State v. Nordness, 84-871-CR

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtCECI; P. Charles Jones
Citation381 N.W.2d 300,128 Wis.2d 15
PartiesSTATE of Wisconsin, Plaintiff-Appellant, v. Robert W. NORDNESS, Defendant-Respondent-Petitioner.
Docket NumberNo. 84-871-CR,84-871-CR
Decision Date11 February 1986

Page 300

381 N.W.2d 300
128 Wis.2d 15
STATE of Wisconsin, Plaintiff-Appellant,
Robert W. NORDNESS, Defendant-Respondent-Petitioner.
No. 84-871-CR.
Supreme Court of Wisconsin.
Argued Jan. 8, 1986.
Opinion Filed Feb. 11, 1986.

Page 301

[128 Wis.2d 18] Larry A. Haukom (argued), and Haukom & Ritchie, Madison, for defendant-respondent-petitioner.

Michael R. Klos, Asst. Atty. Gen., with whom on brief was Bronson C. La Follette, Atty. Gen., for plaintiff-appellant.

[128 Wis.2d 19] CECI, Justice.

In this case we review an unpublished decision of the court of appeals filed February 14, 1985, 123 Wis.2d 541, 367 N.W.2d 243. The court of appeals reversed an order of the circuit court entered pursuant to section 343.305(8)(b), Stats., which would have prohibited the revocation of Robert W. Nordness's driving privileges as a result of his refusal to submit to a chemical analysis for intoxication. The hearing was held in the circuit court for Dane county, W.L. Jackman, reserve judge. We affirm the decision of the court of appeals.

The issue is whether the circuit court erred in holding that the state failed to prove to a reasonable certainty that Robert W. Nordness was the actual driver of the car which a police officer had stopped under suspicion of the driver's intoxication. More specifically, we address whether the issues at a revocation hearing are strictly limited to those delineated in section 343

Page 302

.305(3)(b)5, Stats., or whether a threshold test must first be met, namely, whether the person charged with refusal to submit to chemical testing was in fact the driver of the motor vehicle. We hold that the issues to be addressed at a revocation hearing are strictly limited to those enumerated in the statute; the trial court erred in considering evidence and in holding that the state did not establish to a reasonable certainty that Nordness was the actual driver of the motor vehicle stopped by the police officer. We also determine that the defendant's due process rights were not violated and that the arresting police officer had probable cause to believe that the defendant was operating a motor vehicle while intoxicated.

On September 14, 1983, Robert Nordness was arrested for operating a motor vehicle while under the [128 Wis.2d 20] influence of an intoxicant, contrary to section 346.63(1)(a), Stats. 1 The police officer making the arrest requested that Nordness take a breathalyzer test. 2 When Nordness refused to take the test, the police officer issued to him a notice of intent to revoke his operator's license. Nordness subsequently requested a hearing on the revocation under section 343.305(3)(b)4. 3

Circuit Judge P. Charles Jones, prior to the revocation hearing, ruled in favor of defendant's motion that he be permitted to present witnesses to prove that he was not the driver of the vehicle at the time of the alleged[128 Wis.2d 21] offense. In a memorandum decision, the circuit court stated that the threshold question in determining whether a driver refused to take a breath or blood test is whether that person was, in fact, the driver.

At the revocation hearing before Reserve Judge W.L. Jackman, the arresting state patrol officer testified that, at about 11:00 p.m. as he was sitting in his squad car facing south at a stop sign at a T intersection, he saw a vehicle approaching from the west and weaving in the roadway. The officer stated that when the vehicle entered the intersection, the headlights of his patrol car illuminated the driver sufficiently such that he recognized the driver as the defendant. He testified that he had seen the defendant on at least three or four previous occasions at a local service station. As the driver executed a left turn in front of the officer, the officer turned his head and saw the defendant again, from a distance of about five feet.

According to the officer, the defendant continued driving along the highway and began to accelerate. As he did, the officer turned around, turned on his red lights and siren, and pursued the defendant. After about three-tenths of a mile, the defendant turned into a driveway. The officer followed him into the driveway, stopping his squad car a few feet behind the defendant's vehicle and off to its left side. The officer had his high beam headlights on and pointed his vehicle's spotlight at the driver, who got out of his car and began running toward his house. The officer, who testified that the defendant was alone in his vehicle, again recognized the person as Nordness. He started to pursue Nordness

Page 303

and shouted at him to stop. The driver turned around, mumbled something unintelligible to [128 Wis.2d 22] the officer, and then continued running to the back of a house into which the officer believed Nordness fled. The officer had his flashlight shining on him when the driver was mumbling; the two were about twenty feet apart from each other at that point.

