County of Ozaukee v. Quelle

• Citation: 542 N.W.2d 196,198 Wis.2d 269
• Decision Date: 22 November 1995
• Docket Number: No. 95-1074,95-1074
• Parties: COUNTY OF OZAUKEE, Plaintiff-Respondent, v. Nancy L. QUELLE, Defendant-Appellant. d
• Court: Court of Appeals of Wisconsin

Page 196

542 N.W.2d 196

198 Wis.2d 269

COUNTY OF OZAUKEE, Plaintiff-Respondent, v. Nancy L. QUELLE, Defendant-Appellant. ^d

No. 95-1074.

Court of Appeals of Wisconsin.

Submitted on Briefs Nov. 3, 1995.

Opinion Released Nov. 22, 1995.

Opinion Filed Nov. 22, 1995.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Robert C. Raymond and Roxanne F. Felizmena of Raymond Law Offices, Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Adam Y. Gerol, Assistant District Attorney.

Before BROWN, NETTESHEIM and SNYDER, JJ.

BROWN, Judge.

Nancy L. Quelle pled no contest to a charge of operating her vehicle while intoxicated. She now argues that the trial court erred in denying her motion to suppress the results of her breath alcohol test because the arresting officer did not accurately or completely inform her about Wisconsin's implied consent law. She asserts she was subjectively confused by the officer's conduct. She argues that while a "subjective confusion" defense has not to this point been judicially recognized in Wisconsin, its viability was acknowledged by our supreme court in Village of Oregon v. Bryant, 188 Wis.2d 680, 524 N.W.2d 635 (1994). We conclude that the "subjective confusion" language in the decision is mere dicta and that the court did not intend to launch such a defense. Therefore, after reviewing existing case law, we hold that Quelle's test was valid.

We will briefly outline the facts with a more thorough accounting later. Quelle was brought to the station house after her arrest for driving while intoxicated. There, an officer read her the Informing the Accused form which consists of five paragraphs. Quelle also read each paragraph to herself and questioned the officer about each paragraph. At various points, the officer attempted to explain the paragraphs to her and, after roughly forty-five minutes of questions and answers, Quelle agreed to take the test. She did not pass.

In a pretrial motion, Quelle moved to suppress the breath test results. In the four months between her filing of the motion and the evidentiary hearing, our supreme court released the Bryant decision. There, ruling on three consolidated cases, the court found that Wisconsin's current Informing the Accused form is not contradictory or confusing on its face. Id. at 691-94, 524 N.W.2d at 639-40. However, the court wrote:

We emphasize also that in none of the cases before us is there any claim on this review that the drivers were subjectively confused. We merely determine as a matter of law that the statutes are consistent and not contradictory, nor are the regulations interpreting them.

Id. at 693-94, 524 N.W.2d at 640; see id. at 686 n. 3, 524 N.W.2d at 637. Based upon this passage, the testimony at the suppression hearing centered on whether Quelle became subjectively confused by the officer's attempts to explain the form to her. As voiced by her counsel, Quelle's contention before the trial court was that the "officer told her things which are in essence inconsistent with what the law is or is confusing." After the hearing, the trial court took the case under advisement to review the Bryant case and eventually denied the motion to suppress. The trial court found that the officer's conduct was not contradictory or confusing. Quelle then pled no contest to the charge and brought this appeal.

Initially, we address the County's waiver claim. It cites established law that a plea of guilty, knowingly and understandingly made, constitutes a waiver of nonjurisdictional defenses, including claimed violations of constitutional rights. County of Racine v. Smith, 122 Wis.2d 431, 434, 362 N.W.2d 439, 441 (Ct.App.1984). Waiver also applies where the plea is one of no contest. Id. While the legislature has promulgated § 971.31(10), STATS., allowing defendants to appeal denials of motions to suppress notwithstanding a guilty or no contest plea, the statute only applies in criminal cases. Smith, 122 Wis.2d at 435, 362 N.W.2d at 441. This is not a criminal case. While the County acknowledges that an appellate court may review nonjurisdictional errors in the exercise of its discretion, id. at 434, 362 N.W.2d at 441, it nonetheless contends that we should apply Smith and dismiss Quelle's claim.

