State v. Thierfelder, 91-0942-CR

Decision Date07 January 1993
Docket NumberNo. 91-0942-CR,91-0942-CR
PartiesSTATE of Wisconsin, Plaintiff-Appellant, v. Margaret E. THIERFELDER, Defendant-Respondent-Petitioner. . Oral Argument
CourtWisconsin Supreme Court

For the defendant-respondent-petitioner there was a brief by Edward F. Neubecker, Milwaukee and oral argument by Edward F. Neubecker.

For the plaintiff-appellant the cause was argued by Maureen McGlynn Flanagan, Asst. Atty. Gen., with whom on the brief was James E. Doyle, Atty. Gen.

SHIRLEY S. ABRAHAMSON, Justice.

This is a review of an unpublished decision of the court of appeals filed March 17, 1992, reversing an order of the circuit court for Milwaukee County, Rudolph T. Randa, Circuit Judge. The circuit court dismissed the information charging Margaret Thierfelder with two Class E felonies: (a) causing injury by intoxicated use of a motor vehicle, sec. 940.25(1)(a), Stats.1987-88, and (b) causing great bodily harm while having a blood alcohol concentration (BAC) of 0.10% or more, sec. 940.25(1)(b), Stats.1987-88. 1 The circuit court held that the double jeopardy clause 2 barred the criminal prosecution because the defendant had already pleaded guilty to a civil municipal traffic citation for operating a motor vehicle under the influence of an intoxicant, first offense, in connection with the same traffic accident. The court of appeals reversed the circuit court's dismissal of the information, holding that the defendant had not been subjected to multiple criminal convictions for the same offense, and therefore the defendant's constitutional rights had not been violated. Like the court of appeals, we conclude that the prior civil judgment in the municipal traffic ordinance action does not bar this criminal prosecution. We do not read Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), as the defendant does, to hold that the double jeopardy clause bars the state's prosecution of an accused for a traffic-related felony offense because of his or her previous conviction of a civil municipal traffic charge involving the same accident. Accordingly we affirm the court of appeals' decision and remand the matter to the circuit court for further proceedings.

I.

The material facts are not in dispute for purposes of this appeal. On July 11, 1987, Margaret Thierfelder struck a pedestrian with her car in the Village of Glendale, Wisconsin, causing the pedestrian to sustain serious, permanent head injuries. A blood alcohol intoxilyzer test administered within three hours of the accident showed that the defendant had a blood alcohol content of .167%. Thierfelder admitted to the law enforcement officer attending the accident that she had been drinking beer and smoking marijuana prior to the accident.

On July 13, 1987, the state charged Thierfelder with two Class E felony counts of causing injury by intoxicated use of a motor vehicle, sec. 940.25(1)(a), Stats.1987-88, and causing great bodily harm while having a blood alcohol content of 0.10% or more, sec. 940.25(1)(b), Stats.1987-88. Thierfelder waived an August 31, 1987 preliminary hearing on the felony charges, and the state filed an information setting forth these charges.

Shortly after the automobile accident or at the time the criminal charges were filed, Thierfelder was served with municipal traffic citations charging her with violating several Village of Glendale ordinances which had been enacted in conformity with state statutes: 3 operating a motor vehicle while under the influence of an intoxicant (first offense), sec. 346.63(1)(a), Stats. 1987-88; operating a motor vehicle with a blood alcohol content greater than 0.10%, sec. 346.63(1)(b), Stats.1987-88; possession of an open intoxicant, sec. 346.935, Stats.1987-88; and driving under the influence of a controlled substance, sec. 346.63(1)(a), Stats.1987-88. 4 All of these civil municipal traffic charges were connected with the July 11, 1987, accident.

On April 19, 1988, Thierfelder pleaded guilty or no contest before Milwaukee County Circuit Court Judge Joseph P. Callan to the civil municipal traffic charge of operating a motor vehicle while under the influence of an intoxicant (first offense). The remaining civil municipal traffic charges were dismissed. The circuit court imposed a forfeiture and costs in the amount of $399.50 and suspended her driver's license for six months.

