State v. Albright
| Decision Date | 08 September 1980 |
| Docket Number | No. 80-340,80-340 |
| Citation | 298 N.W.2d 196,98 Wis.2d 663 |
| Parties | , 26 A.L.R.4th 1100 STATE of Wisconsin, Plaintiff-Respondent, v. Howard Quigg ALBRIGHT, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Waring R. Fincke and Shellow & Shellow, Milwaukee, for defendant-appellant.
Bronson C. La Follette, Atty. Gen., with whom on the brief was Albert Harriman, Asst. Atty. Gen., for plaintiff-respondent.
Before DECKER, C. J., MOSER, P. J., and CANNON, J.
Howard Albright appeals from a judgment entering a jury verdict of guilty of operating a motor vehicle while under the influence of an intoxicant, contrary to sec. 346.63(1), Stats., and an order denying his motions for directed verdict and a new trial. Albright alleges seven trial court errors including the reception of prosecution evidence of Albright's refusal to take a breathalyzer test. While finding this admission of evidence and three other alleged errors to be proper, we reverse on the basis of the prejudicial effect of remarks by the prosecutor in opening and closing arguments and testimony by the arresting officer about weapons confiscated from Albright.
Initially the Chief Judge denied defendant's motion for a three-judge panel. After reviewing the briefs, the Chief Judge, on his own motion, granted a collegial panel.
Albright was stopped by State Trooper Randall at approximately 1 a. m. on April 4, 1979. Randall had been passed by Albright who was driving his vehicle at 87 m.p.h. 1 Randall observed the vehicle change from the left lane to the right lane where the two right wheels struck the shoulder of the road. The trooper stopped the vehicle on an off-ramp and in a conversation with Albright, noticed a moderate odor of some type of alcoholic beverage. The officer also noticed that Albright's eyes were watery and red.
The officer testified that he asked Albright to perform some field tests. Albright recited the alphabet to the letter "K," at which point his voice trailed off and the officer could no longer understand him. Albright did not perform the balance test, despite the officer's instructions. Albright was able to walk in a heel-to-toe manner, but fell against the patrol car while turning around. Albright successfully touched the tip of his nose with both his right and left hand. 2 The officer also administered a preliminary breath test.
Upon completion of these tests, Albright was arrested and taken to the Milwaukee County Sheriff's Department where he refused to take a breathalyzer test. Before leaving the scene, the officer removed a length of chain from Albright's car. The officer stated he had removed a knife. His statement was interrupted by an objection from Albright's trial counsel, and thus, the place from which the knife was removed was not described by the officer. 3
Albright makes four claims of error which we find to be unsubstantiated. First, Albright contends that the trial court erred in refusing to grant his motion for a mistrial when the prosecutor told the jury in his opening statement that Albright had been offered but had refused to take a breathalyzer test, and in permitting the prosecutor to admit into evidence Albright's refusal to take the breathalyzer test.
The arresting officer testified that he informed Albright of the implied consent law, that Albright indicated he understood, that the officer asked him to take the breathalyzer, but that Albright did not take the test. Albright objected to introduction of this evidence on the grounds of relevance.
The Wisconsin Supreme Court has held that testimony of a police officer that the defendant refused to take any chemical tests for intoxication was admissible evidence. 4 Our supreme court reasoned that as the results of the chemical tests are admissible pursuant to sec. 885.235, Stats., evidence of refusal to take the tests is also admissible. 5
No Wisconsin case law, however, specifically addresses the issue of the relevancy of evidence of a refusal to submit to chemical tests for intoxication. Also, City of Waukesha was decided prior to the effective date of sec. 343.305, Stats., which imposes suspension of license on refusal to submit to chemical tests for intoxication. Therefore, we address the issue as one of first impression in this state.
Jurisdictions which have considered the relevancy of refusal evidence have reached differing results. We find those opinions which hold the evidence relevant and admissible to be persuasive. Several states which hold such evidence inadmissible have statutes clearly distinguishable from Wisconsin statutes.
