State v. Welsh, 80-1686

Decision Date02 July 1982
Docket NumberNo. 80-1686,80-1686
Citation321 N.W.2d 245,108 Wis.2d 319
PartiesSTATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Edward G. WELSH, Defendant-Appellant.
CourtWisconsin Supreme Court

Stephen W. Kleinmaier, Asst. Atty. Gen. (augues), and Bronson C. La Follette, Atty. Gen., on brief, for plaintiff-respondent-petitioner.

Archie E. Simonson, Madison, for defendant-appellant.

CALLOW, Justice.

This is a review of a May 26, 1981, decision of the court of appeals vacating an order of Dane County Circuit Judge Mark A. Frankel and remanding the matter to the circuit court for further proceedings. We reverse the decision of the court of appeals, 102 Wis.2d 727, 308 N.W.2d 772, and affirm the order of the circuit court. The trial court revoked the defendant's motor vehicle operator's license for sixty days pursuant to his unreasonable refusal to submit to a breathalyzer test, as required by section 343.305(2)(a), Stats.1977, 1 after having been issued a citation for the operation of a motor vehicle while under the influence of an intoxicant. Section 346.63(1), Stats.1977. 2

The defendant challenges the officer's warrantless arrest in his residence as violating the Fourth Amendment of the United States Constitution and Article I, section 11 of the Wisconsin Constitution. 3 The circuit court upheld this warrantless arrest concluding that probable cause to believe that the defendant had been operating a motor vehicle while under the influence of an intoxicant, coupled with the existence of exigent circumstances, justified the officers' entry into the defendant's residence. The defendant appealed from this circuit court order, and a single judge of the court of appeals reversed the trial court, holding that, although the officers' warrantless arrest was unreasonable, thereby violating the Fourth and Fourteenth Amendments, the absence of a finding regarding a consensual entry necessitated remanding the case on that issue. We affirm the findings of the circuit court, holding that the co-existence of probable cause and exigent circumstances in this case justifies the warrantless arrest and obviates any further discussion concerning the issue of consensual entry.

Prior to resolving the merits of this case, the state challenges the single-judge ruling of the court of appeals, contending that this should have been decided by a three-judge panel. Section 752.31(2), Stats.1977, provides a categorization of cases subject to review by a single court of appeals judge, as opposed to a three-judge panel. 4 This dispute focuses on whether the defendant's unreasonable refusal to submit to a breathalyzer test pursuant to section 343.305(2)(a), Stats.1977, falls within the purview of section 752.31(2)(c), Stats.1977, authorizing a single-judge appeal in cases involving violations of traffic regulations. The state contends that the statutory penalty imposed for violation of a traffic regulation, as defined in section 345.20(1)(a), Stats.1977, is a forfeiture. According to section 288.01, Stats.1977, however, a forfeiture is defined as 'any penalty, in money or goods' and the penalty pursuant to violating section 343.305, Stats.1977 is a suspension of operating privileges. Consequently, the state argues that a suspension is not a forfeiture and therefore is not included within the parameters established in section 753.31(2), Stats.1977. The defendant's timely notice of appeal conferring jurisdiction to the court of appeals vitiates the need to determine whether section 343.305(2)(a), Stats.1977, is a traffic regulation. For if the court of appeals in its exercise of jurisdiction erroneously assigns this case to a single judge rather than to a panel, this alleged error, and we need not rule whether the court of appeals erred in this case, was waived when neither the state nor the defendant interposed a timely objection. Although resolving this issue is unnecessary in the present case, it is instructive to note that section 752.31(2)(c), Stats., 1979-1980, was recently amended to include license suspension 'cases under section 343.305,' thereby expressly incorporating these cases within the parameters of section 752.31(2)(c), authorizing a single judge appeal. See section 2, ch. 152, Laws of 1981 (effective March 31, 1982).

The factual sequence underlying this dispute can be summarized through the testimony of the sole witness, Randy Jablonic. On the evening of April 24, 1978, Jablonic, a University of Wisconsin rowing coach, was driving alone in his truck. It was raining. He noticed that the driver of the automobile ahead of him was experiencing difficulty in operating his vehicle. In addition to the automobile's erratic speed, it was moving from side to side, crossing into the opposing lane, barely missing a road sign, a median strip, and the oncoming traffic. The vehicle ultimately left the road entirely and drove into a field where it either became stuck or stalled.

