COURT OF APPEALS DECISION DATED AND RELEASED FEBRUARY 6, 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(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. 95-2506-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
TROY A. SANDERFOOT,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Langlade County:
JAMES P. JANSEN, Judge. Affirmed.
CANE, P.J. Troy Sanderfoot appeals his conviction for
operating a motor vehicle while under the influence of an intoxicant upon his
no contest plea. On appeal, Sanderfoot
contends the trial court erred by denying his motion to suppress the blood test
result because: (1) there was no probable cause to arrest him for OWI and
obtain a blood sample, and (2) he was deprived of the right to an alternative
test because of the information given to him by the arresting officer. This court rejects Sanderfoot's arguments
and affirms the conviction.
At the suppression
hearing, only the arresting officer, Deputy Mark Williamson of the Langlade
County Sheriff's Department, testified.
The essential facts appear undisputed.
Williamson arrived at the scene of a one-car accident at approximately
11:20 p.m. and observed Sanderfoot's pickup in the ditch. It appeared the pickup had rolled over
several times and there were empty beer cans around the vehicle.
After detecting the
smell of alcohol coming from inside the pickup, Williamson talked to
Sanderfoot, who at that time was in an ambulance. Sanderfoot explained that he had lost control of his pickup when
a deer ran in front of his vehicle.
While talking to Sanderfoot, the deputy noticed a strong odor of alcohol
coming from Sanderfoot whose eyes were glassy.
Williamson observed that some of the paramedics inside the ambulance
acknowledged that a strong smell of alcohol came from Sanderfoot.
Because Sanderfoot was required
to remain flat on his back in the ambulance, the deputy administered only the
alphabet test, Horizontal Gaze Nystagmus (HGN) test and preliminary breath
test. Sanderfoot passed the alphabet
test, but failed the HGN test.
Sanderfoot tested .18% on the portable breath test. Williamson testified that Sanderfoot was
very impaired from alcohol.
After the preliminary
breath test, the ambulance took Sanderfoot to the hospital where the deputy
issued Sanderfoot a citation for OWI, read him the informing the accused form
and asked him if he would consent to the taking of a blood sample for testing
his alcohol content. Sanderfoot
consented to giving a blood sample which was later found to be at .19%.
First, this court rejects
Sanderfoot's argument that the HGN test result should be rejected because the
deputy did not conduct the test in strict compliance with the procedures
outlined in the National Highway Traffic Safety Administration Manual. Although it could be reasonably argued that
Sanderfoot's injuries from the accident would explain the test result and his
glassy eyes, it is for the trial court to resolve conflicting inferences and
determine the weight and credibility of witnesses. See Fidelity & Deposit Co. v. First Nat'l Bank,
98 Wis.2d 474, 485, 297 N.W.2d 46, 51 (Ct. App. 1980). Here, the trial court was satisfied that the
HGN test was conducted sufficiently and gave it appropriate weight in its
determination of whether the test result was reliable for the purpose of
ascertaining probable cause. This court
will not disturb the trial court's findings.
The
next issue is whether the deputy had probable cause to arrest Sanderfoot and
request a blood sample. The probable
cause standard to arrest is defined in terms of facts and circumstances
sufficient to warrant a reasonable officer in believing that the defendant
committed or was committing a crime. State
v. Koch, 175 Wis.2d 684, 701, 499 N.W.2d 152, 161 (1993). Probable cause to arrest exists where the
totality of the circumstances within the arresting officer's knowledge at the
time of arrest would lead a reasonable officer to believe the defendant
probably committed a crime. Id.
This court is satisfied
that the arresting officer had ample evidence to believe Sanderfoot had
operated the pickup while under the influence of an intoxicant. This was a one-car accident where Sanderfoot
lost control of a vehicle; there were beer cans lying about the vehicle
emitting an odor of alcohol; a strong odor of alcohol was detected on
Sanderfoot whose eyes were glassy; Sanderfoot failed the HGN test; Sanderfoot
tested .18% on the preliminary breath test; and it was the deputy's opinion,
based on eighteen years of training and experience, that Sanderfoot was under
the influence of an intoxicant.
