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COURT OF
APPEALS DECISION DATED AND
RELEASED June
20, 1996 |
NOTICE |
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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. 95-2650
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
RENEE
A. FREDEL,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Dane County: ROBERT DECHAMBEAU, Judge.
Affirmed.
VERGERONT,
J.[1] Renee Fredel appeals from a judgment of
conviction for operating a motor vehicle while under the influence of an
intoxicant and with a prohibited blood alcohol concentration, contrary to
§ 346.63(1)(a) and (b), Stats. She contends that there was no probable
cause to arrest her and that her right to due process was violated because she
did not timely receive certain information about the benefits of having a
second chemical test performed as required by the implied consent law,
§ 343.305, Stats. We reject both contentions and affirm.
At
the hearing on Fredel's motion to suppress the fruits of an unlawful arrest,
Officer Robert Hale, Fredel, a chemist at the State Laboratory of Hygiene and a
witness to the incident testified. Hale
testified that on August 22, 1993, at approximately 12:50 a.m., he was in a
University of Wisconsin Police Department squad car when he observed Fredel
driving her car with two males sitting on the trunk. Once the two males saw Hale following them, they jumped off the
car and fled. Hale activated his
emergency lights and stopped Fredel. Fredel identified herself and showed a valid driver's
license. Hale noticed an odor of
alcohol coming from Fredel. He asked
Fredel if she had been drinking and Fredel responded that she had had a couple
of beers at a party. Hale asked her to
take five field sobriety tests and she did.
After the tests, Hale placed Fredel under arrest for operating a motor
vehicle while intoxicated. He took
Fredel to the University of Wisconsin Hospital where she consented to a
chemical test of her blood. The result
of the test showed a blood alcohol concentration of .148%.
Fredel's
probable cause challenge centers on her contention that her performance on the
field sobriety tests did not indicate intoxication and that the other evidence
presented was insufficient to establish probable cause.
In
reviewing the denial of a suppression motion, we uphold the trial court's
findings of fact unless they are clearly erroneous. See State v. Jackson, 147 Wis.2d 824, 829,
434 N.W.2d 386, 388 (1989). Whether the
facts as found by the trial court constitute probable cause is a question of
law, which we review de novo. Village
of Elkhart Lake v. Borzyskowski, 123 Wis.2d 185, 189, 366 N.W.2d 506,
508 (Ct. App. 1985). In State v.
Riddle, 192 Wis.2d 470, 531 N.W.2d 408 (Ct. App. 1995), we stated:
Probable
cause exists where the totality of the circumstances within the arresting
officer's knowledge at the time of the arrest would lead a reasonable police
officer to believe that the defendant probably committed a crime.
While the circumstances
within the arresting officer's knowledge need not be sufficient to make the
defendant's guilt more probable than not, the defendant's guilt must be more
than a mere possibility for the arrest to be constitutional. Further, in determining whether probable
cause existed, we do not look to the officer's subjective beliefs, but apply an
objective standard based upon the circumstances as they were at the time of the
arrest.
Id. at 476, 531 N.W.2d at 410 (citation omitted; quotation omitted).
In
State v. Babbitt, 188 Wis.2d 349, 525 N.W.2d 102 (Ct. App. 1994),
we stated:
Probable cause does not require "proof beyond a
reasonable doubt or even that guilt is more likely than not."
Id. at 357, 525 N.W.2d at 104 (citation omitted).
Before
administering the field sobriety tests, Hale made these observations. He noticed that Fredel's eyes were slightly
glassy, although he did not recall if they were red or not. Besides the odor of alcohol coming from the
vehicle, he noticed an odor of alcohol coming from Fredel's breath. Fredel admitted to having had "a couple
of beers" at a party. She had been
driving with two men sitting on the trunk of her vehicle. Since they were blocking the rear window of
her vehicle, it was reasonable to infer that Fredel knew or should have known
they were there. It was also reasonable
to infer, as the trial court did, that driving with two people sitting on the
trunk of the vehicle shows impaired judgment on the part of the driver.
