect in the charging document unless the defect results
in prejudice. See Schleiss
v. State, 71 Wis.2d 733, 739, 239 N.W.2d 68, 73 (1976). We also reject Gilkes’s claim that the
traffic officer was not presented with enough facts to form a reasonable
suspicion to stop Gilkes’s vehicle. We
affirm.
In January 1995, the State charged Gilkes
with operating a motor vehicle while under the influence of an intoxicant and
operating a motor vehicle with a prohibited alcohol concentration. After the trial court rejected his motions
to dismiss the complaint and to suppress his blood test results because of the
allegedly unlawful stop, Gilkes entered a no contest plea to the OMVWPAC
charge. Gilkes has appealed alleging
that the trial court erred in its conclusions. We will now address these issues directly, withholding our
recital of the facts until necessary.
Gilkes first argues that the complaint was
defective because it does not contain a “factual showing” that he had a
“prohibited alcohol concentration.”
While the complaint states that a blood test “indicated a .154 per cent
of alcohol by weight in the defendant’s blood,” he argues that complaint does
not reveal the critical factor of when this blood sample was taken. Gilkes explains that the time when
the sample was taken is needed to establish whether an OWI-related defendant
was actually intoxicated when he or she was behind the wheel. Gilkes concludes that this time requirement
is a significant element in a complaint charging an intoxication-related
offense because it answers the question of why this person is being
charged. See State v. O'Connell, 179 Wis.2d 598, 604, 508 N.W.2d 23, 25 (Ct. App. 1993).
The standards we apply
to test the adequacy of a criminal complaint are well settled. A complaint is sufficient if it alleges
facts that could lead a reasonable person to conclude that the person probably
committed a crime. See id. The issue of whether a complaint meets a
required standard is a matter we review independently of the trial court. See id.
We conclude that this
complaint was sufficient. Although the
complaint does not state when the blood test was given, it contains a narrative
of events which would enable a reasonable person to infer that the blood test
was given soon enough after Gilkes was stopped such that Gilkes probably had a
prohibited alcohol concentration when he was driving. See § 885.235(1), Stats. (requiring
that a blood alcohol test be given within three hours of the stop).
The complaint explains that Gilkes was
stopped around 3:25 a.m. on State Highway 16 in the Town of Oconomowoc. Gilkes performed several field sobriety
tests, which he failed, and took a roadside breath test, which yielded a result
of 0.15%. Gilkes was then taken to
Oconomowoc Memorial Hospital for the blood test.
While
the complaint does not describe how long the field testing took or whether the
officer stopped somewhere en route from the traffic stop to the hospital, the
general course of events outlined supports a conclusion that the hospital blood
test took place soon after the stop. As
important, the correlation between the roadside test result (0.15%) and the
hospital blood test (0.154%) suggests that not much time elapsed between the
stop and the test. If a lot of time had
passed between these two tests, we would expect a greater disparity in the
results as Gilkes metabolized more alcohol.
The complaint was not perfect, but it nonetheless provided enough
information so that Gilkes's doubts about the timeline of events could have
been resolved at trial.
We independently observe that there is
another reason why Gilkes’s attack on the complaint fails. It relates to § 971.26, Stats., which provides:
971.26 Formal defects. No indictment, information, complaint or warrant
shall be invalid, nor shall the trial, judgment or other proceedings be
affected by reason of any defect or imperfection in matters of form which do
not prejudice the defendant.
This statute prohibits a
court from reversing a conviction because of a “technical defect” in a charging
document. See Craig v. State, 55
Wis.2d 489, 493, 198 N.W.2d 609, 611 (1972).
Courts have applied the principle embodied in this statute to uphold
convictions even when the complaint failed to allege an element of the
crime. See Schleiss,
71 Wis.2d at 736-37, 239 N.W.2d at 71.
What Schleiss and the other
cases reveal is that a defendant challenging the sufficiency of a complaint
must not only show that there was a defect in the document, but the defendant
must also show how the defect affected his or her ability to defend the
charges. See id. at 739,
239 N.W.2d at 73. In this case, Gilkes
has not demonstrated how this allegedly defective complaint prejudiced his
ability to prepare a defense. His
failure to build that record provides an alternative basis for rejecting his
challenge to the complaint.
