State v. Smet

• Decision Date: 09 November 2005
• Docket Number: No. 2005AP690-CR.,2005AP690-CR.
• Citation: 2005 WI App 263,709 N.W.2d 474
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Joseph L. SMET, Defendant-Appellant.<SMALL><SUP>†</SUP></SMALL>
• Court: Wisconsin Court of Appeals

709 N.W.2d 474

2005 WI App 263

STATE of Wisconsin, Plaintiff-Respondent v. Joseph L. SMET, Defendant-Appellant.^†

No. 2005AP690-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs September 29, 2005.

Opinion Filed November 9, 2005.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Christopher A. Mutschler, of Anderegg & Mutschler, LLP. Of Fond du Lac.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, Attorney General, and David J. Becker, Assistant Attorney General, and the supplemental brief of Scot Mortier, Assistant District Attorney for Fond du Lac county.

Before SNYDER, P.J., NETTESHEIM and ANDERSON, JJ.

¶ 1 NETTESHEIM, J

Joseph L. Smet appeals from a judgment of conviction for operating a motor vehicle with "a detectable amount of a restricted controlled substance" in his blood, contrary to WIS. STAT. § 346.63(1)(am) (2003-04).¹ On appeal, Smet challenges the constitutionality of this statute. He contends that it exceeds the scope of the legislature's police power and thereby violates the constitutional guarantees of due process, fundamental fairness and equal protection. We uphold the trial court's ruling that the statute passes constitutional muster and affirm the judgment of conviction.

FACTS

¶ 2 The relevant facts are straightforward and are not in dispute. On June 1, 2004, Smet was arrested by a Fond du Lac County Sheriff's Deputy on suspicion of operating a motor vehicle while intoxicated. The arresting officer transported Smet to St. Agnes Hospital where Smet agreed to submit to a chemical test of his blood. The analysis of Smet's blood showed no measurable concentration of ethanol, but did reveal a measurable concentration of 3.2 nanograms per milliliter of delta-9-THC, the primary active ingredient in marijuana, and 3.2 nanograms per milliliter of 11-hydroxy-THC and 95 nanograms per milliliter of carboxy-THC, two metabolites of THC. As a result, a criminal complaint charged Smet with operating a motor vehicle with a detectable amount of a restricted controlled substance in his blood, contrary to WIS. STAT. § 346.63(1)(am).²

¶ 3 Smet moved to dismiss the complaint on the grounds that WIS. STAT. § 346.63(1)(am) is unconstitutional. He contended that the statute exceeds the legislature's police power and violates his rights to due process, fundamental fairness and equal protection, as guaranteed to him under both the federal and state constitutions. The trial court rejected Smet's arguments. The parties then stipulated to a pro forma trial at which the trial court found Smet guilty as a repeat offender. Smet appeals from the resulting judgment of conviction.

DISCUSSION

¶ 4 On appeal, Smet renews the constitutional challenges to WIS. STAT. § 346.63(1)(am) that he raised in the trial court. The statute provides:

346.63 Operating under influence of intoxicant or other drug. (1) No person may drive or operate a motor vehicle while:

....

(am) The person has a detectable amount of a restricted controlled substance in his or her blood.

"Restricted controlled substance" means any of the following:

(a) A controlled substance included in schedule I under ch. 961 other than a tetrahydrocannabinol.

(b) A controlled substance analog, as defined in s. 961.01(4m), of a controlled substance described in par. (a).

(c) Cocaine or any of its metabolites.

(d) Methamphetamine.

(e) Delta-9-tetahydrocannabinol.

WIS. STAT. § 340.01(50m). Section 346.63(1)(am) applies only to illegal restricted controlled substances because § 346.63(1)(d) provides an affirmative defense if the defendant has a prescription for the substances.

¶ 5 The constitutionality of a statute presents a question of law that we review de novo. State v. Cole, 2003 WI 112, ¶ 10, 264 Wis.2d 520, 665 N.W.2d 328. We also must bear in mind the general principles that govern the review of a constitutional challenge. See id., ¶ 11, 665 N.W.2d 328. Notably, we presume that a legislative enactment is constitutional, "indulg[ing] every presumption to sustain the law if at all possible," and resolving any doubt in favor of constitutionality. Id. (citation omitted). The challenging party thus faces a heavy burden and must prove unconstitutionality beyond a reasonable doubt. Id. With these principles in mind, we address Smet's specific constitutional challenges.

1. Police Power and Due Process

¶ 6 Smet first contends that WIS. STAT. § 346.63(1)(am), requiring only proof of "a detectable amount" of a banned substance and not proof of impairment, represents an unconstitutional overstep by the legislature in the exercise of its police power. This overstep, he submits, violates his rights to due process and fundamental fairness.

