In the Matter of the Refusal of Leandro Arechederra Iii
| Decision Date | 25 April 2002 |
| Docket Number | 01-0609 |
| Citation | 255 Wis. 2d 831,646 N.W.2d 854 |
| Parties | This opinion will not be published. Wis. Stat. Rule 809.23(1)(b)4. In the Matter of the Refusal of Leandro Arechederra III: State of Wisconsin, Plaintiff-Respondent, v. Leandro Arechederra III, Defendant-Appellant.STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT IV COURT OF APPEALS |
| Court | Wisconsin Court of Appeals |
APPEAL from an order of the circuit court for Dane County: PATRICK J. FIEDLER, Judge. Affirmed.
1Leandro Arechederra III appeals an order revoking his driving privileges for one year for refusal to submit to a breath test. Arechederra was arrested for operating a motor vehicle while under the influence of an intoxicant, contrary to Wis. Stat. §346.63(1)(a) (1997-98). He refused to submit to a chemical test of his breath, in violation of Wis. Stat. §343.305(2), and was issued a notice of intent to revoke his operating privileges. A refusal hearing was requested and held. The trial court resolved all issues against Arechederra. For the reasons that follow, we affirm.
FACTS
¶2. With one exception, Arechederra stipulated that the trial court could consider the police report as accurate for purposes of the refusal hearing. That exception is Officer Sweeney's assertion that Arechederra's speech was slurred, and we will ignore that assertion.
¶3. The report reveals that on February 5, 2000, at approximately 2:47 a.m., Officer Jason Sweeney was dispatched to a Taco Bell located at 5001 University Avenue in Madison, Wisconsin. The dispatcher told the officer that a Taco Bell employee named Loretta called and stated that "a drunk guy in a black car" had twice run into a car in front of it in the drive-thru and that the driver of the car appeared to be falling asleep. Loretta then told the dispatcher that employees at the Taco Bell would not give this individual his food until police arrived to prevent him from driving. She also described the black car as a Mercedes-type vehicle.
¶4. When Officer Sweeney arrived at the Taco Bell, he observed a black BMW waiting at the drive-thru window. At this time, the Taco Bell employee in the drive-thru window pointed at a black BMW in the drive-thru line, and then handed the driver of the BMW his food. The officer followed this car as it left the drive-thru area. The officer observed the car speed through the parking lot of Taco Bell and come to a complete stop before leaving the lot.
¶5. The car turned onto Whitney Way and the officer saw it over-turn and head toward a curb. The car then straightened itself out and proceeded to the intersection of Whitney Way and University Avenue. The officer noted that as the car turned right onto University Avenue, it again veered toward a curb before recovering. At this time, 2:54 a.m., the officer activated his emergency lights and stopped the car on University Avenue at an overpass for Old Middleton Road.
¶6. The officer approached the black BMW and, through the photo on his driver's license, identified the driver as Leandro Arechederra III. Arechederra was eating a burrito in the car, but the officer, nonetheless, noticed an odor of intoxicants coming from inside the car. The officer observed that Arechederra's eyes were "extremely glossed over and bloodshot," and that Arechederra's eyelids were very heavy. When the officer asked Arechederra if he had been drinking that evening, Arechederra replied that he had not, but when asked again, he replied that he had drunk "one beer much earlier at [his] girlfriend's house."
¶7. The officer asked Arechederra to step out of his car. When Arechederra placed both feet on the ground and stood up, he "stumbled" out of the car. Arechederra grabbed the hood of the car as he was walking around to the back of the car.
¶8. Once Arechederra was behind his car, the officer explained to him that because it was windy and snowing outside, and because the part of the road they were on was a steep incline with no shoulder, the officer "was going to ask him to sit in the back seat of my squad" in order to drive to a better location to perform field sobriety tests. Arechederra replied to this statement by saying "I don't want to do those tests." The officer then explained that if Arechederra refused to perform the field sobriety tests, the officer would have to place him under arrest for operating a motor vehicle while intoxicated based on the many factors that indicated his intoxication level. The officer then asked Arechederra once more if he would perform the field sobriety tests. Arechederra again replied that he would not perform the tests. At that point, approximately 3:00 a.m., the officer informed Arechederra that he was under arrest and placed him in handcuffs in the back seat of the squad car.
