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COURT OF APPEALS DECISION DATED AND RELEASED July 31, 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. 95-2947
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
COUNTY OF WAUKESHA,
Plaintiff-Respondent,
v.
ROBERT M. HALLENBECK,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Waukesha County:
MARIANNE E. BECKER, Judge. Affirmed.
SNYDER, J. Robert
M. Hallenbeck appeals from a judgment convicting him of operating a motor
vehicle with a prohibited blood alcohol concentration contrary to §
346.63(1)(b), Stats. Hallenbeck complains that a preliminary
breath test (PBT) was obtained without probable cause and that the wrongly
obtained PBT result tainted the subsequent field sobriety tests. He further argues that the trial court erred
by improperly limiting the cross-examination of the Intoxilyzer operator and
refusing to give a requested circumstantial evidence instruction. We resolve all of the issues against
Hallenbeck and affirm the judgment.
The facts are
undisputed. Waukesha County Deputy
Sheriffs Charles Gundrum and Nancy Neustaedtir-Heil were on a routine patrol
when they observed Hallenbeck's vehicle parked off to the side of the
road. Gundrum observed occupants in the
vehicle and that the headlights were on.
The parked vehicle appeared unusual because of the time of day (10:30
p.m.), the lack of other traffic and the “open field type area.” The deputies stopped to determine if there
was anything wrong.
Gundrum approached the
parked vehicle and asked the driver, Hallenbeck, why he was parked there. Although he did not respond immediately, he
then stated that he had to relieve himself and inquired if that was against the
law or disorderly conduct. During this
exchange, Gundrum noticed that Hallenbeck's speech was slurred, his eyes were
glassy and that there appeared to be the smell of marijuana coming from the
interior of the vehicle. After
instructing Hallenbeck to stay in the vehicle, Gundrum returned to the squad
car to request Neustaedtir-Heil's assistance.
Both deputies returned
to Hallenbeck's vehicle, where Hallenbeck responded to Neustaedtir-Heil's
questions by admitting that he had been drinking and that he had driven the
vehicle, which was still running, to the parked location. Neustaedtir-Heil instructed Hallenbeck to turn
off the vehicle and step to the rear of the car. At that time, Gundrum returned to the squad car with Hallenbeck's
license and ran a license check.
While Gundrum was
conducting the license check, Neustaedtir-Heil asked if Hallenbeck would
consent to a PBT and he agreed. Prior
to making this request, Neustaedtir-Heil had observed or knew the
following: the presence of the odor of
intoxicants, that Hallenbeck appeared to have been drinking, and Hallenbeck's
admissions that he had been drinking and had driven the vehicle to its parked
location. The PBT indicated a BAC test
result of 0.13% by weight.
After Neustaedtir-Heil
conducted the PBT, Gundrum returned from the record check procedure and
conducted field sobriety tests.[1] As a result of those tests, Hallenbeck was
placed under arrest for operating a motor vehicle while under the influence of
intoxicants.
A jury found Hallenbeck
guilty of operating a motor vehicle with a prohibited blood alcohol
concentration and this appeal followed.[2]
Hallenbeck first argues
that the PBT was administered without probable cause, as required by § 343.303,
Stats., which provides in part:
If a
law enforcement officer has probable cause to believe that the person is ... or
has violated [the drunk driving laws] the officer ... may request the
person to provide a sample of his or her breath for preliminary breath
screening test. ... The result of this
... test may be used by the ... officer for the purpose of deciding
whether or not the person shall be arrested for a violation of [the drunk
driving laws] .... [Emphasis added.]
The
County concedes that the deputy requested that Hallenbeck consent to the PBT
without having probable cause. Because
of that concession, we need only address the impact of the statutory violation
as presented in Hallenbeck's appeal.
This presents a question of law which we decide de novo. See First Nat'l Leasing Corp.
v. Madison, 81 Wis.2d 205, 208, 260 N.W.2d 251, 253 (1977).
Hallenbeck first
contends that the taking of his breath sample by the violated PBT process was
an unconstitutional search and seizure.
The taking of a breath sample is a search and seizure under the
provisions of the United States and Wisconsin Constitutions. Milwaukee County v. Proegler,
95 Wis.2d 614, 623, 291 N.W.2d 608, 612 (Ct. App. 1980). Whether a party has standing to challenge
the constitutionality of a search and seizure based upon a given set of facts
is a question of law that we review without deference to the trial court
determination. State v. Fillyaw,
104 Wis.2d 700, 711, 312 N.W.2d 795, 801 (1981), cert. denied, 455 U.S.
1026 (1982). The remedy is suppression
of the illegally obtained evidence. Wong
Sun v. United States, 371 U.S. 471, 484 (1963). Hallenbeck then reasons that because the PBT
was obtained without probable cause, all subsequent evidence should be
suppressed. We disagree.