Jablonic, concerned that the car might return to the road and fearful '[b]ecause I realized [he] would probably kill somebody' remained at the scene blocking the car to be certain that the car did not return to the highway. A motorist stopped and Jablonic requested her to alert the police. An officer arrived at the scene shortly thereafter.

Prior to the officer's arrival, however, the driver left the automobile in the field and approached Jablonic's truck. Jablonic testified that the driver asked him for a ride home but Jablonic replied that they should wait for assistance in removing or repairing the car, rather than leaving it in the field. At this point the driver became alarmed and 'broke into a very slurred conversation--'you wouldn't get your cops'--or something it was very insecure and not very controlled conversation.' The driver then left Jablonic and headed back across the field abandoning the automobile and departing from the scene of the accident.

The police arrived 'practically immediately upon, . . . his departure' and spoke with Jablonic who had remained at the scene. Jablonic responded to the officer's inquiry by describing his observations of the automobile and its driver. Jablonic told the officer that he believed that the driver 'was very inebriated or very sick or not very much in possession of his faculties or ability to perform.' When asked at trial what formed the basis of his opinion that the defendant was inebriated, he testified '. . . the erratic motion of the car, and then the staggering and slurred speech that [the driver] exhibited when he was trying to talk' constituted the basis upon which he formed his conclusion that the driver was intoxicated. He further described the driver's walk as unsteady and unsure. He stated that when he spoke with the driver at the roadside he had remained in his truck. Consequently, he declared that he had 'no opportunity to smell the [driver's] breath.' Jablonic further testified that he commonly 'see[s] many inebriated people, unfortunately,' demonstrating his familiarity with the symptoms of intoxication. Although Jablonic stated that 'he [the driver] was very inebriated or very sick or not very much in possession of his faculties or ability to perform,' this statement, when considered within the context of the entire record, demonstrates the propriety of the trial judge's conclusion that Jablonic conveyed the definite impression that the driver was intoxicated. Jablonic's reference to illness was merely a remote possibility which provided an alternative, more charitable explanation--illness--to account for his erratic driving, unsteady movements, and slurred speech. The record supports the trial judge's ruling that the officer had probable cause to believe that the driver was intoxicated.

At the scene of the accident the officer ran a license check to determine the vehicle owner's identity. Although the officer could not conclude that the owner of the abandoned automobile was necessarily its driver, he did correctly recall that he was involved in the arrest of the owner in an alcohol-related disturbance within two weeks prior to this accident. The officer's recollection was sufficiently pertinent to provide additional evidence to support the existence of probable cause.

Acting upon his collective knowledge of the situation, the officer proceeded immediately to the defendant's residence which was located near the scene of the accident. Attempting to confirm his belief that the defendant had, in fact, been driving his abandoned vehicle while under the influence of an intoxicant, the officer, arriving at the defendant's residence, asked the defendant's stepdaughter if the defendant was at home. The officer testified that she replied, he had 'just stumbled in . . ..' 'He is upstairs,' and motioned that way--towards the stairs, allowing us to pass.' Proceeding up the staircase, the officer encountered the defendant's wife. He testified that she asked:

"What is going on,' . . . again, we explained there had been an accident, . . . And we would like to speak with him because we thought he was probably under the influence of an intoxicant. And she, at that point, also gave her consent for us to go up, because she said, 'Yes, he is in bed. He just got into bed. And something has to be done,' referring to the fact that she recognized me from the earlier--I assumed she recognized me from the earlier case, and was, I think, saying that she was concerned about his alcoholic problem. And she indicated, 'Something has to be done,' and motioned us to the bedroom.' (Emphasis added).

Affirming the trial court's dual finding of probable cause and exigent circumstances vitiates the need to remand this case to the circuit court on the issue of consensual entry, as was ordered by the court of appeals.

The issue in the present case addresses the delicate interrelationship between the individual's right to privacy and the governmental responsibility to enforce the law in a...

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