PUBLISHED OPINION
Case No.: 95-1074
†Petition for
review filed
Complete Title
of Case:
COUNTY OF OZAUKEE,
Plaintiff-Respondent,
v.
NANCY L. QUELLE,
Defendant-Appellant.†
Submitted on Briefs: November 3, 1995
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: November 22, 1995
Opinion Filed: November 22, 1995
Source of APPEAL Appeal
from a judgment
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Ozaukee
(If "Special", JUDGE: Joseph D. McCormack
so indicate)
JUDGES: Brown,
Nettesheim and Snyder, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn
behalf of the defendant-appellant, the cause was submitted on the briefs of Robert
C. Raymond and Roxanne F. Felizmena of Raymond Law Offices of
Milwaukee.
Respondent
ATTORNEYSOn
behalf of the plaintiff-respondent, the cause was submitted on the brief of Adam
Y. Gerol, assistant district attorney.
COURT
OF APPEALS DECISION DATED AND RELEASED November 22, 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. 95-1074
STATE
OF WISCONSIN IN COURT OF
APPEALS
COUNTY OF OZAUKEE,
Plaintiff-Respondent,
v.
NANCY L. QUELLE,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Ozaukee County:
JOSEPH D. MC CORMACK, Judge. Affirmed.
Before Brown, Nettesheim
and Snyder, JJ.
BROWN, J. Nancy L. Quelle pled no
contest to a charge of operating her vehicle while intoxicated. She now argues that the trial court erred in
denying her motion to suppress the results of her breath alcohol test because
the arresting officer did not accurately or completely inform her about
Wisconsin's implied consent law. She
asserts she was subjectively confused
by the officer's conduct. She argues
that while a “subjective confusion” defense has not to this point been
judicially recognized in Wisconsin, its viability was acknowledged by our
supreme court in Village of Oregon v. Bryant, 188 Wis.2d 680, 524
N.W.2d 635 (1994). We conclude that the
“subjective confusion” language in the decision is mere dicta and that the
court did not intend to launch such a defense.
Therefore, after reviewing existing case law, we hold that Quelle's test
was valid.
We will briefly outline
the facts with a more thorough accounting later. Quelle was brought to the station house after her arrest for
driving while intoxicated. There, an
officer read her the Informing the Accused form which consists of five
paragraphs. Quelle also read each
paragraph to herself and questioned the officer about each paragraph. At various points, the officer attempted to
explain the paragraphs to her and, after roughly forty-five minutes of
questions and answers, Quelle agreed to take the test. She did not pass.
In a pretrial motion, Quelle moved to
suppress the breath test results. In
the four months between her filing of the motion and the evidentiary hearing,
our supreme court released the Bryant decision. There, ruling on three consolidated cases,
the court found that Wisconsin's current Informing the Accused form is not
contradictory or confusing on its face.
Id. at 691-94, 524 N.W.2d at 639-40. However, the court wrote:
We emphasize also that in none of the
cases before us is there any claim on this review that the drivers were
subjectively confused. We merely
determine as a matter of law that the statutes are consistent and not
contradictory, nor are the regulations interpreting them.
Id. at
693-94, 524 N.W.2d at 640; see id. at 686 n.3, 524 N.W.2d at
637. Based upon this passage, the
testimony at the suppression hearing centered on whether Quelle became subjectively
confused by the officer's attempts to explain the form to her. As voiced by her counsel, Quelle's
contention before the trial court was that the “officer told her things which
are in essence inconsistent with what the law is or is confusing.” After the hearing, the trial court took the
case under advisement to review the Bryant case and eventually
denied the motion to suppress. The
trial court found that the officer's conduct was not contradictory or
confusing. Quelle then pled no contest
to the charge and brought this appeal.
Initially, we address the County's waiver
claim. It cites established law that a
plea of guilty, knowingly and understandingly made, constitutes a waiver of
nonjurisdictional defenses, including claimed violations of constitutional
rights. County of Racine v.