The officer then radioed for backup help. Over a loudspeaker, the officer ordered the defendant to come out of the house. After no initial response, the police officer radioed the dispatcher to telephone the residence to request that the defendant exit the house. After two telephone contacts, Theresa Johnson, a woman with whom the defendant lived, exited the house. She claimed that she had been driving the car in question and that the defendant had been home asleep. The officer, who knew Theresa was not the driver because he recognized her as an employee at the same service station where he had seen Nordness, asked her to get Nordness. When the defendant finally arrived, the officer recognized him as the driver of the vehicle and detected a strong odor of intoxicants on his breath. He noted that the defendant was having trouble with his balance and was slurring his speech. His eyes were bloodshot. After the defendant failed a field sobriety test, he was placed under arrest for operating a motor vehicle while intoxicated. The officer then proceeded with requesting Nordness to submit to a chemical test. The defendant refused to submit to the test.

The defendant and Theresa Johnson testified at the hearing that Theresa Johnson was driving the car which the officer had pursued. Johnson testified that she was returning from Nordness's father's farm. She stated the vehicle weaved when travelling because it previously had been in an accident. She claimed she did [128 Wis.2d 23] not stop when she saw the officer's red flashing lights because she did not know that the officer was after her. The defendant testified that he was home in bed when the incident between Ms. Johnson and the officer occurred. The defendant's uncle testified that Nordness left a local bar sometime before 10:00 p.m. that night. The defendant's father corroborated Theresa Johnson's testimony that she drove the defendant's automobile to his farm that evening and left about 11:00 p.m. The record indicates that two of the alibi witnesses--the defendant's uncle and the defendant's father--were not present at the time the officer made his arrest, and, therefore, they provided no information to the officer at that time.

At the end of the testimony, the trial court concluded that the officer "may have mistaken [Theresa Johnson] for the defendant." The court then dismissed the claim of refusal because the state had not, "even to the point of proving the case to a reasonable certainty," shown that the defendant was the driver of the car.

The state appealed. In a single-judge opinion by Judge Michael T. Sullivan, the court of appeals determined that section 343.305(3)(b)5, Stats., clearly defines the issues to be decided at a revocation hearing; whether the defendant actually was the driver of the vehicle is not one of those issues. Because the parties stipulated to all other issues, the only proper matter to be determined at the revocation hearing was whether the officer had probable cause to arrest the defendant. However, the focus of the probable cause issue was the identity of the driver, the court of appeals noted. It rejected the standard of proof adopted by the trial court--reasonable certainty--and said that the [128 Wis.2d 24] state merely needed to show that the officer had probable cause. The court of appeals reversed the order dismissing the refusal charge and remanded for further proceedings.

The defendant now seeks review in this court. He first argues that section 343.305, Stats., must include a defendant's right to present evidence that he was not the actual driver of the car as a threshold determination to whether probable cause existed. We reject the argument that section 343.305(3)(b) 5 encompasses anything

Page 304

more than the issues listed within that subsection.



The question before this court involves interpretation and application of section 343.305(3)(b)5, Stats. The construction of a statute in relation to a given set of facts is a question of law. State v. Clausen, 105 Wis.2d 231, 243, 313 N.W.2d 819 (1982). This court may decide questions of law independently, without deference to the decisions of the trial court and the court of appeals. Ball v. District No. 4, Area Bd., 117 Wis.2d 529, 537, 345 N.W.2d 389 (1984).

Section 343.305, Stats., known as the implied consent law, states that any person who drives or operates a motor vehicle upon the public highways of this state is deemed to have given his consent for chemical testing when requested to do so by a law enforcement officer. 4 [128 Wis.2d 25] 4 A law enforcement officer may request a person to submit to testing upon his arrest for operating a motor vehicle while under the influence of an intoxicant. Section 343.305(2)(b). The officer must inform the arrestee of the arrestee's implied consent to a test; that if the arrestee refuses the test his license shall be revoked; and that the arrestee may have an additional test performed. Section 343.305(3)(a)1-3.

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