COURT OF APPEALS DECISION DATED AND RELEASED April 30, 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. 95-2849-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JOSEPH V. HOTYNSKI,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Outagamie County:
JAMES T. BAYORGEON, Judge. Affirmed.
MYSE, J. Joseph V. Hotynski
appeals a judgment of conviction for operating a motor vehicle while under the
influence of an intoxicant contrary to § 346.63(1)(b), Stats., second offense. Hotynski contends that: (1) the trial court
lacked personal jurisdiction over him because of a false statement contained in
the probable cause section of the criminal complaint; (2) the officer lacked
probable cause to arrest him; (3) the trial court improperly construed his
refusal to perform field sobriety tests as consciousness of guilt when the
failure to take the tests resulted from Hotynski's repeated attempts to assert
his rights; and (4) his criminal prosecution for operating a motor vehicle
while under the influence of an intoxicant violates double jeopardy because the
administrative suspension of his driver's license constituted punishment for
double jeopardy purposes.
This court concludes
that: (1) there was sufficient information contained in the criminal complaint
after eliminating the incorrect assertion to give the trial court personal
jurisdiction over Hotynski; (2) the officer had probable cause to arrest
Hotynski; (3) Hotynski's refusal to perform field sobriety tests raised a
permitted inference of consciousness of guilt; and (4) the administrative
suspension of his driver's license does not constitute punishment for double
jeopardy purposes. Therefore, the
judgment of conviction is affirmed.
A Town of Grand Chute
police officer observed Hotynski's vehicle drift onto the shoulder of the road
and subsequently drift over the white dividing line of the highway. The officer activated his emergency lights
and Hotynski stopped on the straight portion of a concrete off-ramp leading
from the highway. The officer parked
his squad car approximately twenty feet behind Hotynski when Hotynski started
backing up, closing the distance between his vehicle and the squad car. The officer put his squad car in reverse to
avoid a collision and began honking his horn and flashing his lights. Gradually both vehicles came to a stop on
the shoulder of the highway and the officer approached Hotynski's vehicle. The officer observed that Hotynski's speech
was slow and thick-tongued and the odor of intoxicants emanated from the
vehicle. Hotynski had considerable
difficulty getting his driver's license out of his wallet, so the officer
looked at the license while still in the holder to identify him. When Hotynski attempted to step to the rear
of the vehicle at the officer's request, he was unsteady and leaned on the
vehicle for support.
As the officer requested
Hotynski to perform field sobriety tests, Hotynski handed a card to the officer
that Hotynski's attorney contends in an affidavit was an assertion of rights
card. The officer declined to read the
card and repeated his demand that Hotynski perform field sobriety tests. Hotynski again asked the officer to respond
to the card and the officer continued to insist that Hotynski perform field
sobriety tests. The officer ultimately
concluded that Hotynski was refusing to perform the tests and placed him under
arrest for operating a motor vehicle while under the influence of an
intoxicant.
A criminal complaint was
filed alleging among other things that Hotynski had failed to accurately
perform the field sobriety tests. The
State concedes that this allegation was incorrect. The trial court denied Hotynski's motion to dismiss based on the
false assertion in the complaint. The
court also denied Hotynski's motion to suppress evidence based on his
contention that the officer lacked probable cause to arrest. Hotynski was subsequently convicted of the
offense after a trial to the court.
Hotynski first contends
that the false allegation in the criminal complaint deprived the trial court of
personal jurisdiction. When the
defendant demonstrates a misstatement in the criminal complaint, the court is
obligated to examine the balance of the complaint to determine whether the
information contained therein, excluding the erroneous information, is
sufficient to establish probable cause.
State v. Mann, 123 Wis.2d 375, 393, 367 N.W.2d 209, 217
(1985). If probable cause is
established independently in the criminal complaint after discarding the false
allegation, the complaint is valid and there is no defect in the court's
jurisdiction to proceed. Id.
The issue whether the
allegations are sufficient to constitute probable cause presents a question of
law that this court resolves de novo. State
v. Babbitt, 188 Wis.2d 349, 356, 525 N.W.2d 102, 104 (Ct. App.
1994). Probable cause is that quantum
of evidence which would lead a reasonable officer to believe the defendant
probably committed the offense. Id. 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 (citing State v. Welsch, 108 Wis.2d 319, 329,
321 N.W.2d 245, 251 (1982)).
Excluding the false
allegation, the probable cause section of the criminal complaint asserts that
(1) the officer observed Hotynski drive his vehicle on the shoulder of the
road and over the lane divider; (2) after Hotynski pulled over, he backed
up his vehicle forcing the officer to back up his squad to avoid a collision;
(3) Hotynski had difficulty removing his driver's license from his wallet;
(4) a strong odor of intoxicants emitted from Hotynski's breath;
(5) Hotynski's speech was slurred and slowed; and (6) Hotynski fell
against the door of his vehicle when he was getting out.
