State v. McCrossen

Citation129 Wis.2d 277,385 N.W.2d 161
Decision Date16 April 1986
Docket NumberNo. 85-0965-CR,85-0965-CR
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Diane McCROSSEN, Defendant-Appellant.
CourtUnited States State Supreme Court of Wisconsin

Louis B. Butler, Jr., Asst. State Public Defender, for defendant-appellant.

Daniel J. O'Brien, Asst. Atty. Gen. (argued), for plaintiff-respondent; Kirbie Knutson, Asst. Atty. Gen. and Bronson C. La Follette, Atty. Gen., on brief.

STEINMETZ, Justice.

There are two issues in this case:

(1) Did the state's failure to provide the defendant an alternative test for determining alcohol concentration while she was under arrest for operating an automobile while under the influence of intoxicants violate due process and thereby require dismissal of the charge against her?

(2) Did the trial court's refusal to allow the defendant to present evidence that she had requested an alternative test which was not provided, and that she was incorrectly told she would have to pay for an alternative test if given, and that she was held in custody longer than necessary, violate due process by depriving her of the right to present a defense?

We hold that the state's refusal to provide an alternative blood alcohol test did not violate due process, and therefore the trial court correctly refused to dismiss the charge against the defendant. We also hold that the trial court properly refused to permit the defendant to present evidence about the alternative test because the trial court suppressed the results of the first test.

Diane McCrossen, the defendant, is before the court on appeal from a judgment of conviction and sentence entered October 31, 1984, in the Milwaukee county circuit court, Honorable Arlene D. Connors. This is the defendant's second conviction for operating under the influence of an intoxicant contrary to secs. 346.63(1)(a) and 346.65(2), Stats., rendering this a criminal conviction.

Upon conviction, the defendant was sentenced to an indeterminate term of not more than five days in the house of corrections and fined $300 plus a 15 percent penalty assessment, a $150 driver improvement surcharge and court costs. Her license also was revoked for a period of nine months. The action was commenced July 11, 1983, by the filing of a criminal complaint. The jail sentence and fine have been stayed pending appeal.

Prior to trial, the defendant filed a motion to dismiss the charge and an alternative motion to suppress the breathalyzer test. She based her motions on the state's failure to provide an alternative test as requested by the defendant. At the hearing on the motion, the defendant testified that she was arrested in the early morning hours of July 10, 1983, for operating a motor vehicle while under the influence of intoxicants. Following her arrest, she was taken to the police station and was given a breathalyzer test. The result of the test indicated that her alcohol concentration was .24 percent.

The defendant asked Police Officer Gonzales, the arresting officer, and Officer Pamela Puls, who administered the breathalyzer test, if she could have another test because she could not believe the results of the first test. She informed the officers that she wanted either a blood or urine test. The officers told her she would have to pay for such a test, to which the defendant agreed. The police, however, never administered the requested alternative test. The defendant also was never informed that there was an alternative test that the police department was prepared to administer at police expense.

The defendant also was not informed that she could be released in order to get an alternative test at her own expense. She was allowed to make a phone call. She called Sieggy Weiss, a friend, and asked him to post bail for her release. Weiss indicated that he would promptly post bail.

Weiss testified that he arrived at the police station at 6:00 a.m. on July 10, 1983. When he arrived a police officer would not let him into the building because the defendant's name was not on a list maintained by the officer. The officer then called upstairs to check on the defendant's status, and was told they did not have anyone with the defendant's name and so he again refused to permit Weiss to enter. Weiss informed the officer that he was there to bail the defendant out of jail. He had $500 bail money with him.

After he was refused entry, Weiss went home and called the police station every hour requesting entry to bail the defendant out of jail. Each time he called, he was told that he should call back in an hour. Eventually, Weiss was told that he would be able to post bail for the defendant. He returned to the police station and posted her bail in the early afternoon.

The testimony of the arresting officer and the officer who administered the breathalyzer test differed from the defendant's rendition of the conversation in the testing room. For purposes of the issues in this case, we accept the defendant's version. However, the testing officer did testify that if an individual wanted to have an alternative test performed, it would not be done at the expense of the police department, but at the expense of the defendant. This was consistent with the defendant's recollection of that officer's statements. The state concedes that the officer was incorrect about who would have to pay for an alternative test.

