State v. Wintlend

• Decision Date: 06 November 2002
• Docket Number: No. 02-0965-CR.,02-0965-CR.
• Citation: 258 Wis.2d 875,655 N.W.2d 745,2002 WI App 314
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Jerry J. WINTLEND, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

258 Wis.2d 875

2002 WI App 314

655 N.W.2d 745

STATE of Wisconsin, Plaintiff-Respondent, v. Jerry J. WINTLEND, Defendant-Appellant.¹

No. 02-0965-CR.

Court of Appeals of Wisconsin.

Submitted on briefs September 24, 2002.

Decided November 6, 2002.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Ralph A. Kalal of Kalal & Associates of Monona.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Phillip A. Koss, district attorney.

Before Nettesheim, P.J., Brown and Snyder, JJ.

¶ 1. BROWN, J.

Jerry J. Wintlend appeals his conviction for operating a motor vehicle while intoxicated. He contends that when he was read the Informing the Accused form by the officer following his arrest, the language of that form contained a threatened sanction of a loss of driving privileges unless he consented to taking a blood alcohol test. He maintains that this threat constituted a coercive measure invalidating his consent for Fourth Amendment purposes. See WIS. STAT. § 343.305 (1999-2000).² In Village of Little Chute v. Walitalo, 2002 WI App 211, 256 Wis. 2d 1032, 650 N.W.2d 891,review denied, 2002 WI 121 (Wis. Sept. 26, 2002) (No. 01-3060), our court had the same issue before it, but Wintlend maintains that while noting the issue, the Walitalo court did not address it. To the extent that the Walitalo court did not address the argument Wintlend now makes, we speak to that argument and reject it.

[1]

¶ 2. On February 17, 2001, Wintlend was arrested for operating a motor vehicle while intoxicated. The Informing the Accused form was read to him and he consented to taking a blood alcohol test. His blood alcohol measured .183% and he was therefore also charged with a prohibited blood alcohol concentration. Prior to trial, he moved to suppress the evidence, contending, inter alia, that any implied consent to have blood taken from him was a coerced consent by operation of the penalty structure of WIS. STAT. § 343.305(2) and design of the companion provisions of that statute, and was thereby constitutionally invalid. The trial court denied the motion and Wintlend pled no contest to operating while intoxicated. The prohibited blood alcohol concentration charge was dismissed and read in. Wintlend was sentenced and he appeals, again raising the coercion issue.

¶ 3. This precise issue was before the court in Walitalo. In that case, the court observed that the presence or absence of actual coercion or improper police practices is the focus of inquiry because it is determinative on the issue of whether the consent was the product of a "free and unconstrained will, reflecting deliberateness of choice." Walitalo, 2002 WI App 211 at ¶ 9 (citation omitted). The court noted that the arresting officer did not threaten or apply any coercion, but simply read the Informing the Accused form, which stated the truth: if Walitalo refused to submit, his driving privileges could be revoked. Id. at ¶ 11. The court further noted that the statement did not involve trickery or deceit, but merely informed him of his legal situation. Id. Because there was no actual coercion, the court concluded that Walitalo's consent was voluntary. Id.

¶ 4. When Wintlend wrote his brief-in-chief, Walitalo had not been released. By the time of his reply brief, it had been ordered published. Thus, in his reply brief, Wintlend discussed the impact of Walitalo as it related to his case. For some strange reason, he first submitted that the Walitalo court did not reach whether the implied consent statute, when read to the accused, is a form of coercion because the court held that the attorney general had not been notified. Our review of Walitalo shows that the court made no such holding.

