In the Matter of Refusal of Burton, No. 2009AP180 (Wis. App. 9/23/2009)
| Decision Date | 23 September 2009 |
| Docket Number | No. 2009AP180.,2009AP180. |
| Parties | In the Matter of the Refusal of Kevin D. Burton: State of Wisconsin, Plaintiff-Respondent, v. Kevin D. Burton, Defendant-Appellant. |
| Court | Court of Appeals of Wisconsin |
APPEAL from an order of the circuit court for Manitowoc County: PATRICK L. WILLIS, Judge. Affirmed.
Kevin D. Burton appeals from an order for revocation of his operating privileges for a period of three years. He contends that the circuit court erred in revoking his operating privileges because his arrest for operating a motor vehicle while intoxicated was not supported by probable cause. We disagree and affirm the order.
¶ 2 On April 10, 2008, Manitowoc County Sheriff's Deputy Jeff Horneck received a dispatch advising of a hit-and-run accident involving a motorcycle and another vehicle. Dispatch also advised that the male motorcycle operator had gone to a nearby garage and hid inside for some time and that a vehicle, a black Cadillac, pulled up and a male left the garage and entered that vehicle and left the scene. The information was provided by witnesses who identified themselves to dispatch, and they were continuously reporting their observations by cell phone. Dispatch informed Horneck that the motorcycle operator was wearing a darker colored jacket, was possibly in his fifties, had frizzy hair, and that the Cadillac was traveling eastbound on Highway V.
¶ 3 Shortly after receiving the information, Horneck arrived in the area and observed a black Cadillac travelling on Highway V. Horneck activated the emergency lights and initiated a traffic stop. After Horneck pulled in behind the Cadillac, he observed that the passenger, later identified as Burton, was a male who matched the description given by the witnesses.
¶ 4 Horneck approached on the passenger side of the vehicle with his weapon drawn and ordered the passenger out of the vehicle.2 Burton did not comply right away, so Horneck placed his hand on him and ordered him out of the vehicle. Once Burton exited the vehicle, Horneck ordered him to lay face down on the ground and place his hands behind his back to be handcuffed. Burton was handcuffed and patted down for weapons. Before putting handcuffs on Burton, Horneck holstered his weapon and it remained holstered throughout the remainder of the stop.
¶ 5 Horneck informed Burton that he received a complaint of a hit-and-run involving a motorcycle and a vehicle and that Burton was identified as the operator of the motorcycle. When Horneck questioned Burton about operating a motorcycle, Burton initially denied operating his motorcycle, saying that it was at his shop. However, after Horneck informed Burton that witnesses saw him operating the motorcycle, Burton admitted that he had been driving drunk that night, but denied hitting anyone or being involved in an accident.
¶ 6 Horneck then advised Burton that he would be investigating the matter further and transported Burton, while still handcuffed, to a bank parking lot near the scene of the accident. The bank is located less than one mile from the location of the traffic stop of the Cadillac. At the bank, Horneck learned from the witnesses that there was no other vehicle involved and that the operator of the motorcycle crashed the motorcycle on his own. The witnesses reported that they called the sheriff's department after they observed Burton driving erratically. Horneck testified that from the moment he initiated the questioning on the scene, he noticed that Burton had a strong odor of intoxicants and bloodshot glassy eyes.
¶ 7 Horneck then drove Burton to a local hospital for further investigation. Horneck noted that the crash occurred when there were no other factors involving weather or traffic that would have caused it. He asked Burton if he felt impaired, and Burton stated that he did. Upon observing that Burton was unsteady, Horneck asked Burton to submit to field sobriety tests. When Burton refused to perform the Horizontal Gaze Nystagmus test and the Walk-and-Turn test, Horneck advised him that he would take it as a refusal to complete the tests. Burton then refused to perform the One Leg Stand test, but a preliminary breath test showed a result of .209 percent.
¶ 8 Horneck advised Burton that he was under arrest for OWI. Horneck provided Burton with the information required by Wisconsin's implied consent statute, see WIS. STAT. § 343.305(4), and Burton checked the "no" box on the Informing the Accused form, thereby refusing to submit to an evidentiary chemical test.
