State v. Zielke
| Decision Date | 03 April 1987 |
| Docket Number | No. 85-2003-CR,85-2003-CR |
| Citation | 403 N.W.2d 427,137 Wis.2d 39 |
| Parties | STATE of Wisconsin, Plaintiff-Appellant-Petitioner, v. Joel G. ZIELKE, Defendant-Respondent. |
| Court | Wisconsin Supreme Court |
Daniel J. O'Brien, Asst. Atty. Gen. (argued), for plaintiff-appellant-petitioner; Bronson C. La Follette, Atty. Gen., on brief.
James A. Walrath, Milwaukee (argued), for defendant-respondent; Shellow, Shellow & Glynn, S.C., Milwaukee, on brief.
Does sec. 343.305, Stats., (the implied consent law) provide the exclusive means by which police may obtain chemical test evidence of driver intoxication thereby requiring suppression upon noncompliance with the law?
The defendant, Joel G. Zielke (Zielke), was charged with four counts of homicide by intoxicated use of a motor vehicle. Blood was taken from him by medical personnel at the direction of the police. The procedures set forth in the implied consent law were concededly not followed.
The trial court found two separate bases to justify the taking of the blood: first, probable cause and exigent circumstances existed at the time of the taking of the blood; second, Zielke actually consented.
Nevertheless, the circuit court of Milwaukee county, Judge Gary Gerlach presiding, suppressed the results of the chemical test. It concluded that the implied consent law is the exclusive means by which police may obtain chemical test evidence of driver intoxication, and therefore failure to comply with the procedures set forth in the implied consent law required suppression. The court of appeals affirmed. The State of Wisconsin (State) seeks review.
We conclude that the implied consent law is designed to facilitate, not impede, the gathering of chemical test evidence in order to remove drunk drivers from the roads. It is not designed to give greater fourth amendment rights to an alleged drunk driver than those afforded any other criminal defendant. It creates a separate offense that is triggered upon a driver's refusal to submit to a chemical test of his breath, blood or urine. It does not, however, prevent the State from obtaining chemical test evidence by alternative constitutional means. Suppressing the constitutionally obtained evidence in this case would frustrate the objectives of the law, lead to absurd results, and serve no legitimate purpose. Hence, we hold that noncompliance with the procedures set forth in the implied consent law does not render chemical test evidence otherwise constitutionally obtained inadmissible at the trial of a substantive offense involving intoxicated use of a vehicle. Accordingly, we reverse the decision of the court of appeals.
In May 1984, Zielke was charged with four counts of homicide by intoxicated use of a motor vehicle under secs. 940.09(1)(a) and (b), Stats. The accident which led to these charges occurred on April 28, 1984, in the City of St. Francis, Wisconsin. Zielke's car allegedly struck from behind a motor cycle stopped at a red light. The driver and a passenger were on the cycle at the time. The impact caused the cycle and Zielke's car to strike another car driven by Mark Stolzel (Stolzel), which was stopped at a red light on the opposite side of the intersection. After this second collision the motorcycle flew through the air, crashed and immediately burst into flames. Despite efforts by Zielke and Stolzel to extinguish the flames, both the driver and passenger on the motorcycle were severely burned and died from their injuries.
According to testimony offered at the pretrial suppression hearing by the investigating officers, Robert Deck (Officer Deck) and Sergeant Terry Bronstad (Sergeant Bronstad), Zielke admitted at the scene that he was the driver of the car which struck the cycle. Officer Deck and Sergeant Bronstad testified that at the scene of the accident Zielke appeared confused, disoriented and emotionally upset. They observed that his speech was "slightly slurred and thick." They did not require Zielke to perform field sobriety tests at the scene because he was injured.