Smith, 122 Wis.2d 431, 434, 362 N.W.2d 439, 441 (Ct. App. 1984). Waiver also applies where the plea is one of
no contest. Id. While the legislature has promulgated §
971.31(10), Stats., allowing
defendants to appeal denials of motions to suppress notwithstanding a guilty or
no contest plea, the statute only applies in criminal cases. Smith, 122 Wis.2d at 435, 362
N.W.2d at 441. This is not a criminal
case. While the County acknowledges
that an appellate court may review nonjurisdictional errors in the exercise of
its discretion, id. at 434, 362 N.W.2d at 441, it nonetheless
contends that we should apply Smith and dismiss Quelle's claim.
We decide not to apply
the waiver rule here for the following reasons. First, although a jury trial was scheduled, the no contest plea
saved administrative costs and time. As
we pointed out in Smith, it often improves the administration of
justice to avoid an unnecessary and protracted trial when the sole issue is a
review of a suppression motion. See id.
at 437-38, 362 N.W.2d at 442. Second,
since the issue raised on appeal was squarely presented before the trial court
and testimony was taken regarding the issue, we have an adequate record. Third, this does not appear to be a case
where the defendant took a chance on a more lenient sentence and then brought
this appeal when the sentence was more severe than hoped. All indications are that this was a garden-variety
first offender driving while intoxicated case and the penalty assessed was no
greater or lesser than usual. Cf. State
v. Holt, 128 Wis.2d 110, 124, 382 N.W.2d 679, 686 (Ct. App. 1985)
(recognizing that litigants may not use appellate rights simply to remedy an
unfavorable trial verdict). Fourth,
there are no published cases applying the pertinent language in Bryant. We are mindful of the rule favoring repose
when a defendant has pled guilty or no contest to a charge. See Smith, 122 Wis.2d
at 437, 362 N.W.2d at 442 (“He cannot be heard to complain of an act to which
he deliberately consents.”) (quoting Agnew v. Baldwin, 136 Wis.
263, 267, 116 N.W. 641, 643 (1908)). On
balance, however, we will not apply the waiver rule here.
Turning to the merits,
we first address what the statement about “subjective confusion” at the end of
the Bryant case means.
Pursuant to Rule 809.61, Stats., we originally certified this
question to the supreme court. This
request was denied. Therefore, we will
give our opinion as to the significance of Bryant's “subjective
confusion” language. This and the other
related issues Quelle raises are questions of law which we review de novo. See State v. Hagaman,
133 Wis.2d 381, 384-85, 395 N.W.2d 617, 618 (Ct. App. 1986).
We first observe that the warnings provided
drivers under the implied consent law are analogous to those employed in Miranda-type
cases.[1] The Miranda warnings
themselves are not confusing such that understanding the warnings affects a
person's unconstrained will to confess to a crime. See 1 Wayne R.
LaFave & Jerold H. Israel, Criminal
Procedure, § 6.9(b) (1984).
The police, however, may create confusion for the accused by misstating
the warnings or using other coercive and manipulative means to procure
information. See, e.g., Barrera
v. State, 99 Wis.2d 269, 291, 298 N.W.2d 820, 830 (1980), cert.
denied, 451 U.S. 972 (1981). There
are similar problems that may occur when police deliver the implied consent
warnings.
Every driver in
Wisconsin impliedly consents to take a chemical test for blood alcohol
content. Section 343.305(2), Stats.
A person may revoke consent, however, by simply refusing to take the
test. See
§ 343.305(9). Thus, a driver has a
“right” not to take the chemical test (although there are certain risks and
consequences inherent in this choice).
The legislature recognized that drivers being asked to take a chemical
test should be informed of this choice and therefore requires law enforcement
officers to provide drivers with certain information. Section 343.305(4). We conclude
that there is a functional similarity between this political conclusion and
the Supreme Court's command in Miranda v. Arizona, 384 U.S. 436,
467 (1966), that criminal suspects need to be informed of certain
constitutional rights.
