2008 WI App 182

Date:  11/4/08

Holding: Kletzien is not entitled to an in-camera review or an evidentiary hearing because he failed to the meet the burden of proof establishing that the in-camera review and the requested testing would yield evidence relevant to an issue of consequence.

Summary: Kletzien was driving an Econoline van when he ran a red light, struck a Honda Civic in the intersection, killing one person and severally injuring two people.  A police officer interviewed Kletzien at the crash scene, smelled alcohol on his breath, and found open and unopened cans of beer in Kletzien’s van.  A blood draw revealed an alcohol concentration of .195 two hours after the crash.  As a result, Kletzien entered a plea agreement to homicide by intoxicated use and causing felony injury by intoxicated use.

After sentencing, Kletzien filed a postconviction motion seeking evidence that would support his theory that the driver of the other vehicle may have contributed to the crash by entering the intersection from the wrong lane or by being impaired. The trial court denied Kletzien’s motion. A person convicted of a crime has a due process right to postconviction discovery, at the court’s discretion, if the requested evidence is relevant to an issue of consequence. State v. Ziebart, 2003 WI App 258, ¶ 32.  Kletzien appealed, arguing the trial court erroneously exercised its discretion in denying his postconviction discovery motion. Furthermore, Kletzien contended that he made a sufficient preliminary showing to require an in-camera review of the driver’s medical and toxicology records and that an evidentiary hearing would be required. 

The court of appeals denied Kletzien’s request for an in-camera review of the privileged information in the toxicology and medical records.  Kletzien did not show a “reasonable likelihood” that the records are necessary to determine guilt or innocence.  State v. Shiffra, 175 Wis. 2d 600, 603-05, 499 N.W. 2d 719 (Ct. App 1993); State v. Green, 2002 WI 68, ¶32-33, 253 Wis. 2d 356, 646 N.W.2d 298.  The court found that there was no evidence that the driver of the other vehicle had alcohol in the car or was intoxicated, and mere speculation is not enough to demonstrate reasonable likelihood that the information is necessary.  The court also denied Kletzien’s request for an evidentariary hearing, stating, “These inquiries are nothing more than a fishing expedition, as Kletzien seeks to have a hearing to explore the possibility that evidence may exist which may assist him.”  Since Kletzien failed to meet the burden of showing the discovery would be relevant to an issue of consequence, the court affirmed the trial court’s finding that Kletzien was entirely responsible for the accident and none of the evidence Kletzien sought would change the jury’s finding.

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State v. Mertes

2008 WI App 179

Date:  11/26/08

Case No:  2007AP2757-CR

Holding: : Reasonable inferences about operating a motor vehicle, based on concrete evidence, is enough to convict.

Summary:
Mertes appeals his conviction of operating a motor vehicle with a detectable amount of a restricted controlled substance, fifth offense, and operating after revocation, first offense, on the grounds there was insufficient evidence to support the jury’s findings that he had operated a vehicle on a highway.  Mertes was found “passed out” behind the wheel of his car at a gas pump of a gas station.  The engine of the car was off, and the yellow parking lights and interior dash lights were on.  The key was in the ignition, but it could not be determined if it was in the “auxillary position” or “accessory position.”  Mertes was not able to give the officer a reason for being in the parked car and did not know exactly how long he had been there, but he estimated ten minutes.  He further indicated that he had come from Milwaukee and was headed back there.  After detecting an odor of intoxicants, the officer asked Mertes to perform field sobriety tests.  Based on Mertes’ performance on the tests, the officer placed him under arrest.  At trial, Mertes claimed that there was insufficient evidence to establish that he had operated the vehicle.    Nobody saw him pull into the gas station and he told the officer at the time of his arrest that he had not driven the car.  The jury found Mertes guilty on both counts, and he subsequently appealed, challenging both of his convictions. 