On the basis of his investigation at the scene, Sergeant Bronstad concluded that Zielke was probably under the influence of an intoxicant. Accordingly, he advised Officer Deck to return to the St. Francis Police Station to pick up a State of Wisconsin blood kit and the forms necessary to obtain a blood sample from Zielke. Officer Deck retrieved the blood test sample kit and then proceeded to the hospital where Zielke was taken for treatment of his burn injuries. Shortly after his arrival at the hospital Officer Deck testified he advised Zielke he was under arrest for operating a motor vehicle while intoxicated and read him the Miranda warnings. According to Officer Deck, Zielke acknowledged he understood his rights and shortly thereafter Officer Deck asked Zielke if he would consent to the taking of a blood sample for analysis. Officer Deck testified that Zielke agreed by stating "Okay, all right" or "Go ahead." Officer Deck then gave the test sample kit to the emergency room physician who removed the blood sample.
Officer Deck testified that, on the advice of the Assistant District Attorney, he did not tell Zielke about any consequences flowing from refusal to submit to a test, nor did he read from the "Informing the Accused Form" issued by the Wisconsin Department of Transportation (DOT). That form sets forth the information which sec. 343.305(3)(a), Stats., requires police to disclose to drivers who are requested to submit to a chemical test. That section provides:
Zielke testified that he was unsure whether to give a blood sample because he was confused by the fact that he, rather than Stolzel, the driver of the other car involved in the accident, was under arrest. Zielke testified he finally did consent after Officer Deck allegedly threatened him with automatic conviction for drunk driving and license revocation if he refused to be tested. Officer Deck directly disputed Zielke's claims that he threatened him with conviction and license revocation to obtain consent.
At the conclusion of the pretrial suppression hearing the trial court found that there was probable cause for the officers to arrest Zielke for either homicide by intoxicated use of a vehicle or homicide by negligent use of a vehicle and that there were exigent circumstances which justified the taking of a blood sample without first obtaining a warrant. The court further found that Zielke voluntarily consented to the seizure of his blood, concluding that Officer Deck's testimony concerning the drawing of the blood sample was "the more credible version" of events. The court also found that the blood was drawn in a reasonable manner. 1 Nevertheless, the court concluded that the blood test results had to be suppressed because Officer Deck did not advise Zielke of his right to an alternative test as provided by sec. 343.305(3)(a)3, Stats. The court of appeals summarily affirmed this ruling concluding that the failure of the police to advise Zielke as required by sec. 343.305(3)(a), requires suppression of the blood test results at trial.
The issue in this case, whether the implied consent law sets forth the exclusive method of gathering chemical test evidence thereby requiring suppression upon noncompliance, requires construction of the implied consent law. The construction of a statute is a question of law which this court decides independently without deference to the determinations of the trial court and court of appeals. DeMars v. LaPour, 123 Wis.2d 366, 370, 366 N.W.2d 891 (1985).
Both parties in this appeal request that the court clarify several points concerning the application and operation of Wisconsin's implied consent law, sec. 343.305, Stats. Specifically, the State contends that sec. 343.305 is not the exclusive legal means for police to obtain admissible chemical test evidence. The State argues that the implied consent law is not implicated in this case because police had two independent bases for obtaining the blood sample: 1) probable cause to arrest for homicide by intoxicated use of a motor vehicle and exigent circumstances, i.e., the fact that blood rapidly metabolizes alcohol leading to the eventual disappearance of the evidence of intoxication; and 2) actual consent of the driver. Either of these alone, the State contends, provided sufficient grounds for Officer Deck to obtain the blood sample. Therefore, he did not have to proceed under the implied consent law.
In contrast, Zielke argues that the implied consent law must be complied with whenever law enforcement officers request drivers to furnish blood, breath or urine samples for testing. Zielke argues that if the court adopts the position that sec. 343.305, Stats., is one of several alternative means for lawfully obtaining chemical test evidence, the implied consent law will rarely, if ever, be used by the police with drunk driving suspects because either probable cause and exigent circumstances or actual consent will almost always exist.
The opposing interpretations of the implied consent law advanced by the parties demonstrate the ambiguity of the statute. Section 343.305, Stats., does not specifically address the question of whether the statute provides the exclusive means of obtaining chemical test evidence. It does not explicitly authorize any sanction, suppression or otherwise, if its...
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