State v. Muehlenberg

• Citation: 347 N.W.2d 914,118 Wis.2d 502
• Decision Date: 27 March 1984
• Docket Number: No. 83-1598,83-1598
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. Robert F. MUEHLENBERG, Defendant-Respondent.
• Court: Wisconsin Court of Appeals

Page 914

347 N.W.2d 914

118 Wis.2d 502

STATE of Wisconsin, Plaintiff-Appellant, v. Robert F. MUEHLENBERG, Defendant-Respondent.

No. 83-1598.

Court of Appeals of Wisconsin.

Submitted on Briefs Feb. 9, 1984.

Opinion Released March 27, 1984.

Opinion Filed March 27, 1984.

Bronson C. La Follette, Atty. Gen., and Jerome S. Schmidt, Asst. Atty. Gen., for plaintiff-appellant.

Turner & Pogodzinski, S.C., Milwaukee, for defendant-respondent; John S. Schiro, Milwaukee, of counsel.

Before SCOTT, C.J., BROWN, P.J., and NETTESHEIM, J.

BROWN, Presiding Judge.

Section 346.63(1)(b), Stats., prohibits the operation of a motor vehicle if the driver has a blood alcohol concentration of .10% or more. The driver in this case, Robert F. Muehlenberg, claims that the statute is void for vagueness because it is not possible for a person to determine by his own senses whether his blood alcohol concentration is a "legal" .09% or an "illegal" .10%. The trial court, persuaded by Muehlenberg's reasoning, found the statute unconstitutional. We reverse.

The significance of this issue cannot be underestimated. As early as 1957, our United States Supreme Court commented that "[t]he increasing slaughter on our highways [caused by drunk drivers], most of which should be avoidable, now reaches the astounding figures only heard of on the battlefield." Breithaupt v. Abram, 352 U.S. 432, 439, 77 S.Ct. 408, 412, 1 L.Ed.2d 448 (1957) (footnote omitted). This grievous situation remains unchanged. The United States Supreme Court recently commented:

The situation underlying this case--that of the drunk driver--occurs with tragic frequency on our Nation's highways. The carnage caused by drunk drivers is well documented and needs no detailed recitation here. This Court, although not having the daily contact with the problem that the state courts have, has repeatedly lamented the tragedy.

South Dakota v. Neville, 459 U.S. 553, 558, 103 S.Ct. 916, 920, 74 L.Ed.2d 748, 755 (1983).

The Wisconsin legislature in 1977, recognizing the need to protect the public and provide maximum highway safety, fortified its "driving under the influence" statute, sec. 346.63(4), Stats. (1979), by creating a presumption of being under the influence if a driver had .10% or more of alcohol in his or her blood. As the California Supreme Court has recently noted, however, even this fortification, which considerably assisted the prosecution of "driving under the influence" cases, proved deficient in many regards. Burg v. Municipal Court for the Santa Clara Judicial District, 35 Cal.3d 257, 198 Cal.Rptr. 145, 148, 673 P.2d 732, 735 (Cal.1983). The Burg court discussed this inadequacy and also pointed out a further strengthening of the law known as the Scandinavian Model. The court commented:

Even these laws, which considerably assisted the prosecution of "driving under the influence" cases, proved inadequate in many respects. Under them, the ultimate question was defined in terms of the defendant's subjective behavior and condition: "Was the defendant under the influence at the time he drove?" Celerity and certainty of punishment were frustrated by the ambiguity of the legal criteria; no matter what his blood-alcohol level, a defendant could escape conviction merely by raising a doubt as to his intoxication.

In response to this continuing problem, in the past decade most states enacted additional legislation supplementing existing "driving under the influence" statutes and fashioned after what has been termed the "Scandinavian model." [Citations omitted.]

Id. Wisconsin, by promulgation of sec. 346.63(1)(b), Stats., is one of the states that has adopted the Scandinavian Model. ¹ This model replaces the presumptive element of sec. 346.63(4), Stats. (1979), and defines the substantive offense not by the subjective term "driving under the influence" but instead by the act of driving with a specified blood alcohol level. Under this law, proof of being "under the influence" is unnecessary. The statute represents a legislative determination that public safety is per se endangered when a person drives a motor vehicle while having a specified concentration of .10% or more by weight of alcohol in the blood. ²

Muehlenberg claims that the problem with the Scandinavian Model is that people are unable to determine when their blood alcohol content is about to reach the proscribed level. He argues that it calls for speculation and is especially onerous when a person is neither exhibiting nor feeling any symptoms of alcoholic influence. Thus, concludes Muehlenberg, persons of common intelligence must necessarily guess at its meaning and differ as to its applicability. Therefore, the statute is unconstitutionally vague.

Legislative enactments are presumed constitutional. Mack v. State, 93 Wis.2d 287, 297, 286 N.W.2d 563, 568 (1980). This court will sustain a statute against attack if there is any reasonable basis for the exercise of the legislative power. Id.

Concisely stated, "the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, ----, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903, 909 (1983). In analyzing whether a particular statute is void for vagueness, two prongs must be considered. First, "[a] criminal statute must be sufficiently definite to give a person of ordinary intelligence who seeks to avoid its penalties fair notice of conduct required or prohibited." State v. Popanz, 112 Wis.2d 166, 173, 332 N.W.2d 750, 754 (1983). Second, the "statute must also provide standards for those who enforce the laws and those who adjudicate guilt." Id.

We will begin with the second prong because it will not detain us long. The ".10%" offense easily comports with the second prong of this analysis. The statute could not be more precise as a standard of law enforcement. Because no discretion is given to the police, those officials charged with enforcing the law can objectively ascertain whether a defendant's conduct meets the terms of the law without having to create or apply their own standards. Id. In fact, Muehlenberg concedes that this prong is satisfied.

Turning to the first prong of the void-for-vagueness test, "a statute will be held to be vague in the constitutional sense only if it is so obscure that persons of common intelligence must necessarily guess at its meaning and differ as to its applicability." State v. Tronca, 84 Wis.2d 68, 86, 267 N.W.2d 216, 224 (1978).

We agree with the Arizona Supreme Court in Fuenning v. Superior Court, 139 Ariz. 590, 680 P.2d 121 (1983), reconsideration denied, Feb. 27, 1984, that pragmatically there may be no way for a particular drinker to know the precise moment when he or she reaches the physiological point at which driving or controlling the vehicle will violate the law. But like the Fuenning court, we take judicial notice that it requires more than a small amount of alcohol to produce a .10% blood alcohol content. ³ "Those who drink a substantial amount of alcohol within a relatively short period of time are given clear warning that to avoid possible criminal behavior they must refrain from driving." Fuenning, 139 Ariz. at 598, 680 P.2d at 129.

While a driver may not be able to determine that his blood alcohol content is .10% rather than .09%, absolute precision is not required to prevent the statute from being declared vague. "[A] statute need not meet impossible standards of specificity ... to survive a challenge under the vagueness doctrine. All that is required is a fair degree of definiteness." Tronca, 84 Wis.2d at 86, 267 N.W.2d at 224 (citations omitted).

A person of common intelligence can, with a fair degree of definiteness, believe himself or herself to be in jeopardy of violating the statute if a significant quantity of alcohol has been consumed. There...