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COURT OF APPEALS DECISION DATED AND RELEASED February 13, 1996 |
NOTICE |
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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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-1359
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
COUNTY OF ASHLAND,
Plaintiff-Respondent,
v.
JOHN JAAKKOLA,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Ashland County: ROBERT E. EATON, Judge. Affirmed.
MYSE, J. John Jaakkola, pro se,
appeals a judgment of conviction for operating a motor vehicle while under the
influence of an intoxicant contrary to § 346.63(1)(a), Stats., and an order revoking his driving privileges based
upon his refusal to submit to a chemical test pursuant to § 343.305(3)(a),
Stats. Jaakkola raises the following issues on appeal: (1) whether the officer had reasonable
suspicion to stop him; (2) whether the officer had probable cause for the
arrest; (3) whether his statements were inadmissible because the officers
failed to read him the Miranda[1]
warnings; (4) whether the officers were required to give him a
urine test for intoxication when he requested it; (5) whether the officers were
required to advise him of the effect of his disabilities on his obligation to
take a test for intoxication; and (6) whether the trial court erred by not
admitting his exhibits into evidence and by not reopening the trial so he could
introduce testimony of an additional witness.
Because this court concludes that Jaakkola's contentions are without
merit, the judgment and order are affirmed.
On December 2, 1994,
deputy Robert Menard was on patrol when he received a dispatch call indicating
that an individual at the Bad River Casino had threatened to set fire to the
casino and a motorcycle. Menard was further
informed that the individual had left the scene on a black motorcycle and was
headed east on Highway 2. Almost
immediately following this dispatch and in an area consistent with the
information, Menard observed Jaakkola operating a black motorcycle headed east
on Highway 2. After Menard turned his
squad car around, he observed that Jaakkola had parked the motorcycle just off
the roadway of the westbound lane facing east.
Menard pulled in front of the motorcycle and asked Jaakkola to remain
there while he turned his squad car around.
After turning his car around, Menard approached Jaakkola to inquire why
he was facing the wrong direction on the road and whether he was the individual
who made threats at the casino. Menard
observed that Jaakkola did not seem to have good balance, his conversation was
irrational and an odor of intoxicants emanated from Jaakkola while he
talked. After a preliminary breath test
indicated a .14% breath alcohol content, Menard arrested Jaakkola for operating
while under the influence of an intoxicant.
At the police station,
Menard read Jaakkola the Informing the Accused Form and then asked him to
submit to a breath test on the Intoxilyzer 5000. Jaakkola agreed to take the breath test. However, after several attempts, Jaakkola
did not produce sufficient breath samples to complete the test. Menard then requested that Jaakkola submit
to a blood test and Jaakkola refused.
Jaakkola was subsequently charged with refusal.
At the refusal hearing,
the court announced that it would also regard the hearing as a suppression
hearing based upon Jaakkola's contention that Menard lacked authority to stop
him and that there was no probable cause for his arrest. At the close of the hearing, the trial court
determined that Menard had reasonable suspicion to stop and probable cause to
arrest Jaakkola, and that Menard complied with the informing the accused
standard. The trial court further determined
that both Jaakkola's failure to provide sufficient breath samples to complete
the Intoxilyzer 5000 test and his refusal to take a blood test constituted
improper refusals. Accordingly, the
trial court revoked Jaakkola's driving privileges for one year. The trial court later convicted Jaakkola of
operating while under the influence of an intoxicant.
First, Jaakkola contends
that Menard did not have reasonable suspicion to stop him. This issue presents a question of law that
this court reviews without deference to the trial court. State v. Krier, 165 Wis.2d
673, 676, 478 N.W.2d 63, 65 (Ct. App. 1991).
Ashland County argues
that Menard's first contact with Jaakkola was not a seizure requiring
reasonable suspicion and even if it was such a seizure Menard had reasonable
suspicion to stop Jaakkola. Because
this court concludes that there was reasonable suspicion to stop Jaakkola, we
need not consider the County's alternative argument. Terry v. Ohio, 392 U.S. 1 (1968), governs the
validity of an investigatory stop.
Under Terry, the police officer must reasonably suspect,
in light of his or her experience, that some criminal activity has taken or is
taking place before stopping an individual.
State v. King, 175 Wis.2d 146, 150, 499 N.W.2d 190, 191
(Ct. App. 1993). The focus is on reasonableness
and the determination of reasonableness depends on the totality of the
circumstances. Id.
In this case Menard had
been advised that an individual driving a black motorcycle heading east on
Highway 2 had threatened to burn the casino and a motorcycle. Immediately thereafter, Menard observed
Jaakkola on a black motorcycle heading east on Highway 2 in an area consistent
with the dispatch. In addition,
Jaakkola parked his motorcycle on the wrong side of the roadway. The threat to commit a serious crime
together with sufficient circumstances indicating that it was Jaakkola who made
the threat are sufficient for an investigative stop. Because this court concludes that there was reasonable suspicion
authorizing the investigative stop, Jaakkola's contention is without merit.
Jaakkola also contends
that the officer had no probable cause to arrest him. The issue whether the officer had probable cause is a question of
law that this court reviews de novo. State
v. Babbitt, 188 Wis.2d 349, 356, 525 N.W.2d 102, 104 (Ct. App.
1994). Probable cause to arrest is that
quantum of evidence which would lead a reasonable police officer to believe
that the defendant probably committed the offense. Id.
