State v. Denure
| Decision Date | 24 January 2002 |
| Docket Number | 01-1102 |
| Parties | State of Wisconsin, Plaintiff-Respondent, v. Dennis A. Denure, Defendant-Appellant. AppealSTATE OF WISCONSIN IN COURT OF APPEALS DISTRICT IV |
| Court | Wisconsin Court of Appeals |
APPEAL from a judgment of the circuit court for Iowa County: WILLIAM D. DYKE, Judge. Reversed and cause remanded with directions.
1. DYKMAN, J.1
Dennis Denure appeals from a judgment of conviction for operating a motor vehicle with a prohibited blood alcohol concentration. Denure argues that the circuit court erred when it denied his motion to suppress evidence obtained after a subpoena was issued under Wis. Stat. 968.135. He contends that probable cause does not support the subpoena. We agree and therefore reverse.
2. On January 22, 2000, Dennis Denure was traveling southbound on Highway 23 in Iowa County and Larry Roberts was traveling northbound.2 Denure and Roberts collided with each other around midnight. Roberts was killed and Denure was taken to the Dodgeville hospital with life-threatening injuries.
3. Deputy Lin Gunderson arrived at the scene of the accident soon after it occurred. Due to the snow and ice that was packed on the highway, Gunderson was unable to locate any skid marks. Sergeant Steven Michek also came to the scene. Gunderson asked Michek to take statements from witnesses, and then followed Denure to the hospital.
4. Michek spoke to Ariel Thomas and Bobbie Turner, who had been driving directly behind Roberts before the accident. Thomas stated that Roberts' car had drifted completely into the lane of oncoming traffic. As Denure's car approached, however, Thomas said that Roberts "appear[ed] to get back in his lane" and Denure's car "was too close to the line or just over the line before impact."
5. Turner, who was Thomas' passenger, similarly stated that Roberts had been driving a full car lane to the left of the dividing line, but had "gotten all or partly back in the right lane." However, she also stated that Thomas had slowed down as Denure was approaching, increasing the distance between his car and Roberts' car, so it was difficult to see through the snow where both Roberts' and Denure's cars were upon impact.
6. Ed Lanka was driving just behind Thomas and Turner. He also stated that Thomas had been driving in the left lane but then moved back into the right lane. Lanka did not see the impact because it occurred around a curve.
7. Michek returned to the scene later that same day to look for signs of the accident. He found a "gouge" in the payment on the southbound lane of traffic and concluded that the gouge mark was caused by Denure's car. Based on this mark, Michek concluded that the accident had occurred in the southbound, or Denure's, lane of traffic.
8. At the hospital, Gunderson spoke to the paramedics who had transported Denure. He asked them if they had noticed the smell of alcohol on Denure's breath and they said they had not. Gunderson asked Dr. Everett Lindsay, who had attended Denure, the same question. Dr. Lindsay stated that he had smelled the odor of intoxicants on Denure.
9. Based upon this, Gunderson read Denure the informing the accused form pursuant to Wis. Stat. 343.305 and asked Denure if he would submit to a blood test. Denure "mumbled" yes to Dr. Lindsay. Gunderson then asked Denure "if he remembered anything about the accident" and Denure said he did not. Due to the serious nature of Denure's injuries, hospital staff transported Denure to the University of Wisconsin Hospital in Madison. Before this, Dr. Lindsay drew blood from Denure and gave a sample to Gunderson. Gunderson never placed Denure under arrest.
10. Gunderson sent the blood to the state hygiene lab for testing, and the results indicated that Denure's blood ethanol concentration was 0.231. Blood was also drawn from Roberts. His ethanol concentration was 0.271.
11. The State charged Denure with one count each of driving while under the influence of an intoxicant under Wis. Stat. 346.63(1)(a) and driving with a prohibited alcohol concentration under 346.63(1)(b). Denure moved to suppress the blood test results, arguing that Gunderson lacked probable cause to request that Denure submit to a blood test under Wis. Stat. 343.305. At the motion hearing, the State conceded that Denure "would win the motion." Specifically, the district attorney stated:
I will technically for the record concede that there was no arrest in this case by the law enforcement officer; thus the blood draw done by law enforcement doesn't technically fall within the terms of search incident to arrest and would probably have been thrown out; thus I am going to concede that.