¶9. The officer conveyed Arechederra to the City-County Building and arrived at 3:24 a.m. The officer issued Arechederra a citation for operating a motor vehicle while intoxicated. At 3:42 a.m., the officer read an informing the accused form to Arechederra and asked if Arechederra would submit to a chemical test of his breath. Arechederra refused. The officer then issued Arechederra a Notice of Intent to Revoke Operating Privilege form before taking him to the Dane County Jail, where Arechederra once again refused to submit to a chemical test of his breath.
¶10. In addition to the police report, the parties stipulated to the fact that the officer did not confiscate Arechederra's driver's license. The parties also stipulated to certain things Arechederra would say if he testified. The trial court also had before it a copy of the notice of intent to revoke form, which stated: "A hearing may be requested on the revocation of your operating privilege by mailing or delivering a written request within 10 days of the date of this notice to the following court." The notice, however, did not supply the name or address of the court.
¶11. After reviewing the evidence and hearing argument from the parties, the trial court held that the officer's failure to take Arechederra's license was a technical error, that the omission of the court name on the notice of intent to revoke form was also a technical error, and that Arechederra suffered no prejudice because of these two errors. The trial court found that Arechederra had declined to give a sample of his breath, and that he had the physical capability at the time he refused to submit to the test. The trial court then imposed a mandatory one-year revocation period, and Arechederra appealed.
DISCUSSION
¶12. On appeal, Arechederra presents the following four issues: (1) the errors on the notice of intent to revoke form and the officer's failure to confiscate Arechederra's driver's license were errors sufficient to deprive the trial court of personal jurisdiction; (2) even if these defects were mere technical errors, the State failed to prove that Arechederra was not prejudiced by the errors; (3) the officer did not have reasonable suspicion to stop Arechederra; and (4) the officer did not have probable cause to arrest Arechederra. We consider each argument in turn and affirm the trial court.
1.Errors in the Notice Given to Arechederra and the Failure to Confiscate Arechederra's Driver's License
¶13. Arechederra first argues that the officer's failure to confiscate Arechederra's license and the failure to include the name and address of the court where Arechederra could request a revocation hearing both constituted fundamental notice defects which deprived the trial court of personal jurisdiction. Arechederra also argues that when these errors are combined with the notice of intent to revoke form's failure to inform him that he could contest probable cause and the lawfulness of his arrest at the revocation hearing, the sum of these errors constituted a fundamental defect, depriving the trial court of personal jurisdiction. We disagree that any of these alleged errors, either individually or in the aggregate, deprived the court of personal jurisdiction.
¶14. Wisconsin Stat. §343.305(9)(a) states: "If a person refuses to take a test under sub. (3)(a), the law enforcement officer shall immediately take possession of the person's license and prepare a notice of intent to revoke, by court order under sub. (10), the person's operating privilege." Arechederra claims that the requirement in the statute that his license be confiscated immediately constitutes part of the notice requirement.
¶15. After reviewing Wis. Stat. §343.305(9), and a case Arechederra relies on, State v. Rydeski, 214 Wis. 2d 101, 571 N.W.2d 417 (Ct. App. 1997), we find no reason to conclude that confiscation of a person's driver's license is part of the notification process. The issues presented in Rydeski were whether Rydeski in fact refused to submit to a test and whether his subsequent willingness to take a test cured his initial refusal. There is no suggestion in either the statute or in Rydeski that gaining possession of the accused's license is a component of the notification process. It is the "notice" specified in §343.305(9)(a) that gives jurisdiction. See §343.305(9)(b).
¶16. Arechederra correctly says that in State v. Moline, 170 Wis. 2d 531, 489 N.W.2d 667 (Ct. App. 1992), the State asserted that the statute in question here requires that an "officer must immediately take possession of a person's license." Id. at 535-36. But Arechederra wrongly suggests that this assertion by the State in Moline constitutes a declaration that immediately taking possession of a person's license is a necessary component of the notification process. Nowhere does the Moline court suggest that the State ties confiscation of a license to the notice requirement. More to the point, Arechederra provides, and we discern, no reason to think that confiscation of a driver's license is part of the notification process.
¶17. Arechederra next claims that the omission on the notice form of...
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