On appeal, if more than one reasonable inference can be drawn from the evidence, the court of appeals must adopt the inference that supports the verdict.  State v. Poellinger, 153 Wis. 2d 493, 507, 451 N.W.2d 752, 755 (1990).  In reviewing the sufficiency of the evidence to support a conviction in circumstantial evidence cases, the court cannot substitute its judgment for the jury’s, unless the evidence, viewed most favorably to the state and the conviction, is so lacking in probative value that no trier of fact could have found guilt beyond a reasonable doubt.  Id.

Here, the court of appeals found that the jury drew a reasonable inference that Mertes operated the vehicle based on the totality of the circumstantial evidence, including: (1) the key was in the ignition; (2) the parking and dash lights were on; (3) Mertes’ admission that he had been at the gas station for 10 minutes; (4) Mertes’ statement that he had come from Milwaukee and was on his way back there; (5) lack of evidence suggesting the passenger or anyone else had operated the vehicle.  The court concluded that even without a running motor, there was sufficient circumstantial evidence for the jury to conclude that Mertes had operated the vehicle.   Mertes also challenged the finding that he operated the vehicle on a “highway.”  The court concluded that the same evidence the jury used to find Mertes operated the vehicle was sufficient to support a finding that he drove on a “highway” prior to arriving at the gas station.  The court aptly observed, “Vehicles do not simply materialize next to gas pumps at filling stations.  They are driven to such locations.”

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State v. Fischer, 2008 WI App 152

Date:  9/10/08
Case No:  2007AP1898-CR

Holding: A PBT result is not admissible evidence in an OWI trial, nor is expert testimony regarding extrapolating a probable blood alcohol concentration after comparing the PBT result to defendant’s evidentiary blood test result.

Summary:
Fischer was pulled over by an officer on suspicion of driving while intoxicated.  Approximately a half an hour after being stopped, after Fischer failed a field sobriety test, the officer administered a PBT, which registered a .112 percent.  A chemical blood test, administered an hour later, resulted in a .147 percent BAC.  Fischer was charged with OWI and PAC. 

    At trial, Fischer retained an expert witness who, by comparing the PBT result to the blood test result, extrapolated a probable BAC at the time Fischer was initially pulled over.  The expert planned to testify that Fischer’s BAC may have been below 0.08 when he was first stopped.  The State filed a motion to exclude the testimony, specifically the use of the PBT result.   Acknowledging that PBT results are inadmissible evidence in prosecutions for OWI, Fischer argued he had a Sixth Amendment right to present the expert’s evidence.  In rejecting Fischer’s claim, the circuit court looked to the legislative intent behind Wis. Stat. § 343.303 and found that the legislature never intended a PBT result to be an evidentiary test.   While the legislature deemed the PBT reliable enough for a probable cause determination, it did not consider it reliable enough to be admitted into evidence for purposes of determining guilt or innocence.

    In determining whether a state’s rule excluding defense evidence abridges a defendant’s Sixth Amendment rights, the Court of Appeals looked to the test set forth by the U.S. Supreme Court in U.S. v. Scheffer.  A state rule is unconstitutionally arbitrary or disproportionate only where it has infringed upon a weighty interest, a fundamental element of the accused’s defense.  Scheffer, 523 U.S. 303, 308-315.  Offering guidance on how to apply the Scheffer test, the Wisconsin Supreme Court outlined a two-part inquiry in State v. St. George.  The restriction on the right to present a defense that the statute imposes and the purposes for which the statute is designed to serve must be balanced.  The defendant must satisfy each of the following four factors through an offer of proof: (1) The offered testimony meets the standards of Wis. Stat. § 907.02 governing admission of expert testimony; (2) The expert’s testimony must be clearly relevant to a material issue in this case; (3) The expert witness’s testimony is necessary to the defendant’s case; (4) The probative value of the expert witness’s testimony outweighs its prejudicial effect. State v. George, 2002 WI 50 ¶54.  The second part of the inquiry is determining whether the defendant’s right to present a defense is outweighed by the State’s compelling interest to exclude the evidence.  Id. ¶55. 

