State v. Carlson

• Decision Date: 19 December 2001
• Docket Number: No. 01-1088.,01-1088.
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Michael J. CARLSON, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

250 Wis.2d 562

2002 WI App 44

641 N.W.2d 451

STATE of Wisconsin, Plaintiff-Respondent, v. Michael J. CARLSON, Defendant-Appellant.¹

No. 01-1088.

Court of Appeals of Wisconsin.

Submitted on briefs October 15, 2001.

Decided December 19, 2001.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Christopher A. Mutschler of Anderegg & Mutschler, LLP, Fond du Lac.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Michael E. O'Rourke of Green Lake District Attorney's Office, Green Lake. Before Nettesheim, P.J., Anderson and Snyder, JJ.

¶ 1. ANDERSON, J.

Michael J. Carlson appeals a circuit court order finding "unreasonable"² his refusal to submit to a chemical test requested pursuant to WIS. STAT. § 343.305 (1999-2000).³ Carlson seeks dismissal of his refusal conviction based on claims of procedural error. First, he argues that the court lacked the authority to appoint, or to accept the appointment of, a special prosecutor in this case because the statute authorizing the use of special prosecutors is limited to cases that are not civil. Second, he argues that the refusal charge should be dismissed with prejudice because he was sanctioned for the refusal before his hearing was granted.

¶ 2. The facts are undisputed. Carlson was charged in Green Lake County for operating a motor vehicle while under the influence of an intoxicant contrary to WIS. STAT. § 346.63(1)(a). Subsequent to his arrest, Carlson allegedly refused a request by the arresting officer to provide a blood sample for chemical analysis pursuant to Wisconsin's implied consent law, WIS. STAT. § 343.305. Carlson then timely requested a hearing on whether his alleged refusal to submit to an implied consent test was improper. The trial court, however, denied the request as untimely on the grounds that it believed weekends and holidays were counted when determining whether a request for a hearing had been received within the statutorily allotted ten-day period. The trial court ordered revocation of Carlson's license to begin thirty days after the date of his refusal pursuant to § 343.05(10). Carlson's attorney filed a letter memorandum regarding the method for counting days under § 343.305(9), urging the court to reconsider its position. The court did not reverse itself. ¶ 3. Shortly thereafter, the clerk of courts attended a seminar at which she learned that the method for counting elapsed days under the implied consent law previously suggested by Carlson's attorney was correct. The trial court then issued an order reversing its revocation order; at this point, Carlson's license had been revoked for a significantly brief period of time, nineteen days.

¶ 4. A hearing was held on November 27, 2000, regarding whether Carlson's alleged refusal to submit to chemical testing was improper. At the hearing, the State was represented by a special prosecutor, the City of Markesan City Attorney appointed by the trial court. Carlson objected to the court's assignment of a city attorney as a special prosecutor for the State of Wisconsin on the ground that the statute that permits the court to assign special prosecutors does not permit assignment in cases that are purely civil. Carlson objected to the assignment as a procedural issue, and as a remedy requested that the refusal charge be dismissed and that evidence of the refusal be suppressed at trial. The court denied Carlson's objection to the appointment stating that it was the "court['s] policy" to appoint the city attorney. Carlson raised a second procedural objection claiming that his due process rights were violated because he had been prejudiced by the court's erroneous decision to deny him a refusal hearing prior to his driver's license being revoked. As a remedy, he asked for dismissal of the refusal charge as well as suppression at trial. After considering both grounds for objection, the refusal hearing proceeded and the court found Carlson's refusal to be improper and resolved all other issues adversely to Carlson. Carlson appeals.

¶ 5. At the outset, we note that on appeal Carlson does not challenge the trial court's finding that his refusal was improper. Rather, Carlson renews the two procedural challenges he made at the refusal hearing. First, he argues that the court lacked the authority to appoint a special prosecutor in this case because the statute authorizing the use of special prosecutors is limited to cases that are not civil. Carlson is incorrect. He calls to our attention only a part of the statute and, in so doing, he ignores that a complete reading gives the court almost unfettered authority to appoint a special prosecutor to perform "the duties of the district attorney." WIS. STAT. § 978.045(1r).