With
respect to the field sobriety tests, the court found that Fredel was unable to
stand still during four of the five tests; she swayed back and forth to
maintain her balance. The court found
that Fredel could not complete the one-legged stand test; instead of lifting
her leg six inches off the ground for thirty seconds, as directed, she could
only do so for twenty-four seconds. The
court found that her performance on these two tests indicated a lack of
coordination. The court also found that
Fredel was confused by Hale's directions on more than one occasion. The court found, as one example of
confusion, that Fredel touched the middle of her nose with the tip of her
finger rather than touching the tip of her nose with the middle of her finger.
We
reject Fredel's argument that because Hale did not testify regarding what
constituted "passing" and "failing" each of the tests, his
observations about her performance of the tests may not be considered by the
trial court. Hale testified that he had
three years of experience as a military police officer and approximately eight
months of experience with the University of Wisconsin Police Department. He had been instructed in conducting field
sobriety tests by a Wisconsin state trooper at a police training session in
Waukesha. He also received some
training in these tests through the military police and from his field training
officers at the University of Wisconsin Police Department. Hale testified that while most officers use
three field sobriety tests, he uses five.
He has also had the opportunity to compare the results of his field
sobriety testing with the chemical test results on the same subjects.
Hale
testified that he uses the five tests to evaluate four overall factors: ability to understand the instructions,
balance, attitude and cooperation. Hale
made it clear that Fredel's attitude and cooperation were good. However, he testified that Fredel seemed
confused by the test instructions; he had to repeatedly ask if she had
questions or if she understood him.
Hale rated Fredel's balance as poor, describing her swaying and other
movements that indicated a lack of balance during the pertinent tests. Fredel did successfully complete the
alphabet test.
Hale's
testimony established a sufficient foundation for his observations that Fredel
had poor balance and was confused by his instructions while performing the
tests. The trial court could properly
rely on these observations in making its findings regarding Fredel's
performance on the field sobriety tests.
Fredel
argues that there are other plausible explanations for her swaying and apparent
confusion besides being under the influence of an intoxicant. She also argues that there are inferences
other than that of impaired judgment to be drawn from the fact that two males
were sitting on the trunk of her car.
Even if this is true, when faced with competing reasonable inferences,
an officer may rely on the one that justifies an arrest. See State v. Tompkins,
144 Wis.2d 116, 125, 423 N.W.2d 823, 827 (1988).
We
conclude the trial court's findings are based on the record and are not clearly
erroneous. Based on those findings and
the undisputed facts, we conclude that there was probable cause to believe
Fredel was driving while under the influence of an intoxicant.
Fredel
also contends that her right to due process was violated because she was not
timely informed of the benefits of taking a second chemical test. This lack of timely notice discouraged her
from taking a second test which, Fredel contends, is not just a statutory right
under the implied consent law, § 343.305, Stats., but is also a constitutional right.
Before
the blood test was administered, Hale read Fredel the standard Informing The
Accused form, which states in pertinent part that the accused may request an
alternative test that the law enforcement agency is prepared to administer at
its expense or may request a reasonable opportunity to have a qualified person
of the accused's choice administer a chemical test at the accused's expense. This form also states that if the accused
takes one or more tests and "the result of any test" (emphasis
added) indicates the accused has a prohibited alcohol concentration, operating
privileges will be administratively suspended in addition to other penalties
which may be imposed.
Fredel
did not ask for an alternative test.
The blood sample taken from her on the morning of August 22 was not
tested until the following day. The
results were reported on August 24. The
arresting officer mailed the Notice of Intent to Suspend Operating Privilege to
Fredel on August 27. This notice
advises of the right to an administrative hearing to contest the suspension and
of the issues at the hearing--one of which is whether "each of the
test results indicates the person had a prohibited alcohol concentration." (Emphasis added.)
