COURT OF
APPEALS DECISION DATED AND
RELEASED March
14, 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. 95-2348-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
JAMES
W. PUSEL,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Juneau County: PATRICK
TAGGART, Judge. Affirmed.
DYKMAN,
J. This is a single-judge appeal
decided pursuant to § 752.31(2)(c), Stats. James W. Pusel appeals from a judgment
convicting him of one count of operating a motor vehicle while under the
influence of an intoxicant, contrary to § 346.63(1)(a), Stats., and one count of operating a motor vehicle with a
prohibited alcohol concentration, contrary to § 346.63(1)(b). Pusel raises the following issues on
appeal: (1) whether the trial
court erred when it automatically admitted the intoxilyzer test result because
the arresting officer did not read to Pusel the portion of the Informing the
Accused form relating to commercial drivers as required by § 343.305(4m), Stats.; and (2) whether Wis J I—Criminal 2669 creates an
unconstitutional presumption. We
conclude that: (1) the intoxilyzer
test result was automatically admissible because § 343.305(4m) was not in
effect when Pusel was arrested; and (2) the jury instruction does not
create an unconstitutional presumption.
Accordingly, we affirm.
BACKGROUND
On
March 27, 1993, Juneau County Deputy Sheriff Timothy T. Andres stopped James W.
Pusel after he observed Pusel driving erratically. Deputy Andres smelled a moderate odor of intoxicants on Pusel's
breath and noticed that Pusel's speech was slurred, his eyes were bloodshot and
that he appeared to be sleepy. He asked
Pusel to perform several field sobriety tests and upon completing the tests,
Deputy Andres arrested Pusel.
At
the police station, Deputy Andres read to Pusel the Informing the Accused form
which advises persons of their rights and obligations under Wisconsin's Implied
Consent Law. However, Deputy Andres
read only the section pertaining to persons who possess a regular driver's
license because Pusel was neither operating a commercial vehicle nor was he on
duty time. Pusel subsequently took an
intoxilyzer test of his breath which produced a reported value of .18 grams of
alcohol in 210 liters of breath.
At
trial, Pusel objected to the admission of the intoxilyzer test result because
Deputy Andres did not read the commercial driver's license section of the
Informing the Accused form. The trial
court admitted the test result into evidence because it found that Deputy
Andres took all reasonable steps necessary to determine whether Pusel was
operating as a commercially licensed driver and that the notice given on the
form adequately advised Pusel of his rights.
Pusel
subsequently objected to Wis
J I-Criminal 2669. Pusel
argued that because the jury was instructed that the intoxilyzer test result
was automatically admissible, the jury had to find that he had a prohibited
alcohol concentration and was under the influence of an intoxicant at the time
he operated his vehicle. After the
trial court denied Pusel's objection, the jury found him guilty of both
charges. Pusel appeals.
AUTOMATIC
ADMISSIBILITY
Pusel
challenges the trial court's determination that the intoxilyzer test result was
automatically admissible. Pusel asserts
that Deputy Andres's failure to read the commercially licensed driver section
of the Informing the Accused form violated § 343.305(4m), Stats.
But subsection (4m) was enacted by the legislature on April 15, 1994, by
1993 Wis. Act 315, and became effective April 30, 1994. Pusel was arrested on March 27, 1993—one
year prior to the subsection's effective date.
