COURT OF APPEALS DECISION DATED AND RELEASED November 28, 1995 |
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. 95-1003
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
CITY OF APPLETON,
Plaintiff-Respondent,
v.
JAMES STEFANIAK,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Outagamie County:
HAROLD V. FROEHLICH, Judge. Affirmed.
MYSE, J. James Stefaniak, pro se,
appeals a judgment of conviction for operating a motor vehicle while
intoxicated contrary to Appleton, Wis.
Ordinance § 19-1(55), which is in conformity with § 346.63(1)(a), Stats.
Stefaniak contends that there was insufficient evidence to sustain his
conviction, that the officer lacked probable cause to arrest him, and that his
attorney was ineffective in his representation. Because this court finds no merit to Stefaniak's contentions, the
judgment of conviction is affirmed.
A city of Appleton
police officer observed Stefaniak enter the intersection on a red light,
causing other vehicles to beep their horns and attempt to avoid a
collision. The officer testified that
when he stopped Stefaniak, he noticed an odor of alcohol and slurred
speech. The officer further testified
that Stefaniak's eyes were dilated and that Stefaniak told him that he had a
couple of beers. The officer then had
Stefaniak perform several field sobriety tests and concluded that he failed to
perform them satisfactorily. Stefaniak
refused to consent to a Breathalyzer or blood test and was arrested for
operating under the influence of an intoxicant. Stefaniak was convicted of the offense after a jury trial and now
appeals.
Stefaniak first alleges
that there is insufficient evidence to sustain the judgment of conviction. The test on review of a challenge to the
sufficiency of the evidence is whether the trier of fact, acting reasonably,
could be convinced of the defendant's guilt beyond a reasonable doubt. State v. Poellinger, 153
Wis.2d 493, 503-04, 451 N.W.2d 752, 756 (1990). The jury, not this court, determines the credibility of witnesses
and the weight of the evidence. Id.
at 504, 451 N.W.2d at 756. If
more than one reasonable inference can be drawn from the evidence, the one
which supports the finding of the jury must be adopted by this court. Id.
According to the
officer, Stefaniak had an odor of alcohol about him, slurred his speech,
admitted to drinking, and failed to perform the field sobriety tests
properly. Stefaniak raises a series of
explanations for each of the observations made by the officer and denies
certain parts of the officer's testimony.
However, the jury resolved all contested facts against Stefaniak and
accepted the officer's testimony as to his observations, the performance of the
field sobriety tests and the method of Stefaniak's operation of the
vehicle. This court concludes that the
jury, acting reasonably, could believe the officer's testimony and the evidence
is sufficient to support the finding of guilt.
Stefaniak next suggests
that the officer had no probable cause for his arrest. This court does not agree. Probable cause to arrest is that quantum of
evidence which would lead a reasonable police officer to believe the defendant
probably committed an offense. State
v. Paszek, 50 Wis.2d 619, 624, 184 N.W.2d 836, 839 (1971). The factors identified by the officer at the
time of the arrest, though contested by Stefaniak, are sufficient to justify
the officer's investigation and support a basis for the officer's arrest. This court concludes the evidence is
sufficient to constitute probable cause necessary to support Stefaniak's
arrest.
Stefaniak next alleges
that his defense lawyer was ineffective for failing to effectively
cross-examine witnesses and for not introducing other explanations for the
officer's observations. First time
drunk driving offenses are civil, non-criminal charges. County of Racine v. Smith, 122
Wis.2d 431, 435, 362 N.W.2d 439, 441 (Ct. App. 1984). Because this is a civil case, Stefaniak may not raise ineffective
assistance of counsel as a constitutional challenge to his conviction. See Big Bend v. Anderson,
103 Wis.2d 403, 405-06, 308 N.W.2d 887, 889 (Ct. App. 1981). This case was prosecuted by the City of
Appleton as a non-criminal case and, accordingly, ineffective assistance of
counsel challenges may not be made against the judgment of conviction.
Stefaniak's pro se brief
also suggests that the police department enforcement policies violate his
substantive due process and equal protection rights. However, these arguments are not sufficiently developed and
therefore will not be addressed. See
W.H. Pugh Coal Co. v. State, 157 Wis.2d 620, 634, 460 N.W.2d 787,
792 (Ct. App. 1990). Further, because
the appeal of the order determining that Stefaniak unlawfully refused to submit
to a chemical test was dismissed as untimely, this court will not decide any
issues regarding that order.
This court concludes
that the evidence is sufficient to support the finding of guilt, that the
officer had probable cause for the arrest and that counsel's performance does
not constitute a basis to challenge the judgment of conviction. Therefore, the judgment is affirmed.
By the Court.—Judgment
affirmed.
This opinion will not be
published. Rule 809.23(1)(b)4, Stats.