¶ 9 Prior to trial, Burton moved to suppress any evidence obtained during and following the traffic stop on grounds his arrest was not supported by probable cause and to suppress any statements he made on grounds that he was not provided with the requisite Miranda3 warnings prior to custodial interrogation. The circuit court granted Burton's motion seeking suppression of statements he made prior to a Miranda warning, but denied his motion to suppress all evidence for lack of probable cause to arrest. On September 8, 2008, a jury acquitted Burton, finding that he had not operated while intoxicated or with a prohibited alcohol concentration.
¶ 10 The circuit court subsequently took up the issue of Burton's license revocation stemming from his refusal to submit to the chemical blood test under WIS. STAT. § 343.305(4). At the refusal hearing held on November 21, 2008, the circuit court concluded that Burton unreasonably refused to submit to the test. The court revoked Burton's driving privilege for a period of thirty-six months. Burton appeals.
¶ 11 Burton asserts that the circuit court erred in finding that he improperly refused to submit to an evidentiary chemical test of his blood. Under Wisconsin law, when a driver is alleged to have improperly refused to submit to a blood test, the issues are limited to (1) whether the officer stopping the driver had probable cause to believe the driver was operating a motor vehicle while under the influence of alcohol, (2) whether the officer properly informed the driver of his or her rights and responsibilities under the implied consent law, and (3) whether the defendant improperly refused the test. WIS. STAT. § 343.305(9)(a)5.
¶ 12 Burton narrows the issue to the first factor: probable cause. He contends that Horneck did not have probable cause to arrest for OWI at the moment custody ensued; that is, at the traffic stop when Horneck approached the Cadillac with his weapon drawn, physically took Burton out of the car, instructed Burton to lie face down, and handcuffed him. This requires us to examine two questions: (1) At what point was Burton arrested for OWI and (2) were the totality of the circumstances at that point such that Horneck had probable cause to arrest Burton for OWI.
¶ 13 We begin by identifying the moment of arrest for OWI.4 For an inquiry such as this, there is no bright-line rule. State v. Marten-Hoye, 2008 WI App 19, ¶27, 307 Wis. 2d 671, 746 N.W.2d 498, review denied, 2008 WI 40, 308 Wis. 2d 610, 749 N.W.2d 661. For example, the Wisconsin Supreme Court has stated that an investigative stop does not become an arrest simply because the police draw the weapons. State v. Swanson, 164 Wis. 2d 437, 448, 475 N.W.2d 148 (1991), abrogated on other grounds by State v. Sykes, 2005 WI 48, 279 Wis. 2d 742, 695 N.W.2d 277. The court also recognized that the use of handcuffs does not necessarily transform an investigative stop into an arrest. Swanson, 164 Wis. 2d at 448. Thus, the question of arrest turns on the facts of each case.
¶ 14 Burton contends that he was under arrest at the moment Horneck appeared alongside the Cadillac with his gun drawn and ordered Burton to lie face down and be handcuffed. The State counters that Burton was not under arrest until he was formally placed under arrest at the hospital. It asserts that the restraint used during the hit-and-run investigation was the minimum amount necessary under the circumstances. The circuit court concluded that "once the officer transported the defendant from the scene of the accident, eight miles to the hospital, the defendant was under arrest for Fourth Amendment purposes." We agree.
¶ 15 During the course of a traffic stop, "officers may try to obtain information confirming or dispelling their suspicions." State v. Quartana, 213 Wis. 2d 440, 446, 570 N.W.2d 618 (Ct. App. 1997). An investigatory detention is not the same as a formal arrest:
By its express language, [WIS. STAT.] § 968.24 ... authorizes the police to move a suspect short distances during the course of a temporary investigation. The statute states that the police may temporarily detain and question an individual "in the vicinity where the person was stopped." Therefore, it is clear that the law permits the police, if they have reasonable grounds for doing so, to move a suspect in the general vicinity of the stop without converting what would otherwise be a temporary seizure into an arrest.
Quartana, 213 Wis. 2d at 446 (citation omitted). More recently, our supreme court confirmed:
The predicate permitting seizures on suspicion short of probable cause is that law enforcement interests warrant a limited intrusion on the personal security of the suspect. The scope of the intrusion permitted will vary to some extent with the particular facts and circumstances of each case. This much, however, is clear: an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time.
State v. Vorburger, 2002 WI 105, ¶76, 255 Wis. 2d 537, 648 N.W.2d 829 (citation omitted).
¶ 16 Our supreme court has adopted an objective test to determine the moment of arrest. Swanson, 164 Wis. 2d at 446. In Wisconsin, the test for...
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