The PBT is one of
several elements which goes to the existence of probable cause. Dane County v. Sharpee, 154
Wis.2d 515, 520, 453 N.W.2d 508, 511 (Ct. App. 1990). It is only a part of the totality of circumstances upon which an
officer's determination of probable cause may rest. Id. The
trial court found that probable cause to arrest existed absent the results of
the PBT. We note the following evidence
to support the arrest for operating while intoxicated: the car was parked in an unusual location
with its headlights on; Hallenbeck admitted to having consumed “a few”
alcoholic beverages and to driving the vehicle to its present location; a
physical appearance indicative of intoxication—glassy eyes, slurred speech and
an odor of intoxicants; and his failing three of the four field sobriety tests
administered. Our independent review of
the record convinces us that under the totality of the circumstances test,
there was sufficient evidence to support probable cause for the arrest apart
from the PBT results.[3]
Hallenbeck next argues
that the illegally obtained PBT results “tainted” the officers' observations of
the subsequently conducted field sobriety tests. As a consequence, the field sobriety tests became too unreliable
to establish probable cause.
Courts look to the
totality of the facts and circumstances faced by an officer at the time of the
arrest. Sharpee, 154
Wis.2d at 518, 453 N.W.2d at 510. The
available facts facing the officer need only be “sufficient to lead a reasonable
officer to believe guilt is more than a possibility.” Id. (quoted source omitted).
At the probable cause
hearing, Gundrum testified in detail as to Hallenbeck's performance on the
field sobriety tests, including the reasons Hallenbeck failed three of the four
tests. He also testified that before
administering any tests, he had observed other indications that Hallenbeck had
been drinking: his eyes were glassy and
his speech was slurred. Coupled with
this was Hallenbeck's admission that he had been drinking. There are no facts in the record to support
the position that Gundrum's decision to arrest Hallenbeck was based solely or
inappropriately on the results of the PBT, rather than on the totality of the circumstances
facing the officer. We reject
Hallenbeck's contention to the contrary.
Hallenbeck next contends
that his defense was improperly hampered when the trial court sustained the
County's objections to his attempt to cross-examine the Intoxilyzer
operator. The defense sought to elicit
testimony regarding the “units of measure in which the Intoxilyzer result was
reported with regard to what they represent in common life.”
Whether a witness
qualifies as an expert is a matter resting within the sound discretion of the
trial court, and absent a misuse of that discretion, the trial court's ruling
will stand. State v. Robinson,
146 Wis.2d 315, 332, 431 N.W.2d 165, 171 (1988). Furthermore, expert witnesses may only testify within the areas
in which they are qualified. Brain
v. Mann, 129 Wis.2d 447, 454, 385 N.W.2d 227, 230 (Ct. App. 1986).
The trial court
sustained the prosecution's objections to defense counsel's attempt to pursue
this line of questioning. Although an
Intoxilyzer operator is an expert in running the machine and judging whether it
is functioning as it should be, he or she is not qualified to testify as an
expert on the internal functioning of the machine. It is important to note that this is not an issue of whether the
court would have permitted the testimony, but rather whether this witness was
qualified to testify as to this information.
While we conclude that the defense was properly precluded from eliciting
this information from this witness, the sought-after information may have been
admissible from a properly qualified expert.
Hallenbeck's final issue
on appeal arises from his contention that the trial court erred when it failed
to give the jury a requested instruction on circumstantial evidence. The trial court must exercise discretion in
using jury instructions to fully and fairly assist the jury in making a
reasonable analysis of the evidence. See
State v. Dix, 86 Wis.2d
474, 486, 273 N.W.2d 250, 256, cert. denied, 444 U.S. 898 (1979). The trial court has great discretion in the
choice of language and emphasis in framing jury instructions. Id.
We conclude that the
trial court exercised its discretion in declining to give the circumstantial
evidence instruction. The trial court
reasoned:
I'm
satisfied that juries in these cases are able to reach a decision without an
additional instruction on circumstantial evidence. ... This Court does believe that jurors, juries
are so over instructed that it becomes difficult for them to move, and
specially [sic] on this particular charge I'm satisfied they don't need that and
it is not necessarily of assistance to them.
I simply decline to give it as unnecessary.
The
trial court properly exercised its discretion and found that the requested
instruction would not assist the jury in its analysis of the evidence.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[1] Hallenbeck's performance on the field sobriety tests was as follows: the alphabet test, acceptable but speech slurred; the one-leg stand test, failed; the finger-to-nose test, failed; and the heel-to-toe test, sidestepped on the fourth step to keep his balance.