We decide not to apply the waiver rule here for the following reasons. First, although a jury trial was scheduled, the no contest plea saved administrative costs and time. As we pointed out in Smith, it often improves the administration of justice to avoid an unnecessary and protracted trial when the sole issue is a review of a suppression motion. See id. at 437-38, 362 N.W.2d at 442. Second, since the issue raised on appeal was squarely presented before the trial court and testimony was taken regarding the issue, we have an adequate record. Third, this does not appear to be a case where the defendant took a chance on a more lenient sentence and then brought this appeal when the sentence was more severe than hoped. All indications are that this was a garden-variety first offender driving while intoxicated case and the penalty assessed was no greater or lesser than usual. Cf. State v. Holt, 128 Wis.2d 110, 124, 382 N.W.2d 679, 686 (Ct.App.1985) (recognizing that litigants may not use appellate rights simply to remedy an unfavorable trial verdict). Fourth, there are no published cases applying the pertinent language in Bryant. We are mindful of the rule favoring repose when a defendant has pled guilty or no contest to a charge. See Smith, 122 Wis.2d at 437, 362 N.W.2d at 442 ("He cannot be heard to complain of an act to which he deliberately consents.") (quoting Agnew v. Baldwin, 136 Wis. 263, 267, 116 N.W. 641, 643 (1908)). On balance, however, we will not apply the waiver rule here.

Turning to the merits, we first address what the statement about "subjective confusion" at the end of the Bryant case means. Pursuant to RULE 809.61, STATS., we originally certified this question to the supreme court. This request was denied. Therefore, we will give our opinion as to the significance of Bryant 's "subjective confusion" language. This and the other related issues Quelle raises are questions of law which we review de novo. See State v. Hagaman, 133 Wis.2d 381, 384-85, 395 N.W.2d 617, 618 (Ct.App.1986).

We first observe that the warnings provided drivers under the implied consent law are analogous to those employed in Miranda-type cases. ¹ The Miranda warnings themselves are not confusing such that understanding the warnings affects a person's unconstrained will to confess to a crime. See 1 WAYNE R. LAFAVE & JEROLD H. ISRAEL, CRIMINAL PROCEDURE, § 6.9(b) (1984). The police, however, may create confusion for the accused by misstating the warnings or using other coercive and manipulative means to procure information. See, e.g., Barrera v. State, 99 Wis.2d 269, 291, 298 N.W.2d 820, 830 (1980), cert. denied, 451 U.S. 972, 101 S.Ct. 2051, 68 L.Ed.2d 352 (1981). There are similar problems that may occur when police deliver the implied consent warnings.

Every driver in Wisconsin impliedly consents to take a chemical test for blood alcohol content. Section 343.305(2), STATS. A person may revoke consent, however, by simply refusing to take the test. See § 343.305(9). Thus, a driver has a "right" not to take the chemical test (although there are certain risks and consequences inherent in this choice). The legislature recognized that drivers being asked to take a chemical test should be informed of this choice and therefore requires law enforcement officers to provide drivers with certain information. Section 343.305(4). We conclude that there is a functional similarity between this political conclusion and the Supreme Court's command in Miranda v. Arizona, 384 U.S. 436, 467, 86 S.Ct. 1602, 1624, 16 L.Ed.2d 694 (1966), that criminal suspects need to be informed of certain constitutional rights.

These observations about the implied consent law, nevertheless, must be reconciled with a line of our earlier decisions that addressed alleged deficiencies in the officer's delivery of the warnings. These cases support the conclusion that an accused driver must make two showings when challenging an officer's conduct: one, that the officer misstated the warnings, or otherwise misinformed the driver, and two, that the officer's misconduct impacted his or her ability to make the choice available under the law.

Most notably, in State v. Geraldson, 176 Wis.2d 487, 500 N.W.2d 415 (Ct.App.1993), we faced a driver who had his license revoked after refusing the chemical test. Although he was driving a Volkswagen at the time of the stop, he also possessed a valid commercial license. The officer, however, failed to read him all of the additional warnings that must be given to commercial drivers. Compare § 343.305(4), STATS., with § 343.305(4m). As a result, the driver was not fully informed of the respective consequences to his standard and commercial driving privileges. See Geraldson, 176 Wis.2d at 488-91, 500 N.W.2d at 416-17.

Because the driver was not given all of the information he was entitled to, we held that the state could not revoke his operating privileges. See id at 494-95, 500 N.W.2d at 418. In arriving at this conclusion, we distinguished State v. Piskula, 168 Wis.2d 135, 140-41, 483 N.W.2d 250, 252 (Ct.App.1992), where we held that the failure to read the commercial warnings to a standard license holder was not a fatal error. We reasoned that these cases were founded on a simple premise: the implied consent warnings are designed to inform drivers of the rights and penalties applicable to them. See Geraldson, 176 Wis.2d at 494, 500 N.W.2d at 418. Thus, in Piskula there was no error because the driver did not need to know what effects there could be to a commercial license that he did not have. But in Geraldson, the driver did have a commercial license; thus, he needed to know how a...