Accordingly, the circuit court granted Denure's motion to suppress, but did not dismiss the case because Peterson stated "I'm not conceding on the probable cause issue." Rather, the court allowed the State to subpoena the hospital records regarding Denure's blood test under Wis. Stat. 968.135. After the records were obtained, Denure again moved to suppress.3 He argued that there was no probable cause to issue the subpoena.4 The circuit court denied the motion, concluding that "the combined weight of [City of Muskego v.] Godec, [State v.] Jenkins, [State v.] Swift, and [State v.] Kaisan, and the statute addressing the admissibility of the blood test weigh sufficiently strong to deny the Defendant's motion to suppress."
12. The court found Denure guilty of both Wis. Stat. 346.63(1)(b) as a second offense and 346.63(1)(a), but then dismissed the operating under the influence charge. Denure appeals.
Opinion13. Because the State has conceded that the blood draw was unlawful, we address only whether the hospital's records were lawfully obtained through subpoena. Wisconsin Stat. 968.135 provides in part: "Upon the request of the attorney general or a district attorney and upon a showing of probable cause under s. 968.12, a court shall issue a subpoena requiring the production of documents, as specified in s. 968.13(2)." Wisconsin Stat. 968.12, in turn, provides the standard for issuing search warrants. The sole issue is whether the district attorney made a proper showing of probable cause.
14. The standard for upholding an issuing judge's finding of probable cause under Wis. Stat. 968.12 is the same as the standard under the Fourth Amendment and article I, 11: the judge must have been apprised of sufficient facts to excite an honest belief in a reasonable mind that the objects sought are linked with the commission of a crime, and the objects sought will be found in the place to be searched. State v. Swift, 173 Wis. 2d 870, 883, 496 N.W.2d 713, (1993). Our review is not de novo, but rather we accord "great deference" to the issuing judge's determination that probable cause exists. Id.
15. The State provides a list of twelve facts included in an affidavit that it contends provided the issuing judge with probable cause to issue a subpoena:
1.Denure was involved in a two car head-on collision.
2.The accident occurred on Tuesday night around midnight.
3.Deputies did not notice any skid marks at the accident scene.
4.The driver of the other car, Mr. Larry Roberts, died.
5.Dr. Lindsey, treating doctor for Denure, told the deputy that Dr. Lindsey smelled an odor of intoxicants on the defendant.
6.Deputy Gunderson had asked medical personnel who transported the defendant the same question and they responded negatively.
7.Deputy Gunderson read Denure the Informing the Accused form, asking if Denure would consent to a blood test. Denure mumbled "yes."
8.Gunderson was then told Denure's injuries were life threatening and Gunderson removed himself as he felt he was in everyone's way. Thus, Deputy Gunderson was unable to have Mr. Denure perform standard field sobriety tests.
9.Witness Ariel Thomas stated that it looked like Mr. Denure's car was "too close to the line or just over the line before impact."
10.Witness Bobbie Turner indicated that "the car in front of her (Mr. Roberts') had gotten all or partly back in the right lane." Turner further indicated that "the cars could have been in the center of the road or all to the right lane."
11.Witness Ed Lanka stated that he did not see the accident, but that prior to the accident Mr. Roberts' car moved into the left lane and then back into the right lane.
12.Deputy Michek ultimately found a gouge mark leading him to believe that the accident took place in the southbound lane, or the lane that Denure was traveling in.
16. That the State has provided twelve facts is insignificant. The question is whether the facts demonstrate that probable cause existed. A number of these facts, however, provide no indication that the hospital records would show Denure was driving while intoxicated on the evening of the accident. That the accident was a two-car head-on collision and that Larry Roberts died certainly demonstrate the severity of the crash, but suggest nothing regarding whether Denure was under the influence of alcohol or drugs.
17. Also, for the purpose of this analysis, it is of no moment that Denure may have consented to a blood test at the hospital in Dodgeville. The State has never alleged that the blood sample it obtained initially was admissible because Denure gave his consent; the State has therefore abandoned that issue. The only issue here is whether probable cause supports issuance of the subpoena. It is likewise irrelevant that Gunderson may have been unable to perform field sobriety tests due to the seriousness of Denure's condition. Although case law suggests the importance of field sobriety tests to support probable cause, see State v. Swanson, 164 Wis. 2d 437, 453-54 n.6, 475 N.W.2d 148 (1991), the State has pointed to no authority indicating that the probable cause standard should be lowered when requiring such tests is impractical.
18. Second, some of the facts referred to by the State actually undermine a conclusion that probable cause existed. For instance, the State notes that when...
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