COURT OF
APPEALS DECISION DATED AND
RELEASED April
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. 95-2633-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
EUGENE
M. BRABENDER,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Dane County: MARK A. FRANKEL, Judge. Affirmed.
VERGERONT,
J.[1] Eugene
Brabender appeals from a judgment of conviction for operating a motor vehicle
with a prohibited blood alcohol concentration, in violation of
§ 346.63(1)(b), Stats. He contends that the trial court erred in
denying his motion to suppress the results of a blood test because there was no
probable cause to arrest him and because the arresting officer did not provide
him with the statutorily-required information before the blood test was
administered. We reject each of these
arguments and affirm.
BACKGROUND
Officer
Douglas Blaeske of the Mazomanie Police Department testified at the bench
trial. He responded to a call
concerning a deer/car collision which occurred on Highway 14 in Dane
County. On his arrival he saw two
vehicles, a Cadillac and a pick-up truck, and two males. The driver of the truck, Norman Meland, had
struck the deer. Brabender had driven
to the scene in the Cadillac to help Meland, his stepson, with the deer.
While
Blaeske was obtaining information from Meland, he observed Brabender swaying
slightly, while smoking a cigarette.
Blaeske smelled an odor of intoxicants coming from Brabender. In response to Blaeske's question, Brabender
said that he would take the deer. Since
Blaeske needed Brabender's license to issue a deer tag, he asked Brabender for
his driver's license. Brabender leaned
against one of the vehicles as he removed his wallet and looked in it. Blaeske shined his flashlight on Brabender's
wallet and could see the license in the centerfold of the wallet right
away. Brabender, however, first removed
papers from the side fold and put them back before he took his license from the
centerfold.
After
Blaeske completed the deer tag, he attempted to hand it to Brabender, but the
tag fell to the ground. Brabender
reached for the permit, but Blaeske is not sure if Brabender touched it before
it fell. Brabender did not pick up the
permit; Meland picked it up for him.
While Meland did this, Brabender was leaning against one of the
vehicles.
Blaeske
asked Brabender if he would be willing to perform field sobriety tests. Brabender became very angry, said he was
being harassed by the Cross Plains, Black Earth and Mazomanie Police
Departments and refused to take the tests.
In response to Blaeske's questioning, Brabender swore that he had had
only three beers that evening.
Blaeske's
training includes recognizing the signs of persons under the influence of an
intoxicant. He believed Brabender was
operating under the influence because Brabender swore he had had only three
beers; was swaying back and forth; smelled of intoxicants; could not find his
license although Blaeske could clearly see it; was leaning on one of the
vehicles; and refused to do the field sobriety tests. According to Blaeske, most people are cooperative and willing to
do field sobriety tests if they are not under the influence. Also, Brabender was smoking cigarettes the
entire twenty to twenty-five minutes at the scene and Blaeske thought Brabender
might be trying to cover up his breath.
After forming the opinion that Brabender was operating under the
influence, Blaeske arrested him.
Blaeske then provided Brabender with an "Informing the
Accused" form before a blood test was administered. The form was outdated. The State stipulated to the form that should
have been used.
The
trial court determined that there was probable cause to arrest Brabender for
operating a motor vehicle under the influence of an intoxicant. With respect to the "Informing the
Accused" form given to Brabender, the court concluded that the Mazomanie
Police Department failed to comply with the informed consent statute,
§ 343.305, Stats.[2] However, it denied Brabender's motion to
suppress the blood test results, concluding that the proper remedy for the
statutory violation was that the test results would not automatically be
admissible, as they would be if there had been compliance with the
statute.
PROBABLE CAUSE
Brabender argues that
given the undisputed facts, no reasonable police officer would believe that he
was operating a motor vehicle while under the influence of an intoxicant. We disagree and conclude that the trial
court correctly found that there was probable cause.
Whether
undisputed facts constitute probable cause is a question of law that we review
de novo. State v. Babbitt,
188 Wis.2d 349, 356, 525 N.W.2d 102, 104 (Ct. App. 1994). In determining whether probable cause
exists, we look to the totality of the circumstances. Id. The
inquiry is whether the arresting officer's knowledge at the time of arrest
would lead a reasonable police officer to believe that the defendant was
operating a motor vehicle while under the influence of an intoxicant. Id. The test is one of probabilities, meaning that the facts and
circumstances within the officer's knowledge need only be sufficient to lead a
reasonable officer to believe that guilt is more than a possibility. Dane County v. Sharpee, 154
Wis.2d 515, 518, 453 N.W.2d 508, 510 (Ct. App. 1990).