    Turning to the case at hand, after the court of appeals found that Fischer satisfied all four factors, the court evaluated the second part of the test.  In doing so, the court found that the PBT is a “qualitative” test, which can indicate the presence or absence of alcohol used for probable cause determinations, while the chemical blood test is “quantitative” and yields a specific result in grams of alcohol per 210 liters of breath.  Neither the prosecution nor the defense can use PBT results as evidence, because it is not accurate enough to determine the driver’s guilt or innocence.   Therefore, the PBT result was not admissible.

Similarly, the court concluded that because the underlying basis for the defense expert’s opinion was a result that could not be tested for accuracy, the testimony had no probative value and could not assist the trier of fact.   As such, the testimony of the defense expert was inadmissible.

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State v. Tecza, 2008 WI App 79

Date:  4/23/08
Case No:  2007AP1783

Holding: Roadways within a gated community are open for public use of motor vehicles for purposes of charging and prosecuting OWI.  

Summary:
Tecza was stopped and sitting in his running vehicle on a road in his gated community.  Local police responded to a call by the private security of the gated community.  Police arrested Tecza for OWI and OWI-PAC.  Tecza moved to dismiss the charges, alleging that the roads in the gated Geneva National Community are not open to the public, therefore the OWI laws do not apply under s. 346.61.  Tecza argued that since there is a staffed security station and gates, which must be passed through to enter the community, the roadways are restricted from public use.

In City of Kenosha v. Phillips, 142 Wis. 2d 549, 553, 419 N.W.2d 236 (1988), the court held that unless the public is specifically prohibited from using or accessing the premises in question, the location is open to the public.  Determining whether it is open to the public is not based up physical accessibility, such as gates or a security station, but upon the “intent of the person or corporation in control of the premises” in making it available to the public. Id. at 557.  In Tecza’s gated community, nonresidents are not barred from entering the community and local police have unrestricted access.

Here the court found that the gated community did not attempt to limit access solely to community residents and the roadways were not restricted to a “defined, limited portion of the citizenry.” City of La Crosse v. Richling, 178 Wis. 2d 856, 858-861, 505 N.W.2d 448 (Ct. App. 1993).  Specifically, since the local police had unrestricted access to patrol the roadways of Tecza’s gated community and enforce traffic regulations, all municipal and state laws apply to the roadways of the community and its residents.   

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State v. Kramer, 2008 WI App 62

Date:  3/27/08
Case No:  2007AP1834-CR

Holding: A seizure is lawful if the officer was acting in a community caretaker capacity.

Summary:
Kramer’s vehicle was pulled over on the side of the road with hazards flashing.  The highway patrol officer pulled up behind Kramer’s vehicle to see if its driver needed assistance.  When the officer made contact with Kramer, he noticed Kramer was slurring his speech and there was a strong odor of intoxicants from inside the vehicle.  Kramer was arrested and convicted of operating a motor vehicle while under the influence of an intoxicant.  Kramer moved to suppress the evidence, alleging he was unlawfully seized before the officer discovered Kramer was intoxicated. 

The court of appeals held that the seizure was lawful because the officer was acting as a community caretaker by stopping to inquire of Kramer’s wellbeing.  In State v. Anderson, 142 Wis. 2d 162, 417 N.W.2d 411 (Ct. App. 1987) the court adopted a two-part test for determining when a seizure is justified by an officer acting in a community caretaker function; namely, (1) the police activity must be bona fide community caretaker activity, and (2) the public need and interest must outweigh an intrusion upon the privacy of the individual.  

To meet the first requirement of the Anderson test, the police activity has to be “totally divorced” from the discovery of evidence related to the criminal violation.  State v. Dull, 211 Wis. 2d 652, 658, 565, N.W.2d 575 (Ct. App. 1997).  However, in Kramer the court of appeals concluded that the officer’s subjective concerns that an innocent-seeming traffic situation might turn out to involve criminal activity does not prevent the officer’s activity from being considered a bona fide community caretaker activity. 