Only the felony charges set forth in the information remained before the circuit court. Trial was scheduled for April 27, 1988. On that date, the defendant's attorney moved the circuit court to dismiss the charges, asserting that continued prosecution would violate constitutional double jeopardy guarantees. At a hearing on the motion, the defendant conceded that her claim of double jeopardy was precluded by our decision in State v. Kramsvogel, 124 Wis.2d 101, 369 N.W.2d 145 (1985). Circuit Court Judge John McCormick denied the defendant's motion and set the matter for a jury trial on September 21, 1988. The trial was set over several times.

On May 18, 1990, the parties stipulated that the intoxilyzer test revealed a blood alcohol content of .167% at the time of the accident and that the victim's injuries constituted great bodily harm under sec. 939.22(14). On May 24, 1990, the trial was scheduled for August 8, 1990.

On May 29, 1990, the United States Supreme Court issued its decision in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), interpreting the double jeopardy clause of the United States Constitution. Just before her trial date, on August 3, 1990, the defendant again moved to dismiss the felony charges on double jeopardy grounds, this time relying on Grady v. Corbin. On November 26, 1990, after briefs and oral argument, the circuit court (Circuit Judge Rudolph T. Randa) ordered dismissal of the felony charges. On appeal by the state, the court of appeals reversed the order of the circuit court. We granted the defendant's petition for review and now affirm the decision of the court of appeals.

II.

This case presents a question of law which this court may decide independently of the circuit court or court of appeals: does the double jeopardy clause bar the state's prosecution of the defendant for the felony offenses because of her previous conviction of a civil municipal traffic charge involving the same traffic accident. 5

The United States Supreme Court has stated that the double jeopardy clause embodies three protections: against prosecution of the same offense after acquittal, against prosecution of the same offense after conviction, and against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969).

The circuit court, the court of appeals, the parties and this court agree that this case implicates the second double jeopardy protection, that is, against a second prosecution for the same offense after conviction. The bar to successive prosecutions furthers the principle that "the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity...." Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957). See also Grady v. Corbin, 495 U.S. at 518, 110 S.Ct. at 2091; State v. Kramsvogel, 124 Wis.2d 101, 107-08, 369 N.W.2d 145 (1985).

This court has previously concluded that the double jeopardy clause is not implicated when one of two successive actions is a civil action rather than a criminal prosecution and the civil action does not result in the imposition of criminal punishment. Accordingly, when the court concludes that one of the actions is civil and does not impose a criminal punishment, the court need not inquire whether both prosecutions involve the same offense for purposes of double jeopardy analysis. 6 In State v Kramsvogel, 124 Wis.2d 101, 369 N.W.2d 145 (1985), the court concluded that a criminal prosecution commenced subsequent to a proceeding for violation of a municipal ordinance does not constitute a "second prosecution" for double jeopardy purposes, citing the "long established rule that the double jeopardy clause protects against two attempted criminal prosecutions." 124 Wis.2d at 109, 369 N.W.2d 145 (emphasis in original). "No rule," the court stated, "is better settled in Wisconsin than that a prosecution under a city ordinance does not bar a prosecution for the same act under a state statute or under the common law." 124 Wis.2d at 109, 369 N.W.2d 145, quoting Milwaukee v. Johnson, 192 Wis. 585, 590, 213 N.W. 335 (1927). See also State v. Schulz, 100 Wis.2d 329, 330, 302 N.W.2d 59 (Ct.App.1981).

Our cases are consistent with the United States Supreme Court's position that the double jeopardy clause of the fifth amendment is not implicated when two actions involve "neither two criminal trials nor two criminal punishments. [The legislature] may impose both a criminal and a civil sanction in respect to the same act or omission; for the double jeopardy clause prohibits merely punishing twice, or attempting a second time to punish criminally, for the same offense." One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 235-36, 93 S.Ct. 489, 492, 34 L.Ed.2d 438 (1972), quoting Helvering v. Mitchell, 303 U.S. 391, 399, 58 S.Ct. 630, 633, 82 L.Ed. 917 (1938). See also Wayne R. LaFave and Jerold H. Israel, Criminal Procedure, vol. 3, § 24.1 (1984) ("... the double jeopardy clause extends to all 'crimes'.... It may generally be said that the prohibition [on subsequent prosecutions] has no application in noncriminal cases.")

It is undisputed that the municipal traffic charges in this case were resolved in a civil suit, not a criminal prosecution. This court has held on numerous occasions that a proceeding to...

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