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COURT OF
APPEALS DECISION DATED AND
RELEASED July
18, 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
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This opinion is subject to further editing. If published, the official version will appear in the bound
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No. 95-3097
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
VILLAGE
OF WESTFIELD,
Plaintiff-Respondent,
v.
THOMAS
A. MOORE,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Marquette County: RICHARD O. WRIGHT, Judge. Affirmed.
SUNDBY,
J. Defendant-Appellant Thomas Moore appeals from a judgment
entered November 1, 1995, on a jury verdict finding him guilty of operating a
motor vehicle while under the influence of an intoxicant and operating with a
prohibited alcohol concentration.
Moore's appeal presents for our[1]
review pretrial motions denied by the trial court September 28, 1995, to
suppress any evidence of Moore's intoxication because the police lacked
probable cause to arrest him, and to bar this prosecution under the Double
Jeopardy Clause because Moore's operating privilege had been administratively
revoked. Moore concedes that his double
jeopardy claim fails under State v. McMaster, 198 Wis.2d 542, 543
N.W.2d 499 (Ct. App. 1995), review granted, 546 N.W.2d 468 (Wis. Mar.
12, 1996). However, he presents this
issue to preserve it for further review.
Moore also presents his trial motion to exclude evidence of the result
of the Intoxilyzer test of his breath.
We affirm the judgment.
BACKGROUND
On
May 28, 1995, Officer Scott Johnston, a police officer for the Village of
Westfield, stopped the vehicle operated by Moore because he had failed to dim
his headlights. Officer Johnston
testified that when he questioned Moore, he observed that Moore's eyes were
bloodshot, there was a strong odor of intoxicants coming from Moore's vehicle,
and the vehicle contained an open can of beer, which Moore stated belonged to
the passenger. Moore admitted he had
recently consumed six to seven cans of beer but later admitted that he had had
twelve beers. After Officer Johnston
required Moore to perform several field sobriety tests, Johnston arrested Moore
for operating a motor vehicle while under the influence of an intoxicant and
with a prohibited alcohol concentration.
At
trial, Officer Johnston testified as to his observations of Moore. Also, Steven Kemnitz testified that the
Intoxilyzer test he conducted showed that Moore's breath sample contained .18
grams of alcohol in 210 liters of his breath.
Moore moved to exclude the test result and for judgment on the
prohibited alcohol concentration charge because the Village had failed to
establish that the Intoxilyzer was properly operated by a qualified
individual. The trial court denied
Moore's motion.
ISSUES
Moore
presents the following issues:
(1) Can
the Horizontal Gaze Nystagmus (HGN) test alone, in the face of good performance
on all other field tests, provide probable cause to search a subject's breath
with a Preliminary Breath Test (PBT)?
We conclude that the record shows that Officer Johnston did not find
probable cause solely as the result of the HGN test and that the totality of
the circumstances established probable cause to search Moore's breath.
(2)
Should the trial court have excluded the results of the Intoxilyzer test
because the Village failed to show that the operator was qualified to conduct
such tests? Admission of the
Intoxilyzer test result, if error, was harmless because, without the result of
that test, the evidence was sufficient to sustain the jury's verdict.
(3) Does Moore's conviction for operating while
under the influence violate his constitutional right to be free from double
jeopardy? Moore concedes that we are
bound by State v. McMaster.
Therefore, we cannot find that Moore's conviction for operating while
under the influence violated his constitutional right not to be twice placed in
jeopardy.
I.
THE
HORIZONTAL GAZE NYSTAGMUS TEST
We
must consider the facts and circumstances faced by the arresting officer to
determine whether he or she reasonably believed that the defendant committed an
offense. County of Dane v.
Sharpee, 154 Wis.2d 515, 518, 453 N.W.2d 508, 510 (Ct. App. 1990). Taking a breath sample is a search and
seizure, which may be conducted without a warrant only if a police officer has
probable cause to arrest. County
of Milwaukee v. Proegler, 95 Wis.2d 614, 623, 291 N.W.2d 608, 612 (Ct.
App. 1980). Moore contends that the
videotape of the field sobriety tests shows that he was not impaired. Moore argues, therefore, that the arresting
officer would have had to rely on the HGN test. Moore does not argue that Officer Johnston did not have
reasonable suspicion to make an investigative stop nor does he claim that
Johnston's stop was pretextual.
The
facts known to Johnston were sufficient to arrest Moore for operating under the
influence without considering the HGN test.
Certainly the evidence was sufficient to empower Officer Johnston to
require Moore to perform field sobriety tests.
