|
COURT OF
APPEALS DECISION DATED AND
RELEASED January
25, 1996 |
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. 95-2086
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
STEVEN
E. BENASH,
Defendant-Appellant.
APPEAL
from an order of the circuit court for Rock County: GERALD W.
JAECKLE, Judge. Affirmed.
DYKMAN,
J. This is a single-judge appeal
decided pursuant to § 752.31(2)(c), Stats. Steven E. Benash appeals from an order in
which the trial court found that he unlawfully refused to submit to a chemical
test in violation of § 343.305(9), Stats. Benash raises the following issues on
appeal: (1) whether the police officer had probable cause to
believe that Benash was operating a motor vehicle while intoxicated (OMVWI);
and (2) whether the trial court judge was impartial. We conclude that: (1) the
officer had probable cause to believe that Benash was operating a motor vehicle
while intoxicated; and (2) the judge was not biased. Accordingly, we affirm.
BACKGROUND
The
following facts are taken from a refusal hearing. On March 27, 1995, Deputy Sheriff Jeffrey A. Klenz of the Rock
County Sheriff's Department was called to investigate an accident on Highway 59
in Rock County. At the scene, he found
a black car rolled over on its roof, lying in a ditch. The fire department had already removed the
driver, later identified as Steven E. Benash, from the car and Deputy Klenz
assisted in putting Benash in an ambulance.
While doing so, he smelled a strong odor of alcohol or intoxicants
coming from Benash and Benash appeared to be injured. Deputy Klenz examined the car and found an open one-quart bottle
of whiskey that was between one-half and three-quarters empty. Deputy Klenz did not notice any obvious
obstructions on the road which might have caused the accident.
Deputy
Klenz accompanied Benash to the hospital and attempted to question him about
the accident. Benash was uncooperative
with him and the hospital staff. Benash
claimed that he had swerved to avoid a squirrel and lost control of the
car. Deputy Klenz again noticed a
"real strong odor of intoxicants," and slurred and slowed
speech. Benash was belligerent and
yelled and screamed at the hospital staff about Deputy Klenz's presence.
Deputy
Klenz placed Benash under arrest, issued him a citation for OMVWI, and put the
citation in Benash's boot. Deputy Klenz
read Benash the informing the accused form and asked him to take a blood test. Benash refused and Deputy Klenz left. Deputy Klenz did not perform field tests
because of Benash's injuries and the fact that the hospital staff were treating
him.
At
the close of testimony, Benash argued that because the State failed to offer
the informing the accused form as evidence, the trial court could not conclude
that he refused a test. The court told
the prosecutor that this form was necessary for the State to prove its case,
and permitted the State to reopen the hearing.
The State recalled Deputy Klenz and offered the form he read to
Benash.
Based
upon this evidence, the trial court determined that Benash unlawfully refused
to submit to a chemical test, contrary to § 343.305(9), Stats.
The court indicated, however, that had the State not reopened the
hearing, it would have found that there was no refusal. Benash appeals.
PROBABLE CAUSE
Benash challenges the
trial court's finding that Deputy Klenz had probable cause to arrest him for
operating a motor vehicle while intoxicated.
When a person is arrested for this offense, an officer may ask the
defendant to provide a blood sample.
Section 343.305(3)(a), Stats. If the person refuses, the officer issues a
notice of intent to revoke the person's operating privileges. Section 343.305(9)(a). The person may then request a hearing on the
revocation, also known as a refusal hearing, in which the court determines,
among other things, whether the officer had probable cause to believe that the
person was driving under the influence of alcohol. State v. Wille, 185 Wis.2d 673, 679, 518 N.W.2d
325, 327 (Ct. App. 1994).
Probable
cause is an objective standard to be determined from the totality of the
circumstances facing the arresting officer.
Illinois v. Gates, 462 U.S. 213, 230 (1983). In determining whether the police had
probable cause to arrest a defendant, we may consider the police officer's
conclusions based upon his or her investigative experience. Wille, 185 Wis.2d at 683, 518
N.W.2d at 329.
In
State v. Swanson, 164 Wis.2d 437, 453-54 n.6, 475 N.W.2d 148, 155
(1991), the supreme court concluded that unexplained erratic driving, the odor
of intoxicants on the defendant's breath, an accident which occurred after the
bars had closed, taken together, gave a police officer reasonable suspicion,
but not probable cause, that a person was driving while intoxicated. The court explained:
Unexplained erratic driving, the odor of alcohol, and
the coincidental time of the incident form the basis for a reasonable suspicion
but should not, in the absence of a field sobriety test, constitute probable
cause to arrest someone for driving while under the influence of intoxicants.
