COURT OF APPEALS DECISION DATED AND FILED October 1, 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. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT II |
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City of
Plaintiff-Respondent, v. James G. Liebhauser,
Defendant-Appellant. |
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APPEAL
from a judgment of the circuit court for
¶1 SNYDER, J.[1] James G. Liebhauser appeals from a judgment that followed his no contest plea to driving with a prohibited blood alcohol content, first offense. Liebhauser contends that the circuit court erred when it denied his motion to suppress evidence obtained following his arrest. He argues that the forced blood draw was performed in an unreasonable manner, that he reasonably objected to the blood draw, and that the gravity of the offense did not justify the forced blood draw. We affirm the judgment.
BACKGROUND
¶2 On April 26, 2007, Menasha Police Officer Zachary Albrecht
observed a vehicle traveling west on
¶3 Albrecht approached the driver and asked for identification. The driver attempted to pull his license from his wallet but eventually handed the entire wallet to Albrecht to get the license out. Albrecht identified the driver as Liebhauser. Albrecht asked Liebhauser why he had crossed the center line and almost hit the squad car. Liebhauser stated he did not recall that happening. Albrecht noticed that Liebhauser was not wearing a seatbelt and that there was a strong odor of intoxicants in the vehicle. Liebhauser admitted he had consumed “a few beers.”
¶4 Albrecht then asked Liebhauser to exit his vehicle, which Liebhauser did with some difficulty. Liebhauser stumbled and used the vehicle for balance when walking. Albrecht decided to have Liebhauser perform field sobriety tests. Another officer arrived to assist. Albrecht first asked Liebhauser to perform the horizontal gaze nystagmus test, which provided six out of six clues for intoxication. Next, Albrecht asked Liebhauser to perform the walk-and-turn test. Liebhauser declined, stating that he could not perform the test because of his cerebral palsy. Albrecht then concluded the test. Because of Liebhauser’s physical disability, Albrecht decided to use the alphabet test next. Liebhauser was unable to recite the alphabet as directed. Finally, Albrecht asked Liebhauser to submit to a PBT. After trying three times for a successful test, Albrecht determined that Liebhauser would not blow into the test device.
¶5 Albrecht determined that, based upon his observations of
Liebhauser’s driving and physical unsteadiness along with the field sobriety
test result, there was probable cause to arrest Liebhauser for operating while
intoxicated. He put handcuffs on
Liebhauser and escorted him to the squad car.
Liebhauser became very uncooperative.
He would not pull his feet into the squad car and when officers
attempted to assist him, he would not budge.
Albrecht offered to transfer Liebhauser to a different police vehicle,
an SUV, if that would help, but Liebhauser refused to leave the back of
Albrecht’s squad. An ambulance was
called and James was transported to
¶6 Liebhauser was disorderly at the hospital, he kicked at one of the emergency room doctors and continued to resist. During a brief calm period, Albrecht read the Informing the Accused form to Liebhauser. Liebhauser stated he would not submit to an evidentiary chemical test. Albrecht marked the form as a refusal and a blood draw was then performed by a laboratory technician at the hospital. Liebhauser was cited for operating while intoxicated and for operating with a prohibited alcohol concentration, both as first offenses.
¶7 Liebhauser filed a motion to suppress evidence derived from the evidentiary chemical blood test. The circuit court denied the motion and Liebhauser pled no contest to the PAC charge, the OWI and refusal charges were dismissed. Liebhauser now appeals, arguing that the court’s denial of his motion was error.
DISCUSSION
¶8 Liebhauser presents three issues for our review: First he argues that he has not waived his right to appeal despite his no contest plea, next he asks whether the evidentiary blood draw violated his statutory and constitutional right to be free from unreasonable search and seizure, and finally he contends that the gravity of his offense was insufficient to support the intrusion of the forcible blood draw.
¶9 We begin with the issue of waiver. The City argues that Liebhauser waived his
right to appeal because his conviction rests on a stipulated plea that was made
knowingly and voluntarily. Liebhauser
contends that County of Ozaukee v. Quelle, 198
¶10 The City directs us to County of Racine v. Smith, 122
¶11 We agree with the City 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. Liebhauser
is correct when he 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 civil
charge of OWI after the circuit court denied her motion to suppress.
¶14 Liebhauser also argues that he has presented an issue that
requires clarification by the court of appeals. 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. 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. 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 Liebhauser raised additional issues on appeal. Because we conclude that he has waived nonjurisdictional defects and defenses, we do not reach the merits of his 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.