Probable cause does not require "proof beyond a reasonable doubt or
even that guilt is more likely than not."
Id. at 357, 525 N.W.2d at 104. In this case, Menard testified that: (1) Jaakkola parked his
motorcycle facing the wrong way on the roadway; (2) Jaakkola exhibited poor
balance; (3) Jaakkola's conversation was irrational; (4) the odor of alcohol
emanated from Jaakkola when he talked; and (5) a preliminary breath test
indicated intoxication. These factors
are sufficient to constitute probable cause necessary to support Jaakkola's
arrest. See id. at
356-57, 525 N.W.2d at 104.
Jaakkola next argues
that his statements were inadmissible because Menard did not give him the
warning required under Miranda v. Arizona, 384 U.S. 436
(1966). This court disagrees. First time drunk driving offenses are civil,
noncriminal charges. Racine v.
Smith, 122 Wis.2d 431, 435, 362 N.W.2d 439, 441 (Ct. App. 1984) Because Jaakkola's offense was prosecuted as
a civil forfeiture action, the Miranda requirements do not
apply. See Menomonee Falls
v. Kunz, 126 Wis.2d 143, 148, 376 N.W.2d 359, 362 (Ct. App. 1985).
Next, Jaakkola argues
that he requested a urine test to determine his blood alcohol level and the
officer's denial of his request was error.
Jaakkola's argument fails for two reasons. First, the record at the refusal hearing does not disclose that
he requested a urine test. At the
hearing, Jaakkola asked the officer whether he had made such a request and the
officer responded that he did not remember.
Jaakkola did not take the stand to testify that he made the request and
no evidence was introduced by either side indicating the request was made. Moreover, the alternative test is available
only after submitting to the initial test.
In re Bardwell, 83 Wis.2d 891, 897, 266 N.W.2d 618, 620
(1978); see also State v. Renard, 123 Wis.2d 458, 461, 367 N.W.2d
237, 238 (Ct. App. 1985); § 343.305(5), Stats. Jaakkola's failure to provide two separate
adequate breath samples constitutes a refusal under § 343.305(6)(c)3, Stats.
In addition, Jaakkola refused to take a blood test. Because Jaakkola did not submit to either
test, he has no statutory right to another test. See Bardwell, 83 Wis.2d at 897, 266 N.W.2d
at 620; § 343.305(5), Stats.
Next, Jaakkola contends
that the police were required to advise him of the effect of disabilities on
his obligation to take a test for intoxication. The implied consent statute specifically sets forth the
information that a law enforcement officer is required to give to an individual
at the time a chemical test specimen is requested. See § 343.305(4), Stats. Nowhere in this list of rights is there any
indication that the individual is to be advised of the effect of disabilities
on his taking the test. Id. While a disability can be a defense to a
refusal under § 343.305(9)(a)5.c, Stats.,
there is no requirement that a law enforcement officer give the advice prior to
the taking of a breath or blood alcohol test.
Because this court concludes that there is no requirement that such
advice be given and Jaakkola fails to adequately develop a due process claim
for failing to give the advice, this court rejects the contention and will not
address the issue further. See Goossen
v. Estate of Standaert, 189 Wis.2d 237, 252, 525 N.W.2d 314, 320
(Ct. App. 1994).
Last, Jaakkola contends
the trial court erred by not accepting his exhibits in evidence and by not
reopening the refusal hearing after its conclusion so he could introduce
testimony of an additional witness.
These claims are submitted to the sound discretion of the trial
court. State v. Hereford,
195 Wis.2d 1054, 1065, 537 N.W.2d 62, 66 (Ct. App. 1995). Accordingly, the trial court's determination
must be affirmed on appeal if "it has a reasonable basis and was made in
accordance with accepted legal standards and the facts of record." Id.
After the County called
a witness and Jaakkola called three witnesses, Jaakkola told the court he did
not wish to call any additional witnesses.
After the County's closing argument, Jaakkola tried to present the exhibits
to the court. The County observed the
documents for the first time and objected to them as hearsay. The trial court sustained the objection on
the grounds that the exhibits were hearsay and their submission was untimely. Jaakkola then stated he wanted to call
another witness and the trial court denied his request.
The trial court
correctly concluded that the exhibits were hearsay. The documents that were apparently offered are reports relating
to sores on Jaakkola's tongue and his back problems. Jaakkola now contends that the documents were admissible as
records of regularly conducted activity or as health provider records. See §§ 908.03(6) and (6m), Stats.
However, Jaakkola did not make this argument before the trial court and
did not present the testimony of a custodian or other qualified witness. See id. Accordingly, this court concludes
that the trial court properly exercised its discretion when it did not admit
the exhibits into evidence.
This court also
concludes that the trial court did not erroneously exercise its discretion when
it did not allow the additional witness after testimony was closed. Jaakkola had rested his case and the court
was under no obligation to reopen for the receipt of additional testimony,
particularly when Jaakkola did not indicate the identity of the witness or the
information sought to be elicited from this witness. Without an offer of proof as to what the witness would testify
to, this court cannot conclude that the trial court erroneously exercised its
discretion. See § 901.03(1)(b), Stats.
Because this court finds
no merit to any of Jaakkola's contentions, the judgment and order are affirmed.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. Rule 809.23(1)(b)4, Stats.