Moore claims that the videotape of the field sobriety tests shows that Moore
was not impaired. However, Officer
Johnston stated that Moore failed the heel-to-toe test. Our review of the videotape does not lead us
to conclude that Officer Johnston's observations were faulty.
Therefore,
the Village did not rely solely on the result of the HGN test. Considering all of the facts and
circumstances available to Officer Johnston, we conclude that he had probable
cause to arrest Moore for operating while under the influence, even if the HGN test
is excluded. The jury heard Moore's
attack on the evidence and concluded that Moore was operating under the
influence. The evidence of the HGN test
was not such a critical part of the Village's evidence that it is probable the
jury would have reached a different result if that evidence had been
excluded. See State v.
Horenberger, 119 Wis.2d 237, 246-49, 349 N.W.2d 692, 696-98 (1984).
II.
RESULTS OF
THE INTOXILYZER TEST
A
chemical test for intoxication is only evidence, admissible on the issue of
whether an operator of a motor vehicle was under the influence of an intoxicant
or had a prohibited alcohol concentration when he or she operated a motor
vehicle. Section 885.235(1), Stats.
The weight to be given to a chemical test is spelled out in
§ 885.235. However,
§ 885.235(4) provides:
The provisions of
this section relating to the admissibility of chemical tests for alcohol
concentration, intoxication or blood alcohol concentration shall not be
construed as limiting the introduction of any other competent evidence bearing
on the question of whether or not a person was under the influence of an
intoxicant, had a specified alcohol concentration or had a blood alcohol
concentration in the range specified in ... s. 346.63(2m) or 350.101(1)(c).
It
is entirely appropriate for Moore to attack the sufficiency of the Village's
evidence. However, Moore's approach
seems to be that he is entitled to reversal of his conviction if an evidentiary
test used by the Village to determine intoxication is by itself
insufficient to support the conviction.
It was the function of the jury to consider all of the evidence,
whatever its imperfections. Moore
attacked the sufficiency of the evidence and the test which we must apply to
the jury's verdict is whether there is any credible evidence to support that
verdict. See State v.
Poellinger, 153 Wis.2d 493, 506-07, 451 N.W.2d 752, 757 (1990). We conclude that there is.
We
recognize, however, that the results of chemical tests are given great weight
by the police and by juries and the courts in testing for intoxication and
prohibited alcohol concentration.
Therefore, we do not lightly dismiss Moore's attacks on the Intoxilyzer
test results. We conclude, however,
that Moore has failed to show that the test operator was unqualified or that he
improperly conducted the test.
Moore
attacks Kemnitz's expertise by showing that his certification as an operator
was withdrawn by the department of transportation shortly after he tested
Moore's breath, that he required retraining and that his recertification in
July of 1995 was not routine. However,
Moore failed to show that Kemnitz performed the breath test improperly. We have said that in order for a defendant
to show prejudice because of counsel's deficient performance, the defendant
must show that relevant exculpatory evidence could have been presented or
inculpatory evidence excluded. See State
v. Wirts, 176 Wis.2d 174, 500 N.W.2d 317 (Ct. App.), cert. denied,
114 S. Ct. 257 (1993). We said that a
criminal defendant who claims ineffective assistance of counsel cannot ask the
reviewing court to speculate whether counsel's deficient performance resulted
in prejudice to the defendant. Id.
at 187, 500 N.W.2d at 321. Similarly, a
defendant charged with operating a motor vehicle while under the influence or
with a prohibited alcohol concentration cannot claim prejudice unless he or she
can show that the chemical test was improperly performed. Here, Moore asks us to infer from the fact
that Kemnitz was recertified that he did not perform the breath test
properly. We refuse to draw that
inference.
Moore
also claims that the Village does not dispute that proper operation of the
Intoxilyzer required checking of the hoses and propeller on the simulator used
to calibrate the machine during testing.
However, Moore did not present any evidence that he was prejudiced by
the operator's failure to follow these procedures. He does not claim that there was a leak in the hose connection or
that the Intoxilyzer indicated a leak.
Nor did Moore present any evidence that the Intoxilyzer was not
functioning properly. The Village
asserts that when Kemnitz tested Moore's breath, the Intoxilyzer was working
properly. In his reply brief, Moore
does not dispute that fact. We
therefore conclude that the trial court did not err in admitting Kemnitz's
testimony as to the result of the Intoxilyzer test administered to Moore.
III.
THE
DOUBLE JEOPARDY ISSUE
Moore
concedes that we are bound by our decision in State v. McMaster. We therefore do not reach Moore's claim that
this prosecution denied his constitutional right to be free from being placed
twice in jeopardy for the same offense.
By
the Court.—Judgment affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.