In People v. Sudduth, 65 Cal.2d 543, 55 Cal.Rptr. 393, 421 P.2d 401 (1966), the arresting officer testified that Sudduth refused to take a breathalyzer test and the prosecutor commented on this evidence in argument. The jury was instructed:
Whether or not (refusal to take a breathalyzer test) shows a consciousness of guilt and the significance to be attached to such a circumstance are matters for your determination. 6
Chief Justice Traynor, writing for a unanimous court, held that admission of test refusal evidence and the jury instructions were proper.
The supreme court of Ohio agrees:
Thus, it is reasonable to infer that a refusal to take such a test indicates the defendant's fear of the results of the test and is consciousness of guilt, especially where he is asked his reasons for such refusal and he gives no reason which would indicate that his refusal had no relation to such consciousness of guilt. 7
Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." 8
A reasonable inference from refusal to take a mandatory breathalyzer test is consciousness of guilt. The person is confronted with a choice of the penalty for refusing a test, or taking a test which constitutes evidence of his sobriety or intoxication. Perhaps the most plausible reason for refusing the test is consciousness of guilt, especially in view of the option to take an alternative test.
Before considering cases holding that refusal evidence is irrelevant, we note that use of test refusal evidence for the purpose of showing consciousness of guilt is constitutionally permissible. The only rationale for a rule prohibiting comment on a refusal would be that there is a right to refuse the test. 9 Wisconsin drivers have no constitutional right to refuse to take the breathalyzer. 10 There is no self-incrimination within the protections of the fifth amendment of the United States Constitution, or article I, sec. 8 of the Wisconsin Constitution. These provisions protect against compulsion to testify against oneself. The evidence obtained by a breathalyzer test, though incriminating, is not testimony or evidence relating to a communicative act. 11 Our supreme court has twice held that "admission of evidence of the defendant's refusal to furnish a sample of urine for a chemical test did not violate the defendant's constitutional privilege against self-incrimination (Wis.Const., art. I, sec. 8)." 12 In the context of refusal to take a chemical test to determine the amount of alcohol in a person's blood, there is no difference between the alternative chemical tests. The same rule applies to all.
Although some jurisdictions have held that refusal evidence is irrelevant, almost all have statutory schemes distinguishable from Wisconsin. Four of those states have adopted statutes expressly excluding evidence of refusal to take the breathalyzer test in proceedings for driving while intoxicated. 13 Nine other jurisdictions holding refusal evidence inadmissible have statutes or case law which recognize a right to refuse to take chemical tests. 14 In those states, sanctions for opting to refuse the tests would erode the constitutional or statutory right to refuse. 15 Jurisdictions which do not recognize a right to refuse breathalyzers or other chemical tests have held refusal evidence to be relevant and admissible. 16
Wisconsin clearly does not recognize a right to refuse the test. "Any person who drives or operates a motor vehicle upon the public highways of this state ... shall be deemed to have given consent to tests of his or her breath, blood or urine ...." 17 "Any such test shall be administered upon the request of a law enforcement officer." 18 A driver's only option upon arrest is to "recant the consent previously given." 19 Our conclusion of admissibility of evidence of chemical test refusal is consistent with the rationale of the nationwide pattern.
Albright also contends that the refusal evidence should be held inadmissible under the principle of expressio unius est exclusio alterius. The legislature requires the officer to inform a driver of the sanction of license revocation for six to twelve months for refusal to take chemical tests for intoxication. 20 The driver is not informed that evidence of refusal is admissible in a proceeding for driving while intoxicated. Therefore, Albright contends, that sanction was not intended by the legislature.
We disagree. The legislature established an implied consent to take a breathalyzer with very limited exceptions based on physical disability or lack of probable cause by the officer to believe the driver was operating under the influence of an intoxicant. 21 "(T)he clear policy of the (implied consent) statute is to facilitate the identification of drunken drivers and their removal from the highways (and) the statute must be construed to further the legislative purpose." 22 Evidence of refusal is relevant and constitutionally admissible. We do...
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