¶ 5. Later in the reply brief, Wintlend apparently changed course and allowed that the court had, in fact, addressed the issue but claimed that the court missed it. Wintlend wrote, in pertinent part: "The predicate of this Court's opinion in Walitalo is that the statement in the `Informing the Accused' is accurate.... Walitalo says there is no coercion in correctly stating options, assuming that the options are Constitutional." Wintlend then went on to argue that the options are unconstitutional because they force a motorist to make a choice—either take the test or lose one's license. Wintlend appears to maintain that this state-sponsored coercion exerts a psychological toll on motorists at the time the motorists are asked to take the blood alcohol test, overbearing their will and compelling them to consent to taking a test. In Wintlend's view, the consent obtained after the police officer reads the Informing the Accused form is neither the product of an essentially free will nor an unconstrained choice. ¶ 6. First, Wintlend is wrong when he argues, as he seemingly does, that the Walitalo court missed the issue. It did not. The court reasoned that in reviewing claims of coercion, the focal point must be the "presence or absence of actual coercion." Id. at ¶ 9. The court pointed out that when an officer informs a motorist that his or her driving privileges may be revoked if that motorist refuses to take a blood alcohol test, that information is true. Id. at ¶ 11. Because the officer was merely providing truthful information and because the officer made no threats or applied any coercion, the court could not find that any coercion existed. The court held that there is no unlawful coercion where the officer merely informs the arrestee of the permissible range of sanctions that the State may ultimately be authorized to impose. See id. at ¶¶ 6, 11. We conclude that the Walitalo court saw the issue from the standpoint of the officer's actions and, as so viewed, did answer the issue before the court.

¶ 7. But, here, Wintlend argues that it is not the officer's actions that matter. Rather, he contends, it is the statute itself which should be the subject of a coercion analysis. We note that his counsel has raised this same issue, even after Walitalo, in numerous appeals across the state. If, for no other reason than to finally put an end to the constant barrage of appeals all raising this same issue, we will indulge Wintlend and answer the issue he now raises post-Walitalo.

¶ 8. Wintlend appears to be arguing that the implied consent law conditions receipt of one constitutional right (the right to travel) in return for the relinquishment of another constitutional right (the Fourth Amendment right to be free from governmental searches and seizures). He posits that a license, once granted by the State, is a constitutionally protected interest. He asserts that giving up the right of privacy to one's own body in return for keeping the right to drive is coercive because it poses a choice between two evils—allow a search of one's body by someone else or lose the right to drive without due process.

[2]

¶ 9. We have two responses to this argument. First, while there is a constitutional right to travel, there is no constitutional right to operate a motor vehicle. County of Fond du Lac v. Derksen, 2002 WI App 160, ¶ 7, 256 Wis. 2d 480, 647 N.W.2d 922, review denied, 2002 WI 121 (Wis. Sept. 3, 2002) (No. 01-2870). So, it is not true that the statute presumes to have a motorist give up one right in order to obtain another. What the motor vehicle operator's license does for motorists is extend to them a benefit—the privilege to drive on our highways. Second, the United States Supreme Court has never interpreted the Fourth Amendment as imposing an absolute prohibition of state measures calling upon individuals to abandon their rights as a prerequisite to the receipt of governmental benefits and privileges. In fact, the Court has reached just the opposite conclusion. In Zap v. United States, 328 U.S. 624, 628 (1946), a case dealing with government contracts, the Court recognized that individuals may validly waive their Fourth and Fifth Amendment rights as a condition of receiving government business contracts.

[3, 4]

¶ 10. It therefore follows that the conditioning of benefits upon the surrender of a right does not automatically lead to a finding of unconstitutionality. In the Fourth Amendment context, only unreasonable governmental intrusions are constitutionally proscribed. See Florida v. Jimeno, 500 U.S. 248, 250 (1991). Thus, the real question is not whether access to the highways by virtue of a driver's license is conditioned upon a surrender of a right, but whether the Fourth Amendment intrusion it authorizes is independently reasonable. See Wyman v. James, 400 U.S. 309, 318 (1971).

[5]

¶ 11. In assessing the reasonableness of the coercive nature of the implied consent statute, we first acknowledge that coercion and duress need not be based on some act by the government which is physical or brutal in nature to vitiate consent. See Haynes v. Washington, 373 U.S. 503, 513 (1963). Psychological compulsion may, in appropriate cases, operate to overcome American values of freedom of choice, individual liberty and personal autonomy. See id. Thus, we must look to see whether the implied consent law employs any unreasonable psychological compulsion upon motorists in this state. The answer to this question is in two parts. First, we must consider the question of "when" the consent is obtained. Then, having answered that, we must consider whether "the circumstances" by which the consent was gained are compatible with our sense of reasonableness.

[6]

¶ 12. We begin our analysis with the truism that no one forces anyone in this state to get a driver's license. Individuals have the freedom to choose whether and when to drive on our highways. However, in return for seeking the privilege of driving on our highways, the would-be motorist must obtain a valid driver's license. As a condition of obtaining a driver's license, the would-be motorist must be willing to accept the burdens associated with this choice. One of these conditions is to obey the...