A
defendant's refusal to submit to field sobriety tests may be used as evidence
of probable cause to arrest. Babbitt,
188 Wis.2d at 363, 525 N.W.2d at 107.
Brabender's refusal to submit to the tests, his hostile response to that
request, the odor of alcohol in an outdoor environment despite constant
smoking, his admission that he had had three beers, his swaying and leaning
against one of the vehicles, his inability to find his driver's license when
the officer readily saw it, and the fact that Brabender did not pick up the
deer tag when it fell after Blaeske attempted to hand it to him are sufficient,
taken together, to establish probable cause.
Brabender
offers alternative explanations for certain of Brabender's behavior and
actions. But the existence of plausible
innocent explanations does not mean that it is unreasonable, based on the totality
of the circumstances, to believe that guilt is more than a mere
possibility. Brabender also points to
behaviors he did not exhibit. He notes,
for example, that Blaeske testified that he did not stumble and that Blaeske
could not remember whether he had bloodshot or glassy eyes. But there are no required facts for a
determination that probable cause exists to believe that a person is driving
while under the influence of an intoxicant.
The totality of circumstances in this case are sufficient to support
that determination.
IMPLIED
CONSENT LAW
Brabender
argues that the "Informing the Accused" form that Blaeske provided
him violated the implied consent statute and, therefore, the blood test results
should have been suppressed. He cites
these three deficiencies in the form:
(1) it states that the prohibited blood alcohol concentration is
.10, but, since Brabender was being charged with a third offense, the standard
is .08; (2) although the form advised that, after submitting to the test
at the request of a law enforcement officer, the accused may request the
alternative test that the law enforcement agency is prepared to administer, it
did not advise that the alternative test would be at the agency's expense; and
(3) it did not advise that if the accused has three offenses within a
ten-year period after January 1, 1988, a motor vehicle owned by the accused may
be equipped with an ignition interlock device, immobilized, or seized and
forfeited.
The
State implicitly concedes that the form provided to Brabender violated the
statute, but responds that Brabender is not entitled to suppression of the test
results.[3] Because of the State's concession, we assume
the form violated the statute on the three points and consider only whether
Brabender is entitled to suppression of the blood test results as a result of
those violations. We conclude he is
not.
We
consider State v. Zielke, 137 Wis.2d 39, 403 N.W.2d 427 (1987),
to be dispositive. Zielke was arrested
for driving under the influence of an intoxicant. A blood sample was taken for a blood test, but the officer did
not advise Zielke of his right to an alternative test as required by the
predecessor to § 343.305(4)(d), Stats.[4] Although the seizure of the blood was
constitutional, the trial court and court of appeals suppressed the test
results because the statutory procedure was not followed. The supreme court reversed. It concluded:
However, even
though failure to advise the defendant as provided by the implied consent law
affects the State's position in a civil refusal proceeding and results in the
loss of certain evidentiary benefits, e.g., automatic admissibility of results
and use of the fact of refusal, nothing in the statute or its history permits
the conclusion that failure to comply with sec. 343.305(3)(a), Stats. [the predecessor to
§ 343.305(4)], prevents the admissibility of legally obtained chemical
test evidence in the separate and distinct criminal prosecution for offenses
involving intoxicated use of a vehicle.
Id. at 51, 403 N.W.2d at 432. See
also City of Waupaca v. Javorski, 198 Wis.2d 563, 574-75, 543
N.W.2d 507, 511-12 (Ct. App. 1995) (failure to properly advise of the possible
benefits of a second test, as required by statute, does not warrant suppression
of first test).
Brabender
argues that State v. McCrossen, 129 Wis.2d 277, 385 N.W.2d 161, cert.
denied, 479 U.S. 841 (1986), not Zielke, controls this
case. Following her arrest, McCrossen
was given a breath test. She then
requested a second test, either a blood or urine test. When she was informed that she would have to
pay for such a test, she agreed. She
was not told that there was an alternative test that the department was
prepared to administer at its expense, nor that she could be released to get a
second test at her own expense, both statutory requirements. The police never administered the requested
second test. The supreme court approved
the trial court's suppression of the blood test results as a sanction for
violating McCrossen's statutory rights to an alternative test. McCrossen, 129 Wis.2d at 297,
385 N.W.2d at 170. However, it held that
due process did not require dismissal of the charge. Id. at 296-97, 385 N.W.2d at 169-70.
The
Zielke court acknowledged McCrossen and stated
that, on the facts of McCrossen, suppression of the test results
was an appropriate, although not a required, remedy. Zielke, 137 Wis.2d at 55-56, 403 N.W.2d at
434. The Zielke court
concluded that the facts before it did not support the act of the trial court's
discretion in suppressing the test results.
