State v. Bolstad, 84-229-CR
| Decision Date | 28 June 1985 |
| Docket Number | No. 84-229-CR,84-229-CR |
| Citation | 370 N.W.2d 257,124 Wis.2d 576 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. James BOLSTAD, Defendant-Appellant-Petitioner. |
| Court | Wisconsin Supreme Court |
Steven D. Phillips, Asst. State Public Defender, for defendant-appellant-petitioner.
Christopher G. Wren, Asst. Atty. Gen., argued, for plaintiff-respondent; Bronson C. La Follette, Atty. Gen., on brief.
This is a review of an unpublished decision of the court of appeals filed September 25, 1984, which affirmed a judgment convicting James Bolstad of a criminal charge of operating a motor vehicle while under the influence of an intoxicant (OMVWI). The case was tried in the circuit court for La Crosse county, Peter G. Pappas, circuit judge. We reverse the decision of the court of appeals, 120 Wis.2d 683, 357 N.W.2d 566, affirming the circuit court and remand to the circuit court for a new trial.
The record shows that Bolstad, upon being arrested upon probable cause that he was intoxicated while driving a motor vehicle, refused to allow an alcohol test to be taken. Pursuant to sec. 343.305(8), Stats., the arresting officer informed the circuit court of that refusal. Bolstad was then given a "refusal hearing," as set forth in sec. 343.305(3)(b)5. It was found that he had refused the test for reasons not permitted by the statute. After a hearing, Bolstad was found to be a person subject to "assessment and a driver safety plan." Sec. 343.305(3)(b)6. His operator's license was suspended for failure to submit to an alcohol test under the "implied consent law."
Subsequently he was brought to trial on the intoxicated driving charge (sec. 346.63, Stats.) as a second offender and was convicted. Upon conviction he appealed to the court of appeals, claiming that he was denied due process because the trial court refused to allow him to present evidence of his reasons for refusal to permit the blood test. The court of appeals held that the trial court erred in refusing to admit such evidence, but it found the error to be harmless. It affirmed the conviction. While we agree that the trial court erred in excluding the evidence of the reasons for Bolstad's refusal to take the blood test, we do so on a different basis. Because we conclude that the trial court excluded relevant evidence which is admissible under the Wisconsin Code of Evidence, we need not reach the question of whether due process was violated by the nonadmission of the evidence. 1 We part company with the court of appeals on its conclusion that the error was harmless. Because we conclude the error was prejudicial, we reverse and remand to the trial court for a retrial of James Bolstad.
The facts show that Bolstad was backing out of a parking space at approximately 2 a.m. on August 15, 1983, in the city of La Crosse when two police officers saw him strike the side of an adjacent car. Police Officer Paul Weibel confronted Bolstad and asked him to perform various field sobriety tests. From these tests, Weibel concluded that Bolstad was intoxicated. He was arrested and transported to the police station. After the citation required under sec. 343.305(2)(b), Stats., was issued, Bolstad initially agreed to a breath test for blood alcohol. Almost immediately, however, Bolstad commenced gagging and choking, and he complained of stomach pains. It appeared to Officer Weibel that Bolstad was about to vomit. Under these circumstances, a breathalyzer test was not appropriate. 2
Bolstad informed Weibel that he had been having violent stomach pains and had been vomiting blood. Bolstad agreed to Officer Weibel's suggestion that he immediately see a physician and have a blood test taken for alcohol. Weibel transported Bolstad to the St. Francis Medical Center for that purpose.
The officer testified that, just as a hospital technician was preparing to take a blood sample, Bolstad began screaming and demanded that only a doctor draw the blood sample. Despite Weibel's warning that the failure to allow the technician to draw the blood would make Bolstad's conduct a "refusal," Bolstad persisted in not allowing the sample to be taken.
Prosecution witnesses generally corroborated this sequence of events. Although the defendant testified in his own behalf, he did not offer evidence of his reasons for refusal to take the test. It is clear that an earlier ruling of the court prevented Bolstad from introducing any such evidence.