[1-3]

¶ 6. The construction of a statute and its application to undisputed facts are questions of law which we determine de novo. Smith v. Dodgeville Mut. Ins. Co., 212 Wis. 2d 226, 233, 568 N.W.2d 31 (Ct. App. 1997). The guiding principle in statutory construction is to discern legislative intent. State v. Irish, 210 Wis. 2d 107, 110, 565 N.W.2d 161 (Ct. App. 1997). We first look to the language of the statute itself and attempt to interpret it based on "the plain meaning of its terms." State v. Williquette, 129 Wis. 2d 239, 248, 385 N.W.2d 145 (1986).

¶ 7. The authority to appoint a special prosecutor is derived from WIS. STAT. § 978.045, which provides in pertinent part:

(1g) A court on its own motion may appoint a special prosecutor under sub. (1r) or a district attorney may request a court to appoint a special prosecutor under that subsection....

....

(1r) Any judge of a court of record, by an order entered in the record stating the cause therefor, may appoint an attorney as a special prosecutor to perform, for the time being, or for the trial of the accused person, the duties of the district attorney. An attorney appointed under this subsection shall have all of the powers of the district attorney. The judge may appoint an attorney as a special prosecutor at the request of a district attorney to assist the district attorney in the prosecution of persons charged with a crime, in grand jury or John Doe proceedings or in investigations.... (Emphasis added.)

¶ 8. The plain language of WIS. STAT. § 978.045 authorizes two distinct ways in which a court may appoint a special prosecutor.⁴ This is signified by the use of the word "or." Subsection (1g) states that a court may appoint a special prosecutor either on its own motion "or" when a district attorney makes a request that the court do so. Carlson directs us to the sentence in the statute that authorizes the court's appointment of a special prosecutor when it is at the request of a district attorney; this is but one of two authorized ways a court may appoint a special prosecutor. See § 978.045(1r). Carlson ignores the preceding sentence that authorizes the court to appoint a special prosecutor on its own motion. See id. We agree with Carlson that the part of the statute that he relies upon for his argument lists, and arguably restricts, the circumstances in which a court may appoint a special prosecutor.⁵ However, any restriction, if one exists, is triggered only when the appointment is made at the request of a district attorney, not when the appointment is made by a court on its own motion.⁶

[4]

¶ 9. In the case at bar, the appointment was made by the court on its own motion. A plain reading of the statute tells us that when a court makes this appointment on its own motion, all that is required of the court is that it enter an order in the record "stating the cause therefor." WIS. STAT. § 978.045(1r). Then, the appointed special prosecutor may "perform, for the time being, or for the trial of the accused person, the duties of the district attorney. An attorney appointed under this subsection shall have all of the powers of the district attorney."⁷Id. In short, if a court makes a special prosecutor appointment on its own motion, it is constrained only in that it must enter an order in the record stating the cause for the appointment. Here, the court fulfilled its duty by stating on the record that it was appointing a special prosecutor and giving its reasons why:

The refusal hearing would normally be conducted by the district attorney. And we have run into problems in this county where that essentially vests the defense with two kicks at the same cat. And so as a matter of maintaining a fair playing field, we have simply requested ... a special appointment so that the district attorney doesn't have to learn the whole case in order to go through a refusal hearing, only to turn the case back, if that's what the outcome is. So that's the court policy or practice....

Thus, the court acted within its discretion when it appointed a special prosecutor to handle Carlson's refusal hearing.⁸

¶ 10. Carlson's second argument is that the refusal charge should have been dismissed with prejudice because he was sanctioned for the refusal by having his license revoked for nineteen days before his hearing was granted. Carlson claims that we must reverse his conviction because the trial court made a "fundamental" error when it failed to grant him a predeprivation refusal hearing based upon its erroneous belief that his request for a hearing was untimely. In the alternative, Carlson argues that if we find that the trial court error was not fundamental but technical in nature, we should nonetheless reverse because he was prejudiced by the error and therefore a sanction is in order for the technical error committed by the court. For the reasons set forth below, we do not dismiss.

[5, 6]

¶ 11. At the threshold, Carlson is correct when he asserts that, once issued, a driver's license is considered a property interest under the protection of the Due Process Clause. Bell v. Burson, 402 U.S. 535, 539 (1971). As a general rule, due process requires that an individual be given notice and an...