These observations about
the implied consent law, nevertheless, must be reconciled with a line of our
earlier decisions that addressed alleged deficiencies in the officer's delivery
of the warnings. These cases support
the conclusion that an accused driver must make two showings when challenging
an officer's conduct: one, that the
officer misstated the warnings, or otherwise misinformed the driver, and two,
that the officer's misconduct impacted his or her ability to make the choice
available under the law.
Most notably, in State
v. Geraldson, 176 Wis.2d 487, 500 N.W.2d 415 (Ct. App. 1993), we faced
a driver who had his license revoked after refusing the chemical test. Although he was driving a Volkswagen at the
time of the stop, he also possessed a valid commercial license. The officer, however, failed to read him all
of the additional warnings that must be given to commercial drivers. Compare § 343.305(4), Stats., with
§ 343.305(4m). As a result, the
driver was not fully informed of the respective consequences to his standard
and commercial driving privileges. See
Geraldson, 176 Wis.2d at 488-91, 500 N.W.2d at 416-17.
Because the driver was
not given all of the information he was entitled to, we held that the state
could not revoke his operating privileges.
See id at 494-95, 500 N.W.2d at 418. In arriving at this conclusion, we
distinguished State v. Piskula, 168 Wis.2d 135, 140-41, 483
N.W.2d 250, 252 (Ct. App. 1992), where we held that the failure to read the
commercial warnings to a standard license holder was not a fatal error. We reasoned that these cases were founded on
a simple premise: the implied consent
warnings are designed to inform drivers of the rights and penalties applicable
to them. See Geraldson,
176 Wis.2d at 494, 500 N.W.2d at 418.
Thus, in Piskula there was no error because the driver did
not need to know what effects there could be to a commercial license that he
did not have. But in Geraldson,
the driver did have a commercial license; thus, he needed to know how a
violation under his standard license could affect his commercial privileges.
In addition to the Geraldson
line of cases, we believe that the analysis within State v. Sutton,
177 Wis.2d 709, 503 N.W.2d 326 (Ct. App. 1993), must be considered in our
assessment of the supreme court's “subjective confusion” language. There the driver claimed that the police
overstated the penalties associated with a refusal to take the chemical
test. They told him that he would not
only have his privileges revoked, but could also face a jail penalty. See id. at 712, 503
N.W.2d at 327.
Although the police had
misinformed the driver, we nonetheless held that the revocation order was valid
because there was no prejudicial effect on the driver. Id. at 715, 503 N.W.2d at
328. Even though the driver was led to
believe that the effects from refusing the test were far greater than they
actually were, he still believed that this avenue was a better choice than
taking the test. See id.
Although a reasonable
person could read the Bryant court's use of the term “subjective
confusion” to mean that the implied consent law may require assessing the driver's
perception of the information delivered to him or her, the statutory
framework and above case law demonstrate otherwise. Indeed, the Geraldson and Sutton
decisions together yield a stringent three-part standard that is applied to
assess the adequacy of warning process under the implied consent law:
(1) Has the law enforcement officer not
met, or exceeded his or her duty under §§ 343.305(4) and 343.305(4m) to
provide information to the accused driver;
(2) Is the lack or oversupply of
information misleading; and
(3) Has the failure to properly inform
the driver affected his or her ability to make the choice about chemical
testing?
We
therefore conclude that the “subjective confusion” language within Bryant
was nothing more than an observation that such a claim was not made in those
cases. It did not recognize “subjective
confusion” as a defense or acknowledge the viability of such a defense. We decline to recognize it as a
defense. Instead, the only recognized
defense is that which we have set forth.
In reaching this
conclusion, we reject Quelle's claim that the Bryant language suggests how an
officer has a duty to “explain” and not merely read the information form,
thereby reducing the chance that an accused driver would be “subjectively
confused” by the warnings.[2] We acknowledge that the Bryant
decision revealed some concern over how drivers may be confused by the
information on the form. See Bryant,
188 Wis.2d at 692, 524 N.W.2d at 640.
But the court did not intend to create a new defense of “subjective
confusion,” nor did it in any way suggest that officers should be required to
provide a “reasonable explanation” of the law to any driver who remains
confused after being given the standard warnings.
