State v. Dums, 88-1154-CR
| Decision Date | 21 February 1989 |
| Docket Number | No. 88-1154-CR,88-1154-CR |
| Citation | 149 Wis.2d 314,440 N.W.2d 814 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Peter J. DUMS, d Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Robert P. Rusch, on the briefs, of Rusch & Rusch Law Office, S.C., Medford, for defendant-appellant.
Donald J. Hanaway, Atty. Gen., and Thomas J. Balistreri, Asst. Atty. Gen. of Wisconsin Dept. of Justice, on the brief, Madison, for plaintiff-respondent.
Before CANE, P.J., and LaROCQUE and MYSE, JJ.
This is an interlocutory appeal from a nonfinal trial court order upholding the constitutionality of sec. 967.055(2), Stats. Peter J. Dums, charged with a second offense of operating a motor vehicle while under the influence of an intoxicant, contends that this subsection of the statute violates the separation-of-powers doctrine and fails to contain standards necessary for proper implementation. Because the statute does not result in substantial encroachment by the legislature or judiciary on an executive function and because it contains an appropriate standard to guide the trial court in reviewing the prosecutor's motion to dismiss or amend an OWI charge, we affirm.
A state trooper issued Dums a citation for operating a motor vehicle while under the influence of an intoxicant. When the state trooper discovered that this had been Dums's second offense, the matter was referred to the county's district attorney for the issuance of a long form criminal complaint, charging Dums with OWI, second offense. Without making an independent inquiry into the underlying facts, the district attorney prepared, signed, and filed a long form criminal complaint charging Dums with OWI.
Subsequently, under sec. 967.055(2), the district attorney moved to amend the charge to operating left of the centerline, a civil forfeiture. Pursuant to sec. 967.055(2), the court may approve the application to amend or dismiss only if it finds that the proposal is consistent with the public's interest in deterring the operation of motor vehicles by persons who are under the influence of an intoxicant. In support of his application, the district attorney presented eleven reasons to the court why the charge should be amended. Some of the reasons included the level of Dums's blood alcohol concentration at .103%; the fact that no independent corroboration of Dums's intoxicated condition existed; and the discouraging effect of an acquittal Dums's trial would have on future OWI prosecutions.
Notwithstanding these reasons, the trial court rejected the proposed amendment after determining it was inconsistent with the public's interest in deterring persons from operating a motor vehicle while under the influence of an intoxicant. Specifically, the trial court concluded that there was no contention the Intoxilyzer machine was not in proper working condition or operated by an unqualified person and that a breath alcohol concentration of .11% provided a triable fact. As a result of this decision, Dums challenged the constitutionality of sec. 967.055(2). The trial court upheld the constitutionality of the statute, and Dums appealed to this court. 1
A statute is presumed to be constitutional, and a heavy burden is placed on the party challenging its constitutionality. Milwaukee County v. Proegler, 95 Wis.2d 614, 629-30, 291 N.W.2d 608, 615 (Ct.App.1980). The challenger must demonstrate the unconstitutionality of the act beyond a reasonable doubt Every presumption must be indulged to sustain the law if at all possible and, wherever doubt exists as to a legislative enactment's constitutionality, it must be resolved in favor of constitutionality. This court has often affirmed the well-established presumption of constitutionality that attaches itself to all legislative acts....
Id. (quoting State ex rel. Hammermill Paper Co. v. La Plante, 58 Wis.2d 32, 46, 205 N.W.2d 784, 792 (1973)). "If the court can conceive any facts on which the legislation could reasonably be based, it must hold the legislation constitutional." Id. (quoting State ex rel. Strykowski v. Wilkie, 81 Wis.2d 491, 506, 261 N.W.2d 434, 441 (1978)). We owe no deference to the trial court when determining the constitutionality of a statute. Mobil Oil Corp. v. Ley, 142 Wis.2d 108, 111, 416 N.W.2d 680, 682 (Ct.App.1987).
Dums contends that sec. 967.055(2) violates the separation-of-powers doctrine because the statute mandates judicial interference in the exercise of executive power. Section 967.055(2) provides in part:
Dismissing or amending charge. ... if the prosecutor seeks to dismiss or amend a charge ... the prosecutor shall apply to the court. The application shall state the reasons for the proposed amendment or dismissal. The court may approve the application only if the court finds that the proposed amendment or dismissal is consistent with the public's interest in deterring the operation of motor vehicles by persons who are under the influence of an intoxicant....
Wisconsin's separation-of-powers principle prohibits a substantial encroachment by one branch of government on a function that has been delegated to another branch. State ex rel. Unnamed Petitioners v. Connors, 136 Wis.2d 118, 121, 401 N.W.2d 782, 783 (1987). 2 The issue in separation-of-powers cases is whether the statute in question "materially impairs or practically defeats" the proper function of a particular branch and the exercise of powers delegated to it. Id. at 122, 401 N.W.2d at 783. A statute may not allow one branch of government to unduly burden or substantially interfere with another branch's exercise of authority. Id. at 122, 401 N.W.2d at 783-84. Governmental branches nevertheless may share similar powers without interfering with another branch's exercise of authority. See State v. Washington, 83 Wis.2d 808, 816, 825-26, 266 N.W.2d 597, 601, 605-06 (1978).
Wisconsin case law has repeatedly held that the discretion whether to charge and how to charge vests solely with the district attorney. Unnamed Petitioners, 136 Wis.2d at 125-26, 401 N.W.2d at 785. It is also recognized that the district attorney's broad discretion whether to commence a prosecution is almost limitless. Id. at 129, 401 N.W.2d at 786; see also State v. Kenyon, 85 Wis.2d 36, 45, 270 N.W.2d 160, 164 (1978). However, once prosecution has been commenced, the charge cannot be dismissed sua sponte by the district attorney because it becomes subject to court control. Unnamed Petitioners, 136 Wis.2d at 129, 401 N.W.2d at 786; see also Kenyon.
After prosecution is commenced, the trial court under its own power may refuse a prosecutor's motion to dismiss or amend the charge if it determines the motion was not in the public interest. Kenyon, 85 Wis.2d at 45, 270 N.W.2d at 164. In Wisconsin, it is equally clear that the legislature may, if it desires, spell out the limits of the prosecutor's discretion and can define the limits of that discretion. Id. at 42, 270 N.W.2d at 163. Thus, a trial court may review the exercise of prosecutorial discretion to terminate or amend pending prosecution pursuant either to its own power or to a legislative standard for limited judicial supervision of prosecutorial motions to dismiss or amend.
Section 967.055(1)(a) states that the statute's purpose is to encourage the vigorous prosecution of offenses concerning the operation of motor vehicles by drivers under the influence of alcohol or controlled substances. By enacting sec. 967.055(2), the statute in question, the legislature mandated judicial supervision of prosecutorial motions to dismiss or amend OWI charges to ensure the vigorous prosecution of drunk driving offenses. Thus, when the court scrutinizes the district attorney's application to amend or dismiss the charge, it is merely executing both its and the legislature's permitted shared power with the executive branch under the separation-of-powers doctrine.
We also reject Dums's argument that the court must accept at face value the prosecutor's reasons to dismiss or amend the OWI charge. See United States v. Cowan, 524 F.2d 504 (5th Cir.1975). Without violating the separation-of-powers doctrine, sec. 967.055(2) requires further inquiry in light of the reasons advanced by the prosecutor. This inquiry's scope also legitimately includes examining the public interest in light of deterring drunk driving offenses.
Dums also asserts that the statute must fail under the separation-of-powers...
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