We next turn to Gilkes’s claim that the
officer did not have a reasonable suspicion to stop his vehicle. We will begin this analysis with the testimony
gathered during the evidentiary hearing on this issue. Only the arresting officer testified.
On the night of Gilkes’s arrest, the
arresting officer explained that he was stationed in the median monitoring
traffic along Highway 16. At around
3:25 a.m., he received a call from dispatch.
Someone had called the police on a cellular phone complaining of a
possible drunk driver. The caller was
in a Blazer and was following the suspected drunk driver who was in a red
car. The caller remained in contact with
dispatch and could see the arresting officer in the median.
The
officer saw a red Chevrolet pass by with a Blazer behind it. The officer then pulled out of the median
and began following the red Chevrolet; the officer later identified the driver
as Gilkes. As the officer followed
Gilkes, he saw that Gilkes was driving outside the fog line by roughly six
inches. Gilkes continued to drive in
this position for about two-tenths of a mile. The officer also testified that he and Gilkes were traveling
at a speed between thirty-five and forty miles per hour. We have done the calculations and observe
that the officer thus watched Gilkes drive this way for roughly twenty
seconds. The officer then stopped
Gilkes.
The trial court found that the caller’s tip
gave the officer a reason to suspect that there was a possible drunk driver
nearby. Moreover, the court found that
the officer was able to partially corroborate the tip when he saw Gilkes’s car
pass with the Blazer behind it.
Finally, the court noted that the officer saw Gilkes driving over the
fog line and “typically that is not where a vehicle belongs.” The trial court therefore determined that
the officer had sufficient reason to make the stop.
Gilkes complains that these events did not
provide the officer with enough specific and articulable facts to develop a
reasonable suspicion to stop his vehicle.
He contends that the officer did not talk with the caller and hence
could not have learned (and later corroborated) what information led the caller
to suspect that Gilkes was a drunk driver.
Moreover, Gilkes contends that crossing over the fog line is “not an
offense in Wisconsin.”
When
reviewing such challenges, we typically apply a bifurcated standard of
review. We defer to the trial court’s
findings of fact but then independently determine whether those facts satisfy
the reasonable suspicion standard. See
State v. Guzy, 139 Wis.2d 663, 671, 407 N.W.2d 548, 552
(1987). In this case, however, the
facts are not disputed and therefore only the legal question remains.
The
supreme court recently visited the legal issue of what quantum of facts can
support a reasonable suspicion to stop a suspected drunk driver. In State v. Waldner, 206
Wis.2d 51, 556 N.W.2d 681 (1996), the arresting officer also observed a driver
acting unusually, but not breaking any traffic laws. See id. at 52-53, 556 N.W.2d at 683. The officer in Waldner saw the
defendant make an unnecessary stop at an intersection and then pull into a
parking space, get out of the car and pour a mixture of “liquid and ice” onto
the roadway. See id.
at 53, 556 N.W.2d at 683.
The defendant in Waldner, similar
to Gilkes, argued that “lawful acts cannot form the basis for a reasonable
suspicion justifying a stop.” See
id. at 58, 556 N.W.2d at 685.
The supreme court, however, rejected this argument, noting that “police
officers are not required to rule out the possibility of innocent behavior
before initiating a brief stop.” Id.
at 59, 556 N.W.2d at 685. Rather, the
court emphasized that all the facts had to be considered together to measure if
they “coalesce” and add up to a reasonable suspicion. See id. at 61, 556 N.W.2d at 686.
Then turning to the specific facts of that
case, the court upheld the stop. It
characterized the defendant’s unnecessary stop and dumping of his cup as
“unusual” and “suspicious,” even though they were not “unlawful.” See id. at 60-61, 556
N.W.2d at 686.
We think that these characterizations from Waldner
apply to this case. First, the officer
was told that there might be a drunk driver nearby. He was then able to confirm some of this report when he saw the
caller and Gilkes drive in front of him.
Second, when the officer began to follow Gilkes, he saw him engage in
the “unusual” conduct of driving beyond the fog line. Third, Gilkes continued to drive this way for an extended
period. Thus, Gilkes’s failure to
correct this “unusual” behavior made it “suspicious.” We hold that these three factors combined to form a reasonable
suspicion. The stop was lawful.
By the Court.—Judgment affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.