State v. Luedtke
| Decision Date | 11 June 2014 |
| Docket Number | No. 2013AP1737–CR.,2013AP1737–CR. |
| Citation | 355 Wis.2d 436,2014 WI App 79,851 N.W.2d 837 |
| Parties | STATE of Wisconsin, Plaintiff–Respondent, v. Michael R. LUEDTKE, Defendant–Appellant. |
| Court | Wisconsin Court of Appeals |
OPINION TEXT STARTS HERE
On behalf of the defendant-appellant, the cause was submitted on the briefs of Donald T. Lang, assistant state public defender of Madison.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of Christine A. Remington, assistant attorney general, and J.B. Van Hollen, attorney general.
Before NEUBAUER, P.J., REILLY and GUNDRUM, JJ.
¶ 1 Michael R. Luedtke appeals from a judgment convicting him of operating a motor vehicle with a detectable amount of a restricted controlled substance in his blood and an order denying his postconviction motion requesting dismissal of the charge or a new trial. Luedtke argues that the operating a motor vehicle with a detectable amount of a restricted controlled substance in the blood statute, Wis. Stat. § 346.63(1)(am) (2011–12), 1 is unconstitutional because it creates a strict liability criminal offense. Luedtke also argues that he was denied due process when the state destroyed his blood sample before he could conduct independent tests on the sample. We reject Luedtke's arguments and affirm.
¶ 2 Luedtke was arrested for operating a motor vehicle with a restricted controlled substance in his blood after he was involved in a two-car accident on April 27, 2009. Luedtke was driving someone else's vehicle when he looked down at his cell phone. When he looked up, the car in front of him had stopped. Luedtke rear-ended the car. The police officer who arrived at the scene did not notice any signs of impairment while talking to Luedtke. However, a person who lived near the accident scene told officers that he had seen Luedtke take items from the vehicle and stuff those items down the sewer. An officer retrieved six syringes and a metal spoon wrapped in a shirt from the sewer drain. The first officer asked Luedtke if he could search the vehicle, and Luedtke consented to the search. The search revealed syringes under the passenger and driver seats, a brown prescription bottle containing a white powder, and a metal spoon. The officer testified that he asked Luedtke when he had last injected drugs, and Luedtke “told [him] that he injected his morphine but didn't want to say anything else.” The officer then had Luedtke do field sobriety tests, his performance on which led the officer to believe Luedtke was impaired to the extent he could not drive safely. Luedtke was advised that he was under arrest, handcuffed, and taken to the hospital for a blood draw. Luedtke was read the Informing the Accused form, which informed him that he could take an alternative test free of charge or have a test conducted by a qualified person at his own expense.
¶ 3 While at the hospital, Luedtke was assessed by a police officer trained as a drug recognition expert (DRE). The DRE administered tests to evaluate whether Luedtke was impaired, including a balance test, a walk-and-turn test, a one-leg stand, and a finger-to-nose test. Luedtke performed poorly on these tests. Additionally, the DRE noticed fresh puncture marks near Luedtke's right thumb. Based on his observations, the DRE concluded that Luedtke was under the influence of a central nervous system narcotic analgesic, such as the morphine/opiate category of drugs. The DRE concluded that Luedtke was impaired.
¶ 4 The laboratory report on Luedtke's blood tested positive for diazepam (Valium), methadone, venlafaxine (Effexor), cocaine, and benzoylecgonine. Luedtke was charged by criminal complaint filed on December 18, 2009, with operating a motor vehicle with a detectable amount of a restricted controlled substance in his blood and operating a motor vehicle while under the influence of an intoxicant. Luedtke's blood sample was discarded, per state laboratory protocol, on February 4, 2010. On December 28, 2010, the defense moved to suppress the blood test results, arguing that the destruction of the blood sample before Luedtke was able to test it violated his constitutional rights. The trial court denied the motion, and the case proceeded to trial. The jury found Luedtke guilty of operating a motor vehicle with a detectable amount of a restricted controlled substance in his blood but acquitted him of operating a motor vehicle while under the influence of a restricted controlled substance.
