Milwaukee County v. Proegler
| Decision Date | 18 March 1980 |
| Docket Number | No. 79-1080,79-1080 |
| Citation | 95 Wis.2d 614,291 N.W.2d 608 |
| Parties | COUNTY OF MILWAUKEE, Plaintiff-Respondent, v. John T. PROEGLER, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Shapiro, Gorsky & Dubin, Ltd., Milwaukee, on brief; and John F. Fuchs, Milwaukee, of counsel, for defendant-appellant.
E. Michael McCann, Dist. Atty., with whom on the brief was Daniel D. Blinka, Asst. Dist. Atty., for plaintiff-respondent.
Before DECKER, C. J., MOSER, P. J., and CANNON, J.
This is an appeal from a judgment of conviction entered on June 21, 1979, finding defendant guilty of operating a motor vehicle while under the influence of an intoxicant contrary to Milwaukee County, Wisconsin Ordinances Title I, § I adopting sec. 346.63(1), Stats.
On April 30, 1978, at approximately 3:52 a. m., deputies of the Milwaukee County Sheriff's Department found the defendant sleeping behind the steering wheel of a pickup truck parked partially on the right emergency ramp of I-43. The keys were in the ignition; the motor was running; the lights and heater were on. The automatic transmission shift lever was in the "park" position. The defendant testified to having parked his vehicle and fallen asleep at approximately 1:15 to 1:30 a. m. on the same date.
The defendant was conveyed to the Milwaukee County Sheriff's Department and submitted to a breathalyzer test. The test indicated that defendant's blood contained 0.2 percent by weight of alcohol at 4:39 a. m. Prior to the administration of the test, the defendant was advised as follows:
2. If you refuse to submit to the chemical test you will be given sixty (60) days in which to request a hearing into the matter of your refusal. If your refusal is found to be unreasonable or if you do not request a hearing or waive your right to a hearing, your operating privileges will be suspended for sixty (60) days.
5. If you are convicted of a violation of Section 346.63(1)(a) or an ordinance which is in conformity therewith, after having unreasonably refused to submit to a chemical test, your operating privilege will be revoked for a period of one (1) year.
Defendant was cited for operating a motor vehicle while under the influence and an initial appearance was scheduled for May 9, 1978. The defendant appeared only by counsel at that time. At the request of the county, the initial appearance was adjourned so that the defendant could personally appear. He did so on May 10, 1978, and the Assistant District Attorney informed the defendant as follows pursuant to sec. 343.27(1), Stats.:
(sic )
The defendant then moved to suppress the breathalyzer evidence on the ground that prior to taking the breathalyzer test he was not advised of the possible license revocation upon conviction. He claims that he should have been informed at the time of the arrest that his license could also be suspended upon conviction of the offense. The county court suppressed the results of the breathalyzer test. On appeal the circuit court summarily reversed the county court's order and remanded the matter to the Misdemeanor Division of the circuit court for trial. After a trial to the court on June 21, 1979, the defendant was found guilty of operating while under the influence of an intoxicant. The defendant's driving privileges were ordered revoked for ninety days and the defendant was ordered to attend Group Dynamics Traffic Safety School. Upon defendant's agreement to attend the school, the court stayed the ninety-day revocation order, conditioned on successful completion of the school.
The defendant raises four issues on appeal:
1. Did the failure to advise the defendant prior to administration of the breathalyzer test of the potential revocation of his driving privileges upon conviction of a violation of sec. 346.63(1), Stats., 1 constitute a denial of due process?
2. Did the failure to advise the defendant prior to the administration of the breathalyzer test of the potential revocation of his driving privileges upon conviction of a violation of sec. 346.63(1), Stats., constitute an illegal search and seizure?
3. Was the trial court's finding that the defendant operated his vehicle on a highway while under the influence of an intoxicant against the great weight and clear preponderance of the evidence?