The question of whether any explanation for the refusal to take the blood test would be admitted was raised immediately after the prosecutor's opening statement. There was information available to the district attorney and to the trial judge (who had conducted the refusal hearing) that Bolstad did have stomach ulcers which required surgery a few days after his arrest. The prosecutor, out of the presence of the jury, asked that such information not be allowed in evidence as a basis for Bolstad's refusal to take the test unless the prosecution had full access to Bolstad's medical records. Whether this condition would have been agreeable to Bolstad we do not know, for the judge promptly intervened, stating that no evidence whatsoever would be admitted dealing with reasons for refusal to take the blood test. Judge Pappas said:
The trial judge ruled that, once "refusal" had been found in the hearing conducted for that purpose and the refusal was not because of physical inability to submit to the test--the sole statutory basis for exoneration--the matter was foreclosed from any further discussion whether the refusal was reasonable or unreasonable.
Trial counsel for Bolstad argued that for the judge to so hold would convert the judgment of the refusal hearing--which is admissible--into an irrebuttable presumption of guilt. He pointed out that, under State v. Albright, 98 Wis.2d 663, 298 N.W.2d 196 (Ct.App.1980), the refusal to take the test was a fact from which a jury could draw the inference that the refusal was based upon an awareness of guilt--that the reason why it was admissible was precisely because such an inference reasonably could be drawn. He argued that he should therefore have the right to present evidence which would show that the refusal could be explained for reasons other than the fear or consciousness of the defendant that the blood test would prove guilt. The trial judge rejected this argument. The defendant's motion for mistrial was denied. It is conceded that it was because of this ruling early on in the trial that defendant did not specifically attempt to explain on direct examination his reasons for refusing to take the blood test. Also, during cross-examination, when the prosecutor asked Bolstad, "Why didn't you take the test?" the trial judge interrupted the examination. When the fact was brought out that Bolstad had taken a blood test for purposes of making a blood count at the hospital, not related to the test for blood alcohol, the judge sua sponte pointed out that:
When defense counsel on cross-examination attempted to further pursue the question of whether Bolstad believed, or did not believe, that the small sample of blood drawn for medical purposes was for alcohol testing, the judge did not allow the question to be asked.
At the close of the jury trial, Bolstad renewed his motion for mistrial and made an offer of proof. Had the evidence been admitted, it would have tended to show that Bolstad believed that the sample drawn under the supervision of a physician, only for the purpose of a blood count, was available for determination of blood alcohol content. 3 He would have explained that he did not refuse the blood alcohol test per se but, in view of his condition, insisted that the drawing of blood be by a physician. The offer of proof was refused by the judge, and the motion for mistrial was again denied.
At this juncture in the trial, the judge restated his position. He said:
"[A] refusal is a refusal and at trial we do not get into any discussion as to why the defendant thinks that he didn't have to take it, or his confusion."
The trial judge then proceeded to instruct the jury in the following words as relative to the problem here:
After four and one-half hours of deliberation, the jury returned a verdict of guilty. Bolstad, as a second offender, was sentenced to ten days in jail and ordered to pay a fine and costs totalling $765. The jail sentence has been stayed pending appeal.
On appeal Bolstad claimed a right to a new trial, because his due process right to present evidence was violated when the trial court refused to let him explain the reasons why he refused to give blood. The court of appeals, in analyzing the trial court proceedings, concluded the trial judge, in refusing to admit the evidence, relied on a theory of collateral estoppel. The court of appeals, citing State ex rel. Flowers v. H & SS Dept., 81 Wis.2d 376, 387, 260 N.W.2d 727 (1978), denominated this reliance as error, because relitigation of an issue is precluded in a second proceeding on an estoppel theory only " 'where the matter raised in the second suit is identical in all respects with that decided in the first proceeding and where the controlling facts and applicable legal rules...
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