COURT OF APPEALS DECISION DATED AND RELEASED December 14, 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.
95-1888-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
OLIVIA M. CAVIALE,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Iowa County:
JAMES P. FIEDLER, Judge. Affirmed.
GARTZKE, P.J.[1] Olivia M. Caviale appeals from a judgment
convicting her of violating § 346.63(1)(a) and (b), Stats.
Caviale asserts the complaint should have been dismissed because the
charging portion omits an element of the offense, that she was operating a
motor vehicle on a highway or on premises held out to the public for the use of
a motor vehicle, and because the complaint does not establish probable cause to
believe that she is the person who committed the crime charged. The consequences are, she asserts, that the
trial court lacked subject-matter jurisdiction, the judgment must be reversed
and this action remanded with directions to dismiss it, "without
prejudice." We reject her
contentions and affirm.
The charging portion of
the complaint alleges that Caviale
unlawfully
operate[d] a motor vehicle while under the influence of an intoxicant, contrary
to Section 346.63(1)(a) of the Wisconsin Statutes, ... [and] unlawfully
operate[d] a motor vehicle while having a blood alcohol concentration of .1% or
more by weight, contrary to Section 346.63(1)(b) of the Wisconsin Statutes.
To violate
§ 346.63(1), Stats., a
person must operate the vehicle on a "highway" or on "premises
held out to the public for use of their motor vehicles." Sections 346.02(1) and 346.61, Stats.
The charging portion of the complaint does not expressly allege either
element.
A complaint failing to
allege all of the elements of an offense is sufficient if it correctly cites
the applicable substantive criminal statute.
State v. Petrone, 161 Wis.2d 530, 558, 468 N.W.2d 676, 686
(1991). This rule applies even when the
court reads an element of the offense into the statute. Id. The complaint correctly cited the substantive criminal statute,
§ 346.63(1)(a) and (b), Stats.,
and we construe § 346.63(1)(a) and (b), to include the element of
operating on a highway or on premises held out to the public. We do so because § 346.61, Stats., provides in relevant part,
"In addition to being applicable upon highways, ss. 346.62 to 346.64 are
applicable upon all premises held out to the public for use of their motor vehicles
...." It is senseless to read
§ 346.63(1)(a) or (b) as not incorporating that provision. The pleadings therefore sufficiently allege
all the elements of the offense.
Moreover, the narrative
portion of the complaint dispels any doubt that Caviale was charged with
operating on a public highway. The
complaint alleges that the arresting officer saw the vehicle driven by Caviale
"operating on East Merrimac Street."
Finally, § 971.26, Stats., provides in relevant part,
"No ... complaint ... shall be invalid, nor shall the trial, judgment or
other proceedings be affected by reason of any defect or imperfection in
matters of form which do not prejudice the defendant." Under the circumstances, the claimed pleading
defect is a matter of form, and Caviale does not argue that it prejudiced her.
We reject the argument
that the complaint fails to state probable cause because it did not factually
link Caviale to the offense. The
narrative alleges that the arresting officer
observed
a vehicle operating on East Merrimac Street.
Forbes [the officer] states said vehicle was missing the driver's side
red tail lamp. Forbes states she also
observed said vehicle deviating from its lane of travel. Forbes states at one point the driver of
said vehicle attempted to make a right hand turn into a driveway, then swerved
quickly left back onto East Merrimac Street.
Forbes states she stopped said vehicle.
Forbes states she made contact with the driver of said vehicle later
identified as Olivia M. Caviale, d.o.b. 01/25/60.
The
narrative then refers to Caviale by name in ten other places. It is cavilling to claim that the complaint
"states no facts to show that it was this defendant, the named person
charged, whom the officer saw driving."
This court is reluctant
to label an appeal prosecuted by an experienced attorney as frivolous, and we
do not do so here. However, this appeal
hovers on the brink.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.