As we described above,
we find that the legislature has adequately addressed any risk of confusion by
imposing a statutory duty on the police to provide accused drivers with
specific information. Moreover, we see
nothing in Bryant suggesting that the Geraldson or Sutton
decisions are no longer the law.
Assigning any weight to the “subjective confusion” label chosen by the
supreme court would contradict the legislature's conclusion that the oral
delivery of information through § 343.305(4) & (4m), Stats., provides appropriate protection
for the accused drunk driver. Finally,
we note that judicial enactment of such a duty would open a Pandora's box. The decision of whether the officer should
have aided the confused driver could be litigated in absurdum.[3] We do not believe the supreme court intended
such a result and hold to the three-part standard outlined above.
With the above standard
in hand, we now turn to Quelle's specific challenges regarding the information
that was delivered to her as the officer attempted to explain the meaning of
the form. At the onset, we acknowledge
that our review of the record establishes how Quelle meets the first prong of
our standard. She has presented
undisputed evidence showing that the officer went beyond his statutory duty of
reading the information on the face of the form. Still, under the second prong of the test, we need to examine the
specific facts and determine if this additional information was false or
otherwise misleading.
Quelle consented to a
preliminary breath test while still in the field. When later brought to the station house, the officer read her the
Informing the Accused form. Paragraphs
1 and 2 inform the driver that he or she is presumed to have consented to
chemical testing and that refusal will result in a loss of driving privileges.[4] Here, Quelle argues that the officer's
explanation of these passages confused her.
Since she already had consented to a Preliminary Breath Screening Test
in the field, she did not understand how she now could refuse additional
testing.[5] Quelle asserts that the officer caused this
confusion by “continuing to insist that she could refuse ‘the test’ when it was
blatantly apparent that she did not think refusal was possible.”
This argument is
unfounded. As we have repeatedly
explained, law enforcement's duty under the implied consent law is to
accurately deliver information to the accused.
The officer's insistence that Quelle could refuse the station house test
was a proper statement of the law. Her
state of confusion stems from an inability to digest and interpret the words
and phrases of the form. Under Bryant,
however, this combination of words and phrases is not confusing. See Bryant, 188 Wis.2d
at 693-94, 524 N.W.2d at 640. The
officer's correct explanation of the law, therefore, cannot be grounds for
suppressing the test results.
Quelle's next complaint
pertains to her understanding of the type of test that would be
administered. The driver may ask the
police to perform another test different from that normally given by that
agency, e.g., a blood test in addition to a breath test. After the officer read this section of the
form to Quelle, she did not understand it and thus asked to read it herself.[6]
She previously had asked
the officer what tests would be administered.
He told her that she would only be getting a breath test. But after reading the form, she did not
understand that she was entitled to other tests. Although she did ask what type of tests she would be getting, she
did not make any request that the police administer another type.
Quelle asserts that her
decision not to take another test resulted only from the officer's failure “to
provide a reasonable explanation regarding that option.” She does not, however, present any evidence
that the officer told her she could not exercise this option. Although he indicated that the police would
only be giving a breath test, this was a correct statement of law enforcement's
option under the implied consent law.
Here, Quelle is only rekindling the argument that an officer is under a
duty to provide a “reasonable explanation” to a confused driver. But as we have emphasized, an officer only
has a duty to provide the information on the form. Thus, Quelle's argument fails because her confusion arose out of
an inability to interpret the form, not improper conduct by this officer.
Finally, Quelle argues
that she was misinformed of her ability to seek a separate chemical test
administered by a party of her choice.