The second factor of the Anderson test is balancing the public need and interest against the intrusion upon the individual.  This prong of the test requires consideration of, “(1) The degree of public interest and the exigency of the situation; (2) The attendant circumstances surrounding the seizure; (3) Whether an automobile is involved; and (4) The availability, feasibility and effectiveness of alternatives to the type of intrusion. “Anderson, 142 Wis. 2d at 169-70.  The court found that the public has an interest in police officers assisting motorists who may be stranded or in need of other assistance.  Here, the officer’s use of emergency lights was the appropriate precaution to minimize any danger of the officer pulling off on the side of the road.     Furthermore, when an automobile is involved there is a decreased expectation of privacy and the officer’s decision to address the situation in the manner he did was the most reasonable action based on the circumstances of this case.  The court found that the officer’s seizure of Kramer was lawful because he was acting in a community caretaker capacity when the seizure occurred.  Thus, evidence of Kramer’s intoxication need not be suppressed. 

    The court of appeals acknowledged that it is bound by the “totally divorced” rule enunciated in State v. Anderson, as community caretaker precedent.  However, the court then engaged in a lengthy discussion of that rule as “comment” that “does not affect our decision.” Kramer, at ¶ 30.  Specifically, the court pointed out that in State v. Kyles, 2004 WI 15, 269 Wis. 2d 1, 675 N.W.2d 449, the Wisconsin Supreme Court held that a court may consider an officer’s subjective fears in determining whether the objective standard is met.  In Kyles, the court held that the law governing protective frisks for weapons can be valid even when an officer testifies that he or she does not actually feel threatened by the person frisked.  Thus, the court of appeals reiterated that the “well-settled Fourth Amendment law provides that a search or seizure may not be found legal or illegal because of an officer’s subjective motives or thoughts.” Kramer, at ¶ 35.  This means that if an officer effects a seizure while believing, unreasonably, that criminal activity is afoot, the State is not precluded from proffering a community caretaker rational for the officer’s action based on an objective assessment of the circumstances.   

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Washburn County v. Smith, 2008 WI App 23

Date:  3/28/08
Case No:  2006AP3163

Holding:
The officer had probable cause to arrest Smith for OWI and Smith's subsequent implied consent refusal was unlawful.

Summary:
The defendant was pulled over for going 21 miles-per-hour over the speed limit.  The officer observed that Smith seemed to have a delayed reaction once the emergency lights were activated.  The officer also noticed that Smith’s vehicle crossed the double-yellow centerline twice before stopping.  The officer detected an odor of alcohol and the defendant admitted he had “a couple of beers.” The officer arrested Smith for operating a motor vehicle while under the influence of an intoxicant.  Smith refused to submit to a chemical test under the implied consent law. 

Smith alleges that the officer did not have probable cause to arrest him.  The issue is raised in the context of the refusal hearing.  In that setting, “probable cause” refers to that quantum of evidence that would lead a reasonable officer to believe that defendant was operating a motor vehicle while under the influence of an intoxicant.  Smith at ¶ 15.

Smith argues that a field sobriety test is required to establish probable cause under State v. Swanson, 164 Wis. 2d 437, 475 N.W.2d 148 (1991). Here, the Wisconsin Supreme Court clarifies the Swanson decision by stating that it did not create a general rule requiring field sobriety tests in all cases as a prerequisite for establishing probable cause.  Rather, the question of probable cause must be determined on a case-by-case basis. 

The facts in Smith are similar to State v. Wille, 185 Wis. 2d 673, 684, 518 N.W.2d (Ct. App. 1995).  In Wille, where the court of appeals found that the law enforcement officer had probable cause to arrest Wille when he smelled alcohol; knew that the defendant caused an automobile accident; and heard the defendant make a statement which evinced a consciousness of guilt.  Applying , Willie the Wisconsin Supreme Court concluded that under the circumstances, the officer’s knowledge at the time of Smith’s arrest, including Smith’s statement that he had consumed an indeterminate number of alcoholic drinks prior to driving, would have led a reasonable officer to believe the defendant was operating his vehicle under the influence of an intoxicant.  Therefore, the officer had probable cause to arrest.

