|
COURT OF APPEALS DECISION DATED AND RELEASED April 10, 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. 95-2369
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
ISABEL GOMEZ,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Waukesha County:
JOSEPH E. WIMMER, Judge. Affirmed.
SNYDER, J. Isabel
Gomez appeals from an order finding that he refused to submit to a chemical
test in violation of § 343.305, Stats. Gomez contends that the arresting officer
did not have probable cause to arrest him for operating a motor vehicle while
under the influence of intoxicants. He
further contends that the trial court applied an incorrect burden of proof when
it found that he refused to permit a blood test after the officer determined a
breath test would not be taken. Because
we conclude that there was probable cause for the arrest and that the trial
court applied the correct burden of proof, we affirm.
Officer Michael Knetzger
was dispatched in the early evening to the scene of a single-car accident. Upon his arrival, Knetzger observed a car
which appeared to have been driven off the road, into a yard, striking a
telephone pole. Witnesses at the scene
informed Knetzger that the driver of the vehicle was inside a nearby residence.
Knetzger entered the residence
and Gomez was identified as the driver of the vehicle. Knetzger noted that Gomez was bleeding from
the area of his mouth. Knetzger asked
him what had happened and Gomez responded that a deer ran in front of his car,
he swerved to avoid the animal and he drove off the road. During their conversation, Knetzger smelled
an odor of intoxicants on Gomez' breath and noticed that he slurred his speech.
Knetzger asked Gomez
whether he had been drinking. Gomez
admitted that he had consumed “about 6 or 7 drinks.”[1] Knetzger also asked Gomez whether he was
injured or was experiencing any dizziness or lightheadedness, and Gomez
responded that he was not. Gomez agreed
to submit to field sobriety tests, but he was unable to perform the tests
satisfactorily.[2] While Gomez testified that his speech was
slurred because of the injury to his mouth and that he had difficulty walking
because of injuries to his knees, he did not relate these infirmities to
Knetzger. Gomez also testified that he
had only a vague recollection of this time period.
After Gomez failed to
satisfactorily perform the field sobriety tests, Knetzger placed him under
arrest and transported him to the hospital for treatment and a blood test.[3] There the officer read him the Informing the
Accused form. Gomez indicated that he
understood it, but he refused to submit to a blood test.[4]
Gomez requested a
refusal hearing. At the hearing, the
trial court found that there was probable cause for Knetzger to request the
blood test and that the other three criteria for finding a refusal unreasonable
were met. See State v.
Nordness, 128 Wis.2d 15, 28, 381 N.W.2d 300, 305 (1986). Gomez' driving privileges were then revoked
for one year and this appeal followed.
Gomez first contends
that Knetzger did not have probable cause to believe that he was operating a
motor vehicle while intoxicated. Because
there are disputed facts, we review this issue as a mixed question of fact and
law. See State v.
Drogsvold, 104 Wis.2d 247, 256, 311 N.W.2d 243, 247 (Ct. App.
1981). In this case, the factual
determination will not be reversed on appeal unless it is contrary to the great
weight and clear preponderance of the evidence. See id.
Under Nordness,
in a probable cause determination the trial court must ascertain the
plausibility of the arresting officer's account. See Nordness, 128 Wis.2d at 36, 381 N.W.2d
at 308. The trial court is not to weigh
the evidence between the parties. Id. Probable cause exists where the totality of
the circumstances known to the officer would lead a reasonable police officer
to believe that the individual was operating a motor vehicle while
intoxicated. Id. at 35,
381 N.W.2d at 308.
The factors recited by
Knetzger in arriving at a determination that there was probable cause for
Gomez' arrest included: (1) an odor of
intoxicants, (2) slurred speech, (3) Gomez' admission that he had consumed six
or seven drinks, and (4) Gomez' failure to satisfactorily perform a number of
field sobriety tests. Knetzger also
testified that he asked Gomez whether he was injured, felt dizzy or was lightheaded. Gomez denied any injuries or dizziness.
In making the probable
cause determination, the trial court recognized that Gomez' slurred speech
could have been attributed to the injury to his mouth. The court further stated that it was
possible that Gomez may have had difficulty on several of the field sobriety
tests because of his injuries and the fact that his face hit an air bag. However, even without that evidence the
court found that there was “obvious probable cause” to sustain Gomez' arrest. We agree.