¶ 7 The police power is the inherent power of the government to promote the general welfare, and covers all matters having a reasonable relation to the protection of the public health, safety and general welfare. State v. McManus, 152 Wis.2d 113, 130, 447 N.W.2d 654 (1989). When the exercise of the police power is challenged on due process grounds, the test is whether the means chosen have a reasonable and rational relationship to the purpose or object of the enactment. Kahn v. McCormack, 99 Wis.2d 382, 385, 299 N.W.2d 279 (Ct.App.1980). If they do, and the object is a real and proper one, the exercise of the police power is valid. Id. Accord McManus, 152 Wis.2d at 130, 447 N.W.2d 654.

¶ 8 Because the driving of an automobile upon public roads is not a property right but a privilege, it is subject to reasonable regulation under the police power in the interest of public safety and welfare. State v. Stehlek, 262 Wis. 642, 646, 56 N.W.2d 514 (1953). Smet agrees that maintaining safe roadways is a proper object of the police power. He questions, however, whether there exists a reasonable and rational relationship between that legislative objective and WIS. STAT. § 346.63(1)(am) because the statute requires no showing of impairment. The clear implication of Smet's position is that it lies within this court's authority to invalidate this legislative enactment.

¶ 9 The State counters that while some cases would permit us to determine whether the means are reasonably and rationally related to the ends, others such as Bisenius v. Karns, 42 Wis.2d 42, 165 N.W.2d 377, appeal dismissed, 395 U.S. 709, 89 S.Ct. 2033, 23 L.Ed.2d 655 (1969), and State v. Hermann, 164 Wis.2d 269, 474 N.W.2d 906 (Ct.App.1991), teach otherwise:

We are uneasy with this balancing and weighing concept of the judicial role in testing the constitutionality of a police power statute. There is too much of a temptation to a putting of a judicial thumb on the scales with judges substituting their own evaluation of alternatives for that of the legislature. We would hold that, once within the area of proper exercise of police power, it is for the legislature to determine what regulations, restraints or prohibitions are reasonably required to protect the public safety and only the abrogation of a basic and substantial individual liberty would justify judicial intervention to set aside the legislative enactments.

Bisenius, 42 Wis.2d at 54, 165 N.W.2d 377 (footnote omitted); see also Hermann, 164 Wis.2d at 285, 474 N.W.2d 906. The State then posits that, despite possible imprecision in the case law and "independent of the police powers doctrine," we nonetheless should examine whether the legislation bears a reasonable and rational relationship to the purpose because that is the test mandated by a due process analysis.

¶ 10 The State may be overstating the confusion in the law. We need not decide here, however, whether Bisenius in fact holds that a challenger's only recourse is the ballot box, or whether perhaps it is simply a reminder of the heavy burden the challenger bears—proof beyond a reasonable doubt. We leave the assessment of the court's role in evaluating the reasonableness of legislative measures for another day when that issue is more squarely before us.

¶ 11 We also question the State's position insofar as it treats as distinct due process and police power challenges. The concepts actually are intertwined where the objection is to the legislative means employed. See McManus, 152 Wis.2d at 130, 447 N.W.2d 654; see also Kahn, 99 Wis.2d at 385, 299 N.W.2d 279. Therefore, having determined that the safety of the state's roadways is a proper area of exercise of the police power, see Stehlek, 262 Wis. at 646, 56 N.W.2d 514, and since neither party objects, we will proceed with the next step of Smet's due process challenge, which is to examine whether the statute is a reasonable and rational means to the legislative end.

2. Reasonable and Rational Relationship

¶ 12 Smet argues that the statute violates his right to due process because it lacks a reasonable and rational underpinning since, "[a]lmost comically," it is situated in WIS. STAT. § 346.63, entitled "Operating under influence of intoxicant or other drug," yet impairment at the time of driving always has been "the sine qua non of any prosecution under § 346.63."

¶ 13 On its face, this argument fails for at least two reasons. First, contrary to Smet's assertions, proof of impairment is not necessary for all other WIS. STAT. § 346.63 violations. See McManus, 152 Wis.2d at 131, 447 N.W.2d 654. Impairment has not been a prerequisite for prosecution under the "driving under the influence" statute since 1981. See State v. Muehlenberg, 118 Wis.2d 502, 505, 347 N.W.2d 914 (Ct.App.1984). "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 ... alcohol in the blood." Id. (footnote omitted). The placement of § 346.63(1)(am) in this statute plainly signifies an endorsement of that same legislative determination as it relates to drivers with a detectable concentration in their blood of various controlled...