COURT OF APPEALS DECISION DATED AND FILED September 17, 2008 David R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
2007TR10476 |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT II |
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Village of Elm Grove,
Plaintiff-Respondent, v. Judith M. Paulick,
Defendant-Appellant. |
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APPEAL
from a judgment of the circuit court for
¶1 SNYDER, J.[1] Judith
M. Paulick appeals from a judgment that followed her no contest plea to driving
with a prohibited blood alcohol content, first offense. Paulick contends that the circuit court erred
when it denied her motion to suppress evidence obtained during the investigatory
traffic stop. She argues that the stop
was not supported by reasonable suspicion and that her arrest was not supported
by probable cause. She further contends
that the circuit court erred when it refused to allow the arresting officer’s
administrative hearing testimony into evidence. We affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
¶2 On September 15, 2007,
¶3 Nobile asked Paulick to perform field sobriety tests, including the horizontal gaze nystagmus test, the walk-and-turn and one-leg stand tests, and the alphabet and counting backwards tests. Nobile observed clues for impairment in each test. He then performed a preliminary breath test. Nobile concluded that Paulick could not operate a motor vehicle safely and he placed her under arrest for operating while intoxicated. A subsequent evidentiary chemical test showed Paulick’s blood alcohol concentration to be .18, well over the limit for a first offense. See Wis. Stat. § 340.01(46m)(a).
¶4 Paulick demanded a jury trial and filed a motion to suppress. The court held a motion hearing on February 14, 2008. Paulick argued there, as she does here, that Nobile had no reason to initiate traffic stop and, further, that he had no probable cause for arrest. At the hearing, Paulick attempted to introduce testimony Nobile gave at a previous administrative hearing, but the court refused to allow the testimony.
¶5 Paulick’s passenger on the night of the arrest, Rinzel, testified
at the hearing. Rinzel indicated that at
the direction of defense counsel he took three photographs of the vehicle that
Paulick had been driving that night. The
first photograph was taken the day before the motion hearing at approximately
7:30 a.m. at a distance of thirty feet.
The second photograph was taken at approximately 9:15 p.m. at a distance
of two hundred feet. In the second
photograph, the inside tail light bulb was removed to “simulate[] the condition
on the night in question.” The third
photograph was taken on February 12 at about 9:15 p.m. and at a distance of two
hundred feet, but in this picture the tail light bulb had not been
removed. Rinzel explained that on this
particular vehicle, there were two red tail lights on the rear of the car along
with one tail light on the extreme right side and one on the extreme left side
at the rear of the car. On the night of
Paulick’s arrest, both right side tail lights were working, the outside left
tail light was working, but the inside left tail light was not.
¶6 At the conclusion of the hearing, the court denied Paulick’s motion to suppress. Specifically, the court held that the defective tail light provided Nobile with reasonable suspicion of an equipment violation and supported the investigative traffic stop. The court further determined that Paulick’s slurred speech, bloodshot eyes, admission that she had been drinking, performance on field sobriety tests, and her preliminary breath test results together supported her arrest for OWI.
¶7 Paulick then pled no contest to the charge of operating with a prohibited alcohol concentration and the OWI charge was dismissed. She now appeals, seeking reversal of the conviction and remand to the circuit court with instructions that the motion to suppress be granted.[2]
DISCUSSION
¶8 Paulick presents six issues on appeal, which can be grouped into three topic areas: (1) her right to appeal despite her no contest plea, (2) whether Nobile violated her constitutional right to be free from unreasonable seizures when he initiated the traffic stop, and (3) the court’s decision to preclude the use of Nobile’s administrative hearing testimony.[3]
¶9 We begin with the issue of waiver. The Village argues that Paulick waived her
right to appeal because her no contest plea was made knowingly and voluntarily. Paulick contends that County of Ozaukee v. Quelle,
198
¶10 The Village directs us to County of Racine v. Smith, 122
¶11 We agree with the Village that the waiver rule applies. It is a general principle of law that a “guilty
plea, made knowingly and voluntarily, waives all nonjurisdictional defects and
defenses, including alleged violations of constitutional rights prior to the
plea.” State v. Aniton, 183
Wis. Stat. § 971.31(10). That exception, however, does not apply to
civil forfeiture matters. Smith,
122
¶12 Waiver is not a jurisdictional bar to an appeal, but rather a
principle of judicial administration. Paulick
is correct when she asserts that we may, in our discretion, decline to apply
the waiver rule. In first offense OWI
matters, which are civil in nature, this court may consider four factors: (1) the administrative efficiencies resulting
from the plea, (2) whether an adequate record has been developed, (3) whether
the appeal appears motivated by the severity of the sentence, and (4) the
nature of the potential issue. See Quelle, 198
¶13 We recognize that, particularly with regard to the first three
factors, several facts underlying this case align with those in Quelle. For example, Quelle pled no contest to a charge
of OWI, first offense, after the circuit court denied her motion to
suppress.
¶14 In her appeal, however, Quelle asserted that the results of her
breath alcohol test should have been suppressed because she was subjectively
confused by the officer’s conduct. See id. at 273. One of the primary reasons that we chose not
to apply the waiver rule in Quelle, as reflected in the fourth
factor, was the nature of the issue presented.
At that time there were no published cases addressing the “subjective
confusion” concept acknowledged in Village of Oregon v. Bryant, 188
Wis. 2d 680, 524 N.W.2d 635 (1994). The Quelle
opinion offered an opportunity to address the viability of the “subjective
confusion” defense arguably sanctioned by Bryant. See
Quelle,
198
¶15 Our legislature carved a very specific and very limited
exception to the waiver rule in Wis.
Stat. § 971.31(10). We
presume the legislature chooses its words carefully and precisely to express its
meaning. Ball v. District No. 4, Area Bd.,
117
We feel compelled to note, however, that the burgeoning civil forfeiture caseloads generally, and operating under the influence cases specifically, warrant consideration by the bench, bar, and legislature of an appropriate statute akin to [Wis. Stat.] § 971.31(10) …. [W]e should investigate appropriate methods by which to accord standing to seek review of fundamental and important evidentiary questions while avoiding an unnecessary and protracted trial.
Smith, 122
¶16 Paulick raised additional issues on appeal. Because we conclude that she has waived nonjurisdictional defects and defenses, we do not reach the merits of her arguments.
CONCLUSION
¶17 The court of appeals is a fast-paced, high-volume, error-correcting
court, State ex rel. Swan v. Elections Board, 133
By the Court.—Judgment affirmed.
This
opinion will not be published. See Wis.
Stat. Rule
809. 23(1)(b)4.
[1] This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2)(g) (2005-06). All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[2] In her appellate brief, Paulick fails to present a statement of the facts that complies with Wis. Stat. Rule 809.19(1)(d) and (e). Rather, she editorializes and relies on a map never admitted into evidence in this case. She also attacks the credibility of the arresting officer, calling him evasive and cavalier. We caution Paulick that editorial comment and argument interspersed in what Rule 809.19(1)(d) and (e) requires, namely an objective and completely accurate recitation of the facts, is inappropriate. See Arents v. ANR Pipeline Co., 2005 WI App 61, ¶5 n.2, 281 Wis. 2d 173, 696 N.W.2d 194.
[3] Paulick also argues that the circuit court applied the wrong burden of proof for an OWI conviction. She cites to the motion hearing transcript where the court stated that the Village’s burden was “preponderance of the evidence.” Paulick mischaracterizes the court’s holding. The court was addressing the motion to suppress and the totality of the circumstances supporting Nobile’s reasonable suspicion for the traffic stop. It was not stating the burden of proof for an OWI charge.