Therefore, subsection (4m) was not in existence when Pusel was arrested
and, instead, his arrest is governed by § 343.305(4), Stats., 1991-92.[1]
In
1993, § 343.305(4), Stats.,
1991-92, required a police officer to advise a driver of all statutory warnings
regardless of the operator's status, except the officer was not required to
read the commercial warnings to a driver who the officer had no basis for
believing was operating a commercial vehicle or on duty time at the time of
arrest. State v. Piskula, 168
Wis.2d 135, 140-41, 483 N.W.2d 250, 252 (Ct. App. 1992). In Piskula, we upheld a
conviction of a driver who was only informed of his rights as a regularly
licensed driver because the driver never asserted that he was driving a commercial
vehicle or was on duty time, and the officer had no reason to believe
otherwise. Id. We said:
Piskula was actually informed of all rights and
penalties relating to him. He was not
informed about the rights and penalties relating to drivers of commercial
vehicles, but Piskula was not driving a commercial vehicle and he does not
assert that he was driving or on duty time with respect to a commercial
vehicle .... It would be
unreasonable to require officers to inform persons who are clearly noncommercial
drivers about the rights and penalties applicable only to commercial
drivers. We conclude that Piskula was
properly informed of his rights pursuant to sec. 343.305(4) because there was
actual compliance with respect to the substance essential to every reasonable
objective of the statute.
Id. (citation omitted).
But
Pusel also argues that State v. Geraldson, 176 Wis.2d 487, 500
N.W.2d 415 (Ct. App. 1993), requires police officers to read the commercial
driver's section of the Informing the Accused form before the intoxilyzer test
is automatically admissible. In that case,
the court distinguished Piskula because the arresting officer
knew that Geraldson was licensed as a commercial operator. Id. at 493-95, 500 N.W.2d at
417-18. In this case, however, there is
no evidence that Deputy Andres knew that Pusel held a commercial license. Accordingly, Geraldson is
inapplicable.
There
is nothing in the record to indicate that Pusel asserted that he was anything
but a regularly licensed driver, that he was driving a commercial vehicle or
that he was on duty time. Deputy Andres
actually complied with the reasonable objectives of § 343.305(4), Stats., 1991-92, because he informed
Pusel of all rights and penalties relating to him as a holder of a regular
driver's license. Thus, the intoxilyzer
test result was automatically admissible.
JURY
INSTRUCTION
Pusel
next argues that Wis J I—Criminal
2669 creates the unconstitutional presumption that because the jury is informed
that the intoxilyzer test result is automatically admissible, the jury must
conclude that he was driving under the influence of an intoxicant or with a
prohibited alcohol concentration. He
argues that this is an unconstitutional presumption which violates his due
process rights.
The
burden of demonstrating that an erroneous instruction is so prejudicial that it
is unconstitutional is quite onerous. State
v. Vick, 104 Wis.2d 678, 691, 312 N.W.2d 489, 496 (1981). To determine whether this burden has been
met, it is insufficient for a party to merely demonstrate that "the
instruction is undesirable, erroneous, or even `universally
condemned.'" Id. (quoted
source omitted). Instead, the party
must demonstrate that "the ailing instruction by itself so infected the
entire trial that the resulting conviction violates due process." Id. (quoted source omitted).
The
jury was instructed that if it was satisfied that Pusel had a breath alcohol
content of .10 grams or more of alcohol in 210 liters of his breath when he
took the test, then it may find that Pusel was operating a motor vehicle
while under the influence of an intoxicant or with a prohibited alcohol
content, or both, but that it was not required to do so. Then the jury was instructed that an
intoxilyzer test is scientifically sound and that the State does not have to
prove its scientific reliability, but only that it was working properly and administered
by a qualified person.[2] Pusel argues that by juxtaposing this
language, the jury had to conclude that the test is accurate, without proof of
the accuracy of its methodology, and that the intoxilyzer test result, alone,
was sufficient to support convictions for both charges. In other words, the permissive inference
became an unconstitutional presumption when this language was combined. We disagree.
In
Vick, the court concluded that a jury instruction which uses the
word "may" and which states that the jury should convict only if it
is satisfied of guilt beyond a reasonable doubt is permissive and not
constitutionally infirm. Id.
at 697, 312 N.W.2d at 498-99. In this
case, the jury instruction used the term "may" and the trial court
provided the following qualifications:
You, the jury, are here to decide these
questions on the basis of all the evidence in the case, and you should not find
that the defendant was under the influence of an intoxicant at the time of the
alleged operating or that the defendant had a prohibited alcohol concentration
at the time of the alleged operating, or both, unless you are satisfied of that
fact beyond a reasonable doubt.