¶ 5 Luedtke makes two challenges to his conviction, both on due process grounds. First, he contends that the statute prohibiting operating a motor vehicle with a detectable amount of a restricted controlled substance in the blood violates the Due Process Clauses of the United States and Wisconsin Constitutions because, as a strict liability statute, it does not require knowledge of the wrong committed. Second, Luedtke argues that the destruction of his blood sample prior to independent testing violated his right to due process. Finally, Luedtke argues that he received ineffective assistance of counsel due to his lawyer's failure to bring up these issues, or, in the alternative, that he is entitled to a new trial in the interest of justice.
¶ 6 The State responds that the statute is constitutional. The State reasons that the legislature permissibly created a strict liability crime to rationally address the severe societal problem of drugged driving. The trial court properly denied Luedtke's motion to suppress, contends the State, because Luedtke did not show that the blood sample was apparently exculpatory material evidence or that the State acted in bad faith in destroying the sample. Furthermore, argues the State, Luedtke's due process rights were protected by his ability to have an independent test conducted at the time the test was taken and to challenge the results of the blood test. Finally, the State responds to Luedtke's ineffective assistance and new trial argument by indicating that there was no error on the merits.
¶ 7 Whether a statute is unconstitutional is a question this court reviews de novo. State v. Neumann, 2013 WI 58, ¶ 32, 348 Wis.2d 455, 832 N.W.2d 560. The person challenging the statute must show beyond a reasonable doubt that it is unconstitutional. State v. Baron, 2009 WI 58, ¶ 10, 318 Wis.2d 60, 769 N.W.2d 34.
¶ 8 Usually, criminal statutes require scienter. State v. Weidner, 2000 WI 52, ¶ 11, 235 Wis.2d 306, 611 N.W.2d 684. However, strict liability criminal statutes are not unknown. State v. Jadowski, 2004 WI 68, ¶ 44, 272 Wis.2d 418, 680 N.W.2d 810 (). There are several factors a court can look to when deciding if the legislature meant to impose strict liability, including (1) the language of the statute, (2) legislative history, (3) related statutes, (4) law enforcement practicality, (5) protection of the public from harm, and (6) severity of the punishment. Id., ¶¶ 21–30.
¶ 9 Wisconsin Stat. § 346.63(1)(am) prohibits driving or operating a motor vehicle while “[t]he person has a detectable amount of a restricted controlled substance in his or her blood.” On its face, the statute does not require intent.
¶ 10 The legislative history of Wis. Stat. § 346.63(1)(am) also shows that the legislature meant to enact a strict liability statute. A Wisconsin Legislative Council memo regarding 2003 Wis. Act 97, which enacted § 346.63(1)(am), stated that the intent was to remove the requirement that someone was “under the influence” of the restricted controlled substance in the blood such that “[e]vidence of a detectable amount is sufficient.” Wisconsin Legislative Council Act Memo, 2003 Wis. Act 97, Operating Vehicle or Going Armed With a Detectable Amount of a Restricted Controlled Substance (Dec. 16, 2003), https:// docs. legis. wisconsin. gov/ 2003/ related/ lcactmemo/ ab 458. pdf. The legislature established liability based only on a detectable amount of the restricted controlled substance in the blood, regardless of impairment. There is no indication that the legislature meant to require the State to prove the additional element of intent.
¶ 11 The legislature's intent to create a strict liability crime is further demonstrated by the fact that other subsections in Wis. Stat. § 346.63 do not require a showing of state of mind. Under § 346.63(1)(b), the State is required to prove that a defendant operated a motor vehicle and that the defendant had a prohibited alcohol concentration. There is no required showing of intent. Likewise, under § 346.63(2m), the State must show that the driver has not yet attained the legal drinking age and has some alcohol in his or her blood. There is no requirement that the State show the person knowingly consumed the alcohol. Finally, under § 346.63(7)(a)1., driving a commercial vehicle with any alcohol concentration is also punishable, whether or not the driver intended to consume alcohol. All of these statutes are examples of related strict liability statutes.
¶ 12 The legislature added Wis. Stat. § 346.63(1)(am) in 2003 because “[i]t is often difficult to prove that a person who has used a restricted substance was ‘under the influence’ of that substance.” Legislative Council Memo, supra, at 1. The legislature intended to make it easier to prove operation with a restricted controlled substance in the blood by eliminating the need for the State to prove intoxication. Requiring the State to prove intent would run contrary to the stated goal to ease difficult proof requirements.
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