Fredel's
argument is that until she received the Notice of Intent to Suspend Operating
Privilege, she was not informed that a contradictory result on a second test
could aid her in seeking recision of the suspension based on the first
test. When she received the notice, it
was too late to take a second test.
In
City of Waupaca v. Javorski, 198 Wis.2d 563, 543 N.W.2d 507 (Ct.
App. 1995), we considered the same argument on substantially similar
facts. We held that there was no
violation of the right to due process and that Javorski was not entitled to
suppression of the results of his blood test.
Apparently recognizing that Javorski is dispositive on
this issue, Fredel does not request suppression of her blood test results, but
asks instead for a new trial at which the favorable statutory presumptions
regarding the admissibility of blood test results do not apply.[2] Fredel cites State v. Zielke,
137 Wis.2d 39, 403 N.W.2d 427 (1987), and County of Eau Claire v. Resler,
151 Wis.2d 645, 446 N.W.2d 72 (Ct. App. 1989), in support of this argument.
The
court in Zielke held that failure to comply with the procedures
of the implied consent law did not render chemical tests inadmissible if they
were otherwise constitutionally obtained.
Zielke, 137 Wis.2d at 41, 403 N.W.2d at 428. The issue was whether the first chemical
test could be taken incident to an arrest without complying with any of the
statutory procedures, such as reading the Informing The Accused form. Id. at 43-44, 403 N.W.2d at
428-29. In suggesting that there were
still incentives for law enforcement officials to comply with the
statutorily-implied consent law procedures, the court stated:
As previously explained, when law enforcement officers
fail to comply with the implied consent statute the driver's license cannot be
revoked for refusing to submit to chemical tests. Furthermore, if the procedures of sec. 343.305, Stats., are not followed the State
cannot rely on the favorable statutory presumptions concerning the
admissibility of chemical-test results set forth in sec. 343.305(7). In addition, the fact of refusal cannot be
used in a subsequent criminal prosecution for drunk driving as evidence of the
driver's consciousness of guilt.
Zielke, 137 Wis.2d at 54, 403 N.W.2d at 433.
In
Resler, we repeated these consequences for failing to follow
statutory procedures, relying on Zielke. Resler, 151 Wis.2d at 652, 446
N.W.2d at 74. Resler argued that
because she was not informed of the penalties resulting from a conviction for
driving with a prohibited blood alcohol concentration as required by
§ 343.305(4), Stats., the
breath test she consented to should have been suppressed. We rejected that argument, but did not
address or decide whether any other remedy was appropriate.
Neither
Zielke nor Resler concerned a second test. Neither supports the proposition that
because of the timing of certain information given about the alternative test,
the results of the first test should be suppressed. Fredel does not point to any statutory procedure that was not
complied with concerning the blood test.
She does not argue that the potential advantage of a second test should
have been made known to her before she took the blood test and we can
see no reason why her consent to that first test would have depended on having
information about the potential benefits of a second test. We conclude that the timing of the Notice of
Intent to Suspend Operating Privilege does not result in the loss of favorable
statutory presumptions or evidentiary effect as to the blood test. The trial court did not err in denying
Fredel's motion to exclude the test results.
By
the Court.—Judgment affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.
[2] Section 343.305(5)(d), Stats., provides in part:
At the trial of any
civil or criminal proceeding arising out of the acts committed by a person
alleged to have been driving or operating a motor vehicle while under the
influence of an intoxicant ... the results of a test administered in accordance
with this section are admissible on the issue of whether the person was under
the influence of an intoxicant ... or any issue relating to the person's
alcohol concentration. Test results
shall be given the effect required under s. 885.235.
Section
885.235(1), Stats., gives certain
evidentiary effect to the chemical analysis of samples taken within three hours
of the event without the necessity for expert testimony. Because it is unnecessary to the disposition
of this appeal, we do not decide whether the blood test would have been
admissible had §§ 343.305(5)(d) and 885.235, Stats., not applied.