This court concludes
that the totality of these allegations is sufficient to form probable cause for
the offense charged. The allegations of
erratic driving, the odor of alcohol, Hotynski's poor balance and slurred
speech are all indices of intoxication.
Those facts coupled with Hotynski's rather peculiar maneuver of backing
his vehicle toward the officer's squad car and the difficulty in extracting his
driver's license rise to a sufficient level to meet the probable cause
standard.
Hotynski next argues
that even if the complaint was sufficient, the officer lacked probable cause to
arrest him. Hotynski contends that to
establish probable cause the evidence must reflect a field sobriety test, an
admission from which consciousness of guilt may be inferred or other strong
evidence of intoxication lacking in this case.
This court disagrees. Probable
cause is an application of reasonable judgment to a specific set of facts. There is no specific fact that must be
present before probable cause can be found; it is merely the quantum of evidence
that would cause a reasonable person to believe the defendant probably
committed the offense. As discussed
before, the totality of the information possessed by the officer at the time he
placed Hotynski under arrest included his slowed and slurred speech, poor
balance, erratic driving, the odor of alcohol and the peculiar move of backing
up toward the squad car. In addition to
the foregoing facts, the officer testified regarding Hotynski's refusal to
perform field sobriety tests despite his instructions to do so. These circumstances are sufficient for a
reasonable person to conclude that Hotynski had probably committed the offense
of operating a motor vehicle while under the influence of an intoxicant.
Next, Hotynski contends
that the trial court erred when it regarded his alleged refusal to perform
field sobriety tests as evidence of consciousness of guilt under Babbitt. Hotynski argues that he was asserting his
rights and that under State v. Sayles, 124 Wis.2d 593, 370 N.W.2d
265 (1985), an assertion of a defendant's rights cannot be used as evidence
against him. This court rejects
Hotynski's argument.
In Sayles,
the issue before the court was whether the trial court erred during the jury
trial on the operating while under the influence charge when it refused to
admit evidence of his explanation for refusing to take a blood test. Sayles held that the evidence
was relevant because a jury could believe the defendant declined the test, not
because of consciousness of guilt, but because he thought he was asserting a
legal right. Id. at 597,
370 N.W.2d at 267. The State argued
that the evidence of the defendant's explanation that he wanted a lawyer before
submitting to a blood test would merely be additional evidence of consciousness
of guilt. Id. at 597 n.3,
370 N.W.2d at 267 n.3. The court
rejected the argument saying "it would be most inappropriate in any
proceeding to allow the request for a lawyer to be used as a separate basis for
an inference of guilt." Id.
This case is
distinguishable from Sayles in that the trial court allowed the
evidence of Hotynski's explanation for refusing to perform the field sobriety
tests. The evidence of the explanation
is allowed to rebut the inference of consciousness of guilt. Sayles did not hold that a defendant's
alleged belief that he was asserting his legal rights would always rebut the
inference. The trial court as trier of
fact could still conclude that Hotynski declined the test because of
consciousness of guilt, not because he thought he was asserting a legal
right.
Even assuming that the
handing of the card to the officer was a request to consult a lawyer, there is
no obligation upon the officer to allow a person to consult an attorney when
the person is asked to perform field sobriety tests. See Sayles, 124 Wis.2d at 597, 370 N.W.2d at
267. A defendant may not under the
guise of requesting an attorney or requesting an explanation of rights postpone
a proper request for the performance of field sobriety tests made by an
officer. It is not a basis to refuse to
comply with the properly issued order by a law enforcement officer. This court therefore concludes that the
trial court properly found Hotynski's noncompliance to be a refusal and that
the refusal can purport the permitted inference of consciousness of guilt.
Finally, Hotynski in an
effort to preserve the issue for further review contends that the
administrative suspension is punitive and therefore further punishment based
upon the conviction of operating while under the influence of an intoxicant is
precluded by the provisions of double jeopardy. As Hotynski concedes, this issue was directly addressed and
resolved in State v. McMaster, 198 Wis.2d 542, 543 N.W.2d 499
(Ct. App. 1995), which holds that an administrative suspension does not
constitute punishment for double jeopardy purposes. Accordingly, this court rejects the argument and affirms the
judgment of conviction.
By the Court.—Judgment
affirmed.
This opinion will not be
published. Rule 809.23(1)(b)4, Stats.