Id. The facts
supporting suppression of the test results in McCrossen,
according to the Zielke court, were that the defendant requested
an alternative test and was willing to pay for it; that the department did not
administer an alternative test in spite of the request; and that the department
did not release her so that she could obtain a second test on her own. Zielke, 137 Wis.2d at 55-56,
403 N.W.2d at 434. The remedy of the
sanction of suppression of the first test in such circumstances is required
neither by statute, id., nor the constitution, McCrossen,
129 Wis.2d at 297, 385 N.W.2d at 170.
It is based on the reasoning that the department's failure to provide an
alternative test when requested, as required by statute, is analogous to the
failure to make available statutorily-mandated evidence, which interferes with
the accused's right to discover material evidence to which he or she is
entitled. McCrossen, 129
Wis.2d at 297, 385 N.W.2d at 170; State v. Renard, 123 Wis.2d
458, 461, 367 N.W.2d 237, 238-39 (Ct. App. 1985).
Brabender
was informed that he could request an alternative test that the agency was
prepared to administer. He did not
request an alternative test or ask any questions about the alternative
test. Failure to inform him that the
alternative test would be at the department's expense is not the type of
failure to make available statutorily-mandated evidence that made suppression
of the first test appropriate in McCrossen. The other two deficiencies in the form
provided Brabender have nothing to do with his statutory right to an alternative
test.
Brabender
also argues that the violation of the implied consent law in this situation
violated due process. There is no merit
to this contention. The right to a
second test, when a reliable first test is performed, is not required by due
process. McCrossen, 129
Wis.2d at 297, 385 N.W.2d at 170.
Brabender relies on State v. Sutton, 177 Wis.2d 709, 503
N.W.2d 326 (Ct. App. 1993), but that case does not support this argument. Sutton concerned a challenge
to the revocation of operating privileges following an administrative hearing
provided for in § 343.305(9) and (10), Stats.,
for refusal to take the test requested by the officer. Sutton claimed the revocation was invalid
because the officer had failed to substantially comply with § 343.305(4)
in that he inaccurately stated the potential penalties for refusal. We held that there was substantial
compliance because the officer had overstated, rather than understated, the
penalty and Sutton was not prejudiced. Sutton,
177 Wis.2d at 715, 503 N.W.2d at 328. Sutton
has no bearing on Brabender's due process argument.
Brabender's
argument that his license may not be revoked because of the statutory
violations is also without merit. The
cases he relies on concern the administrative revocation process under the
implied consent statute for refusal to take the test requested by the
officer. See, e.g., State
v. Wilke, 152 Wis.2d 243, 448 N.W.2d 13 (Ct. App. 1989). Whether or not the statutory violations in
the form provided to Brabender would prevent revocation of his license in an
administrative proceeding under § 343.305(10), Stats., they do not prevent revocation upon a conviction
under § 346.63(1)(b), Stats.
By
the Court.—Judgment affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.
[2] Any person operating a motor vehicle is
deemed to have given consent to one or more tests of his or her breath, blood
or urine for the purpose of determining the presence or quantity in his or her
breath or blood of alcohol or controlled substances when requested by a law
enforcement officer. Section
343.305(2), Stats. The manner of request, the nature of the
tests, including alternative tests, and the information that must be given the
accused are prescribed in § 343.305(3), (4), (5) and (6). If the person submits to the tests in
accordance with the statute and the results indicate a prohibited alcohol
concentration, the person's license is suspended, subject to administrative
review. Section 343.305(7)(a) and
(8). A refusal to take the test
described by statute may result in license revocation. Section 343.305(9) and (10).
[3] The State in its brief states that "[i]t
is undisputed that Officer Blaeske read an outdated Informing the Accused Form
to Brabender," and does not dispute that the outdated form violated the
implied consent statute in the three ways Brabender describes.
[4] Section 343.305(2), Stats., requires law enforcement to provide at its expense at
least two of three approved tests to determine the presence of alcohol in the
breath, blood or urine of a suspected intoxicated driver. State v. Stary, 187 Wis.2d
266, 269, 522 N.W.2d 32, 34 (Ct. App. 1994).
Law enforcement may designate one of those two as its primary test. Id. Once a person consents to the primary test, the person is
permitted, at his or her request, the alternate test the agency chooses, at the
agency's expense, or a reasonable opportunity to a test of the person's choice
at the person's expense. Id.
at 270, 522 N.W.2d at 34.