4. Is sec. 346.63(3), Stats., unconstitutional in its application to this defendant?
The Wisconsin Statutes mandate revocation of an individual's operating privileges in the following instances. After a first conviction, any person convicted of violating sec. 346.63(1), Stats., or a local ordinance in conformity therewith shall have his license revoked "for not less than 3 months nor more than 6 months." Sec. 343.30(lq)(c), Stats. Two or more convictions of operating under the influence will result in the automatic revocation of operating privileges for one year. Sec. 343.30(1q)(d) and 343.31(1)(b), Stats. The Wisconsin Statutes also established certain procedural safeguards to accompany mandatory revocation of operating privileges. Under sec. 343.27(1) a person charged with such an offense must be informed by "the enforcement officer, city or village attorney or district attorney handling the case" that conviction for the offense will result in revocation of his license, and must sign a statement acknowledging this information. See also sec. 347.27(2) and (3), Stats.
Defendant challenges sec. 343.27(1), Stats., alleging that he should have been informed at the time of the arrest, of possible revocation upon conviction rather than at the initial appearance. The thrust of defendant's argument is that he was only half-advised of his rights at the time of his arrest and, therefore, could not give an informed consent to the administration of the breathalyzer test. Defendant bases his claim upon a denial of due process. As stated by defendant in his brief:
At no time is he (the defendant) advised that his license can be revoked merely upon conviction. The defendant (therefore) makes the decision to take the breathalyzer to avoid revocation, and in so doing yields evidence to the State which could lead to his revocation. He has been precisely half-advised.
The statute in question reads:
343.27 Accused to be Instructed as to Mandatory Revocation and Demerit Point Provisions. (1) Whenever a person is charged with a violation of law which requires upon conviction that his operating privilege be revoked, the enforcement officer, city or village attorney or district attorney handling the case shall inform him that a plea of guilty or no contest or a forfeiture of deposit under ch. 345 will result in such revocation and shall require him to sign a statement to the effect that he has been so informed.
We find defendant's argument to be without merit. First, defendant erroneously equates the term "arrest" with the term "charged." The terms are not synonymous. A person arrested without a warrant for violation of a traffic regulation must be issued a citation. Sec. 345.23, Stats. The citation must conform to the requirements set forth in sec. 345.11 and thereafter serves as the complaint or charging document. Sec. 345.40, Stats. A court acquires jurisdiction upon filing of the complaint with the clerk. Sec. 345.11, Stats. The Wisconsin Supreme Court discussed these procedures in State ex rel. Warrender v. Kenosha County Court, Branch III, 67 Wis.2d 333, 345, 227 N.W.2d 450, 455 (1975):
Under the Wisconsin Uniform Traffic Citation and Complaint form the traffic officer writes out the citation in quadruplicate. He gives the citation copy to the violator. This is merely a notice which tells the person that he has violated a certain law and fixes the court date. It is signed by the arresting officer. The complaint copy is forwarded to the court where it is signed by the so-called "court officer" upon information and belief.
The issuance of a formal charge therefore does not occur at the same time that defendant is arrested.
Second, the statute in question specifically refers to "city or village attorney or district attorney" as well as enforcement officers. The former do not become involved until the initial appearance stage of criminal proceedings.
Finally, the nature of defendant's procedural due process claim does not demonstrate lack of notice, a hearing, an opportunity to present evidence, or any other procedural protection which the fourteenth amendment might require.
Defendant further alleges that failure to advise him of the potential revocation of his driving privileges upon conviction constituted an illegal search and seizure. The basis of his argument is that he was not sufficiently advised to allow him to make an "informed or intelligent" decision to submit to a "seizure" of his breath, i. e., submitting to the breathalyzer. This argument is without merit.
Any person who drives or operates a motor vehicle in Wisconsin is deemed to have given consent to a test of his breath, blood or urine. Sec. 343.305, Stats. This consent is not optional, but is an implied condition precedent to the operation of a motor vehicle on Wisconsin public highways. The Wisconsin Supreme Court discussed this aspect of sec. 343.305 in Scales v. State, 64 Wis.2d 485, 493-94, 219 N.W.2d 286, 291-92 (1974):
It is not our understanding, however, that the implied consent law was...
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