The trial court ruled that the breathalyzer result should be suppressed because the defendant's statutory rights were violated. The court refused to dismiss the complaint, however, because the violation was of a statutory right rather than a constitutional right. No constitutional right was implicated because the trial court could not conclude that the results of an alternative test would have been exculpatory. The trial court concluded that there was a deliberate omission to allow the defendant to get either a blood or urine sample for alternative testing, as required by statute, and that suppression of the first test result was an appropriate sanction.

During defense counsel's opening statement to the jury, the prosecutor objected to any statements that the defendant requested an alternative test. Defense counsel pointed out that the defendant's request was "good evidence whether she was or wasn't drunk." He also argued that the fact she was kept in custody unnecessarily was relevant to show that the officers were afraid that if she took a second test the results would be exculpatory.

The trial court ruled that no reference could be made during the trial to evidence of alcohol concentration tests. The court instructed the jury that no chemical test would be admitted and that the jury should draw no inferences for or against either party from the absence of such evidence. The instruction was objected to by the defendant. The trial court's ruling excluded Weiss's testimony about the failure to permit the defendant to be released on bail.

Defense counsel made an offer of proof that defendant would testify that she requested a blood or urine test, and the police refused to provide the test. In addition, she would testify that she called Weiss at 5:00 a.m., processing was completed at that time, and that she was not released until 1:00 p.m. Defense counsel further offered that Weiss would testify that he arrived at the police station at 6:00 a.m. with sufficient bail money, but was not allowed to bail her out right away.

At trial, the arresting officer, Javier Gonzales, testified that at approximately 3:35 a.m., he observed a car going west on West Burnham Street that appeared to be going fast. Upon stopping the vehicle, the officer asked the defendant if she was all right. The officer observed that the defendant's eyes were red and her speech was slurred. The officer then requested the defendant to exit her car whereupon he noticed that her balance was not steady. She rocked and wobbled back and forth, according to the officer. He also noticed a moderate alcohol odor on her breath.

The officer asked the defendant to recite the alphabet. She got to the letter "P," stopped, and took a tooth out of her mouth. She again tried, but still stopped at the letter "P." The officer then asked the defendant to do a finger-to-nose test. She touched the tip of her nose with the middle of her finger, rather than the finger tip, as requested. She was asked to do a heel-to-toe test, but she was not able to do it correctly. She told the officer she was bowlegged as an explanation for her performance on the latter test.

The defendant's mother testified that the defendant was unsteady on her feet most of the time because she had awkwardly shaped feet. She stated that the defendant was not able to sit up until she was 15 or 16 months old and she has had trouble all her life with unsteadiness.

Other explanations were offered by the defendant's mother for the defendant's apparent signs of intoxication. She claimed that the defendant's bloodshot eyes were caused by prior surgery on an eye and because she has allergies. The defendant also allegedly has speech difficulties because she cannot open her mouth too far.

The jury considered the evidence admitted by the trial court and concluded that the defendant had been driving while under the influence of an intoxicant. The court then sentenced the defendant and this appeal followed. The defendant claims that the trial court erred by refusing to dismiss the complaint and by excluding evidence regarding her attempt to secure an alternative alcohol concentration test. The appeal is before this court pursuant to a bypass of the court of appeals, which this court granted under sec. 809.60, Stats. 1

The defendant's first claim is that prosecution of her for driving while under the influence of intoxicants violates due process because the police denied her access to material evidence. She bases this argument on the fact that the police refused to perform an alternative blood...

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  • State v. Kerr
    • United States
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    • 6 juillet 2018
    ...of the blood test is an appropriate sanction for failure to comply with [Wis. Stat. §] 343.305(5)"); see also State v. McCrossen, 129 Wis. 2d 277, 286-97, 385 N.W.2d 161 (1986) (discussing sanctions including suppression arising from due process violations).12 There is a dearth of precedent......
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