Next, Sanderfoot
contends that when a blood test is first conducted as in his case, he is not
immediately informed of the test results until some days later. Consequently, he reasons that because he
does not know the results of the primary test until long after the time for a
second test has expired, his due process rights to a second test are
violated. Thus he concludes the
informing the accused form with regard to an alternative test is inadequate
when the blood test is administered as the primary test.[1] Notably, Sanderfoot did not testify at the
suppression hearing regarding any confusion he may have had concerning his
right to have an alternative test.
In Village of
Oregon v. Bryant, 188 Wis.2d 680, 691, 524 N.W.2d 635, 639 (1994), the
supreme court held that the information given on the informing the accused form
properly warns the accused drivers of the consequences of submitting to the
requested test and also properly informs them of the opportunity and potential
advantage of submitting to an alternative test. As stated in Bryant, 188 Wis.2d at 687 n.5, 524
N.W.2d at 638 n.5:
[W]e
rely on [State v.] Piskula, [168 Wis.2d 135, 143,
483 N.W.2d 250, 253 (Ct. App. 1992)] for the proposition that the information
provided to the defendants, which is the same today as it was when Piskula
was decided, did not mislead defendants as to the merits of an alternative test
and therefore, that they were properly informed of the law.
In Bryant,
the supreme court concluded by rejecting the defendant's argument that there
was a violation of due process because the informing the accused form
misinformed him of the right to an alternative test. Id. at 692, 524 N.W.2d at 640. Similarly, Sanderfoot was not misinformed in
any way of his right to take an alternative test. He was told of the absolute right to have a second alternative
test, and this right did not depend upon which test was the primary test, nor should
it. There is no due process requirement
that an accused driver must first know the result of the primary test before
deciding whether to take an alternative second test.
This court concludes
that Sanderfoot was properly informed of the law and that his due process
rights were scrupulously honored.
Neither the statutory process nor the statutory protections and
admonitions misled Sanderfoot. He was
given all of the information mandated by due process and the statute. After the blood was drawn, he retained the
absolute right to have a second test; there was no appreciable risk to
Sanderfoot if he had asked for the second test. After the blood was drawn he still retained his driving
privileges; there was no requirement to advise him of the opportunity to
challenge the suspension of his privileges or the potential evidence that would
be considered relevant at such a hearing.
Consequently, this court concludes that Sanderfoot was not denied any
due process right to take a second test.
Additionally, the
identical issue was argued and rejected in a recently published opinion, City
of Waupaca v. Javorski, No. 95-1033 (Wis. Ct. App. Nov. 16, 1995,
ordered published Jan. 30, 1996). In Javorski,
we held that even if the officer's information to the accused driver is
misleading with respect to the license suspension provisions of the implied
consent law, it does not warrant suppression of an otherwise validly
consented-to blood test at the trial on the substantive OWI charge. Therefore, the trial court correctly
rejected Sanderfoot's motion to suppress the blood test result and the
conviction is affirmed.
By the Court.—Judgment
affirmed.
This opinion will not be
published. Rule 809.23(1)(b)4, Stats.
[1] The relevant part of the statutorily
prescribed "INFORMING THE ACCUSED" form provides:
1. You are deemed under Wisconsin's Implied
Consent Law to have consented to chemical testing of your breath, blood or
urine at this Law Enforcement Agency's expense. The purpose of testing is to determine the presence or quantity
of alcohol or other drugs in your blood or breath.
2. If you refuse to submit to any such tests,
your operating privilege will be revoked.
3. After submitting to chemical testing, you
may request the alternative test that this law enforcement agency is prepared
to administer at its expense or you may request a reasonable opportunity to
have any qualified person of your choice administer a chemical test at your
expense.
4. If you take one or more chemical tests and the result of any test indicates you have a prohibited alcohol concentration, your operating privilege will be administratively suspended in addition to other penalties which may be imposed.