Again, the officer read the relevant section to Quelle and she read the
form herself. Nonetheless, she became
confused over her right to a “reasonable opportunity” to obtain a third-party
test. She apparently asked the officer
what this term meant and he responded that it was “determined by a judge.” Quelle adds that by this time the officer
was becoming impatient and warned that if she continued to have questions, she would
have to “wait behind bars” while he attended to other pressing duties. Her position is summarized as follows:
[Quelle] did not understand the
provisions of paragraph 3 which informed her of her right to a second chemical
test. She discontinued asking questions
about paragraph 3, even though she was still confused, because, if she did not
cease, she was faced with the daunting prospect of being put behind bars, a
threat made by [the officer] because he was tired of answering her questions.
There are two flaws in
this argument. Primarily, as required
under the second prong, she fails to provide evidence that the officer gave her
false information.[7] Secondly, her argument again is premised on
a position that the officer had a duty to answer her questions and that he was
becoming aggravated because she was making it difficult to perform this
duty. However, as we have repeatedly
stated, an officer's only duty under the implied consent law is to accurately
deliver the information to the driver; an officer need not explain all of the
choices (and resulting consequences) embodied within these statutes.
In general, Quelle
characterizes herself as “an intelligent and inquisitive person ¼
[who] took the time to read the applicable portion of the Form to herself in
order to help her understand the provisions ¼.” The officer,
however, did not stop her from following her instincts. Thus, her confusion over the rights provided
under the implied consent law arose out of her inability to understand the
form, not the officer's breach of duty.
Applied to the framework
set out above, Quelle has satisfied the first prong by showing that the officer
provided her with information beyond that required under the applicable
law. She has not, however, met the
second prong and demonstrated that this information was inaccurate or
misleading. Therefore her claim fails.
By the Court.—Judgment
affirmed.
[1]
The supreme court expressed concern in Village of Oregon v.
Bryant, 188 Wis.2d 680, 692-93, 524 N.W.2d 635, 640 (1994), that
recitation of the standard warnings may confuse drivers; however, it cautioned:
We do not attempt to design such
forms or to devise a “Miranda- like” card to guide the Department of
Transportation law enforcement officers to inform an accused. But the department should do so.
While this dictum supports our Miranda analogy, it also suggests who should be the source of such warnings. The Miranda card is premised on “judge-made regulations for implementing or securing constitutional commands.” 1 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure, § 6.5(e) (1984) (quoted source omitted). The Informing the Accused form, however, is grounded upon a legislative conclusion. See § 343.305(4), Stats. Thus, an accused driver's rights under the implied consent law are primarily statutory. See Bryant, 188 Wis.2d at 692, 524 N.W.2d at 640 (“[S]tatutory protections and admonitions were afforded each of the defendants ¼.”); cf. § 343.305(3)(c).
[2]
Quelle specifically described in her briefs that:
because the issue of subjective confusion was left open in Bryant, an accused's subjective confusion may be caused by an officer providing incorrect information or by failing to provide a “reasonable” explanation to the accused's inquiries.
[3] In Bryant, the supreme court suggested that a goal of the implied consent law should be to “obviate unnecessary litigation.” See Bryant, 188 Wis.2d at 693, 524 N.W.2d at 640.
[4]
The form read to Quelle provided:
1. You are deemed under Wisconsin's Implied Consent Law to have
consented to chemical testing of your breath, blood or urine at this Law
Enforcement Agency's expense. The
purpose of testing is to determine the presence or quantity of alcohol or other
drugs in your blood or breath.
2. If you refuse to submit to any such tests, your operating privilege will be revoked.
[5] The implied consent law draws a distinction between these tests. Under § 343.303, Stats., an officer may request a Preliminary Breath Screening Test prior to arrest. However, the legislature has concluded that drivers need not be informed of this distinction. See § 343.305(4).
[6]
The relevant paragraph of the form read to Quelle provides:
3. After submitting to chemical testing you may request the alternative test that this law enforcement agency is prepared to administer at its expense or you may request a reasonable opportunity to have any qualified person of your choice administer a chemical test at your expense.