Id. And in State v. Seibel,
163 Wis.2d 164, 180-83, 471 N.W.2d 226, 233-35, cert. denied, 502 U.S.
986 (1991), the court determined that erratic driving which caused an accident,
a strong odor of intoxicants coming from the driver's companions, an odor of
intoxicants on the driver, and the driver's belligerent conduct at a hospital,
together, provided the police with reasonable suspicion, but not probable
cause, that the driver was operating a motor vehicle while intoxicated.
But
in Wille, we concluded that where a police officer and a fire
fighter smelled intoxicants coming from the defendant, another police officer
smelled intoxicants when near the defendant, the defendant had been involved in
a car accident, and the defendant said at the hospital that he had "to
quit doing this," there was probable cause to believe that the defendant
was operating a motor vehicle while intoxicated. Wille, 185 Wis.2d at 683-84, 518 N.W.2d at
329. In so doing, we explained that Swanson
does not require field sobriety tests in all cases before deciding whether to
arrest for operating a motor vehicle while under the influence of an
intoxicant. Id. at 684,
518 N.W.2d at 329. But where the police
have stronger grounds for believing that a defendant was operating his or her
car while under the influence of an intoxicant, probable cause may still be
found without such tests. Id. Thus, the defendant's statement that he had
"to quit doing this," was sufficient to distinguish the case from Swanson
and, with the other factors, provided sufficient evidence to give the police
probable cause. Id.
This
case is more like Wille than Swanson or Seibel
because Deputy Klenz was faced with stronger evidence of guilt. Deputy Klenz did not just notice a smell of
intoxicants coming from Benash at the accident scene and at the hospital, he
noticed a very strong smell.
Benash was also involved in a one-car accident and was belligerent. Most importantly, though, Deputy Klenz found
a one-half to three-quarter's empty open bottle of whiskey lying in the
car. Based upon these facts, we
conclude that a police officer in Deputy Klenz's position could reasonably
conclude that Benash was probably driving while intoxicated.
IMPARTIAL JUDGE
Benash
next argues that the trial court judge was not impartial because the judge
declared that had the State not moved to reopen the case, which it did at the
judge's suggestion, it would not have proved its case against Benash. Benash argues that the evidence reflects the
judge's "undue friendship or favoritism towards" the State and that
the judge took over the prosecution against him. We disagree.
Whether
a judge is neutral and detached is a question of constitutional fact which we
review de novo. State v.
McBride, 187 Wis.2d 409, 414, 523 N.W.2d 106, 109 (Ct. App. 1994), cert.
denied, 115 S. Ct. 1796 (1995). We
presume that a judge is free of bias and partiality. Id. at 414-15, 523 N.W.2d at 109. A party asserting judicial bias may only
overcome this presumption by a preponderance of the evidence. Id. at 415, 523 N.W.2d at
109.
Whether
a judge is biased has a subjective and objective component. Id., 523 N.W.2d at 110. The subjective component is based upon the
judge's own determination of whether he or she may act impartially. Id. Under the objective component, we must determine whether there
are objective facts demonstrating actual bias.
Id. at 416, 523 N.W.2d at 110. Toward this end, the party asserting bias must show that the
trial judge treated the party unfairly and not that there was merely an
appearance of partiality or that the circumstances might lead one to speculate
that the judge was partial. Id.
Benash
has not shown that the judge was actually biased against him because there is
nothing in the record to show that the judge acted unfairly when he ruled
against Benash. In fact, quite the
opposite is true. Prior to making a
ruling, the judge asked the State if it had evidence of the informing the
accused form which Deputy Klenz read to Benash because the judge was concerned
that if this evidence was not available, he could not find that Benash unlawfully
refused a chemical test for intoxication.
Just because the judge permitted the State to recall Deputy Klenz to
obtain this evidence from him and the judge eventually ruled against Benash
does not reflect partiality.
While
a judge should not take an active role in trying the case for either the State
or the defense, the judge is more than a mere referee. He or she may clarify questions and answers
and make inquiries where obvious important evidentiary matters are ignored or
inadequately covered on behalf of the State or the defendant. State v. Asfoor, 75 Wis.2d
411, 437, 249 N.W.2d 529, 540-41 (1976).
The judge is not just an arbiter but, as an officer of the court, he or
she is charged with seeking the truth of the matter. Oftentimes, a judge will ask a witness questions, see Rule 906.14(2), Stats., the answers to which may be used against either
party. Telling an inexperienced
prosecutor[1]
that certain evidence is necessary to prove a case does not give rise to a
claim of partiality. The judge issued a
correct ruling based upon the facts presented at the refusal hearing. Accordingly, we affirm.
By
the Court.—Order affirmed.
Not
recommended for publication in the official reports. See Rule
809.23(1)(b)4, Stats.