Smith also contends that his refusal to submit to chemical testing was not improper because a refusal to submit to a chemical test for intoxication cannot result in revocation of operating privileges unless the officer has properly informed the person of his/her rights under the law.  Smith contends that the officer made two misstatements concerning penalties for refusing a chemical test when informing him of his rights under the implied consent law as required under Wis. State. § 343.305(4).  First, the officer advised the defendant of Wisconsin license penalties even though the defendant was licensed in Louisiana.  Second, the officer mistakenly told the defendant that if he refused the chemical test he would get a hearing within ten days.

 In County of Ozaukee v. Quelle, 198 Wis. 2d 269, 542 N.W.2d 196 (Ct. App. 1995), the court of appeals established a three-prong test to determine whether an officer fulfilled the requirements under the implied consent law.  Specifically, three questions must be answered in the affirmative, before finding the information provided by the law enforcement officer was inadequate, namely: “(1) Has the law enforcement officer not met, or exceeded his or her duty under § 343.305(4) . . . to provide information to the accused driver; (2) Is the lack or oversupply of information misleading; and (3) Has the failure to properly inform the driver affected his or her ability to make the choice about chemical testing?” Id.

Further, in State v. Ludwigson, the court of appeals held that it is the defendant’s burden to prove by a preponderance of the evidence that the erroneous additional information the officer provided caused the defendant to refuse to submit to chemical testing.  The Supreme Court applied Quelle and Ludwigson to the facts of this case.  In response to the first question, the answer is in the affirmative because the officer provided more information than required under § 343.305(4).  In response to the second query, the court found that the officer accurately stated Wisconsin law.  However, the officer incorrectly told the defendant he was entitled to a refusal hearing within ten days.  Finally, and most importantly, the court concluded that Smith failed to make a prima facie showing required by Ludwigson that the officer’s statements about a hearing contributed to the defendant’s refusal to submit to chemical testing.  Therefore, the defendant improperly refused to submit to a chemical test under the implied consent law.

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State v. Marten-Hoye, 2008 WI App 19

Date:  1/24/08
Case No:  2006AP1104-CR

Holding:
To determine if a search is incident to a lawful arrest, the court must decide whether a reasonable person in the defendant’s position would have believed he or she was under arrest or in custody based on the circumstances.

Summary:
Officers stopped Marten-Hoye on the street on suspicion of a possible curfew violation. She was cleared and told she was free to leave.  Marten-Hoye then proceeded to walk away and yell obscenities to the police officers, in which the officers responded by handcuffing her and placing her under arrest for disorderly conduct.  The officers told her that if she cooperated she would receive a city ordinance violation and then be released.  While one officer filled out the citation, the other officer searched Marten-Hoye and found contraband. 

Marten-Hoye moved to suppress the evidence discovered during the search, arguing there was no probable cause to arrest her for disorderly conduct and the officers could not perform a search incident to arrest because she was never arrested.  The issue is whether the search was incident to a lawful arrest. 

Marten-Hoye contends that the search was unconstitutional because it was incident to a citation and not to arrest, citing Knowles v. Iowa, 525 U.S. 113 (1998).  The State argues based on State v. Swanson, 164 Wis. 2d 437, 446-447 N.W.2d 148 (1991), that the test for whether a person has been arrested is “whether a reasonable person in the defendant’s situation would have considered himself or herself to be in custody given the degree of restraint.”  Since Marten-Hoye was told she was under arrest and the officer placed her in handcuffs, the State argues that there was a reasonable belief she was under arrest. 

There is no bright-line rule, which establishes when an arrest has occured.  In State v. Vorburger, 2002 WI 105, 255 Wis. 2d 537, 648 N.W.2d 829, the court determined that placing a suspect in handcuffs does not necessarily constitute an arrest, it is whether a reasonable person in the defendant’s position would have believed he or she was under arrest. 

The court determined that Marten-Hoye was handcuffed because she was loud and uttering profanities not because she was under arrest.  Further, she was not placed in the squad car or taken to the police station and her entire interaction with the officers occurred in public. The fact that the officer assured Marten-Hoye that once the citation was issued she would be released is enough to raise a doubt that she was under arrest or “in custody.”  The Wisconsin Court of Appeals concluded the search was unconstitutional and that a reasonable person would not have believed he or she was “in custody.”

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