Gomez counters this with
an argument that since his erratic driving was explained (as caused by a deer)
and the field sobriety tests “[could not] assist the officer” (because of his
injuries), the odor of intoxicants alone could not provide the sole basis for
his arrest.
This argument fails to
take into account that while the trial court opined that some of Gomez'
difficulties with the sobriety tests could have been attributable to his
injuries, there were other unexplained difficulties that Gomez encountered in
performing the requested field sobriety tests.
For example, he was unable to follow the directions for the
finger-to-nose test and would not keep his eyes closed. Not only was Gomez unable to perform any of
the tests satisfactorily,[5]
Knetzger also considered the odor of intoxicants and Gomez' admission that he
had consumed six or seven drinks.
Furthermore, at no point
did Gomez tell Knetzger that his injuries were affecting his ability to perform
the field sobriety tests. In fact,
Gomez responded in the negative to direct questions about his condition and
possible injuries. He refused medical
treatment. The findings of the trial
court were not against the great weight and clear preponderance of the
evidence. We uphold the trial court's
finding that Knetzger had probable cause to arrest Gomez.
Gomez next contends that
the trial court applied an incorrect burden of proof in finding his refusal to
submit to an evidentiary blood test unreasonable. He argues that the trial court erroneously applied a burden of
probable cause to its determination, and that the correct burden was by the
great weight and clear preponderance of the evidence. Gomez cites to the court's statement, “[T]he court further notes
that the burden of proof in a refusal case is only probable cause,” as proof
that the court utilized this standard in assessing all of the evidence.
The issues to be
addressed at a refusal hearing are limited to whether: (1) the officer had probable
cause to believe the individual was driving or operating a motor vehicle while
under the influence, (2) the officer read the individual the Informing the
Accused form, (3) the person refused to permit the test, and (4) the refusal
was due to a physical inability to submit to the test due to a disability or
disease unrelated to the use of alcohol.
See id. at 25-26, 381 N.W.2d at 304.
In order to place the
disputed statement in context, it is necessary to examine the trial court's
findings. At the refusal hearing, the
trial court addressed each of the mandated issues in turn. It discussed all of the evidence which led
to Knetzger's decision to arrest Gomez.
The court then made the contested burden of proof statement. Following the cited language, the court
reiterated its earlier conclusion that Knetzger was entitled to request the
blood test. At this point, the court
addressed the remaining three issues.
The court found that Gomez was read the Informing the Accused form and
that he indicated that he understood it as read. The court also found that Gomez was asked to submit to a blood
test at the hospital and that he refused.
It then noted that even though Gomez may have been “somewhat injured,”
those injuries did not form a proper basis for Gomez' refusal of the blood
test.
Our review of the record leads us to
conclude that the trial court applied the probable cause standard only in
assessing Knetzger's decision to arrest Gomez and require him to submit to a
blood test. The remaining issues were
questions of credibility, dependent upon whether Knetzger's account was more
credible than Gomez' account. The trial
court assessed the credibility of the witnesses, including Gomez' testimony
that he remembered only “[v]aguely” what occurred, and found that Knetzger's
testimony was more believable than the testimony offered by Gomez.
Because we conclude that
there was probable cause to request the evidentiary blood test and that the
trial court utilized the appropriate burden of proof when it found the refusal
was unreasonable, we affirm.
By the Court.—Order
affirmed.
This decision will not
be published. See Rule 809.23(1)(b)4, Stats.
[1] This fact was disputed at the refusal hearing when Gomez testified that he had only consumed a single drink before the accident and stated that was what he had told Knetzger.
[2] Knetzger testified that when Gomez recited the alphabet, the letters between “d” and “z” were so badly slurred that they were not understandable. Gomez skipped a number when he was asked to count backwards, and again his speech was slurred. He was unable to perform the heel-to-toe walking test because he could not maintain his balance, and he could not follow the directions for the finger-to-nose exercise.
[3] Knetzger testified that after he placed Gomez under arrest, he had Gomez transported to the hospital. The usual procedure would be to take an individual to the police station for a breath test. However, because Gomez was injured and he told Knetzger he had asthma, he was transported to the hospital for a blood test. Gomez claims that he was told at the scene of the accident that no tests would be administered.