....
If you are satisfied beyond a reasonable doubt
that the defendant operated a motor vehicle on a highway while under the
influence [of] an intoxicant, you should find the defendant guilty of a
violation of Section 346.63(1)(a).
If you are not so satisfied, you must find the
defendant not guilty of a violation of [§] 346.63(1)(a).
If you are satisfied beyond a reasonable doubt
[that] the defendant operated a motor vehicle on a highway with a prohibited
alcohol concentration, you should find the defendant guilty of a violation of
Section 346.63(1)(b).
If you are not so
satisfied, you must find the defendant not guilty of a violation of Section
346.63(1)(b).
The
jury was given the option of convicting or acquitting Pusel. We do not believe that the references to the
automatic admissibility of the intoxilyzer test result caused the jury to
believe that it could not acquit.
Moreover, the jury was not told that the permissive presumption could
not be rebutted. We conclude that Pusel
has not demonstrated that the instruction "so infected the entire trial
that the resulting conviction violates due process." Vick, 104 Wis.2d at 691, 312
N.W.2d at 496. Accordingly, the
instruction does not create an unconstitutional presumption.
By
the Court.—Judgment affirmed.
Not
recommended for publication in the official reports. See Rule
809.23(1)(b)4, Stats.
[1] Section 343.305(4), Stats., 1991-92, provided:
At the time a
chemical test specimen is requested under sub. (3)(a) or (am), the person shall
be orally informed by the law enforcement officer that:
(a) He or she
is deemed to have consented to tests under sub. (2);
(b) If testing
is refused ... the person's operating privilege will be revoked under this
section and, if the person was driving or operating or on duty time with
respect to a commercial motor vehicle, the person will be issued an
out-of-service order for the 24 hours following the refusal;
(c) If one or
more tests are taken and the results of any test indicate that the person:
1. Has a
prohibited alcohol concentration and was driving or operating a motor vehicle,
the person will be subject to penalties, the person's operating privilege will
be suspended under this section ... ;
2. Has
an alcohol concentration of 0.04 or more and was driving or operating a
commercial motor vehicle, the person will, upon conviction of such offense, be
subject to penalties and disqualified from operating a commercial motor vehicle;
and
3. Has
any measured alcohol concentration above 0.0 and was driving or operating or on
duty time with respect to a commercial motor vehicle, the person will be
subject to penalties and issuance of an out-of-service order for the 24 hours
following the refusal; and
(d) After
submitting to testing, the person tested has the right to have an additional
test made by a person of his or her own choosing.
[2] The trial court instructed the jury to the
following:
Evidence has been
received that, within three hours after the defendant's alleged operating of a
motor vehicle, a sample of defendant's breath was taken. An analysis of the sample has also been
received.
If you are
satisfied beyond a reasonable doubt that there was .10 grams or more of alcohol
in 210 liters of defendant's breath at the time the test was taken, you may
find from that fact alone that the defendant was under the influence of an
intoxicant at the time of the alleged operating, or that the defendant had a
prohibited alcohol concentration at the time of the alleged operating, or both,
but you are not required to do so.
You, the jury, are
here to decide these questions on the basis of all the evidence in the case,
and you should not find that the defendant was under the influence of an
intoxicant at the time of the alleged operating or that the defendant had a
prohibited alcohol concentration at the time of the alleged operating, or both,
unless you are satisfied of that fact beyond a reasonable doubt.
The law recognizes
that the Intoxilyzer uses a scientifically sound method of measuring the
alcohol concentration of an individual.
The State is not required to prove the underlying scientific reliability
of the method used by the Intoxilyzer.
The State is
required to establish that the Intoxilyzer was in proper working order and that
it was correctly operated by a qualified person.