|
COURT OF
APPEALS DECISION DATED AND
RELEASED July
31, 1996 |
NOTICE |
|
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-3320
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
LINDA
D. DAVIS,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Dane County: STUART A. SCHWARTZ, Judge.
Affirmed.
SUNDBY,
J. Defendant Linda D. Davis appeals from a judgment after a
court trial convicting her of operating a motor vehicle while under the
influence. Her appeal brings up for our[1]
review the trial court's order denying her motion to suppress all evidence
obtained by the police in effecting her arrest, particularly field sobriety
tests, because the police did not have probable cause to believe that she had
been operating a motor vehicle while her ability was impaired. She presents a double jeopardy issue which
she acknowledges has been decided against her in State v. McMaster,
198 Wis.2d 542, 543 N.W.2d 499 (Ct. App. 1995), review granted, 546
N.W.2d 468 (Wis. Mar. 12, 1996), solely to preserve the issue for possible
review by the supreme court.
Her
other issue arises out of our decision in State v. Babbitt, 188
Wis.2d 349, 525 N.W.2d 102 (Ct. App. 1994), where we held that the trial court
properly relied on defendant's refusal to submit to field sobriety tests in
determining the existence of probable cause.
Davis argues that requiring field sobriety tests constitutes a seizure
of the person which exceeds the permissible bounds of an investigative traffic
detention and becomes, in legal contemplation, an arrest.
She
argues that when a police officer has the power to consider a suspect's refusal
to cooperate with his or her instructions as a basis for arrest, the officer's
detention of the suspect exceeds the permissible scope of a Terry[2]
stop or investigative traffic detention.
She quotes from Terry v. Ohio, 392 U.S. 1
(1968), as follows: "Of course,
the person stopped is not obliged to answer, answers may not be compelled, and
refusal to answer furnishes no basis for an arrest, although it may alert the
officer to the need for continued observation." Id. at 34 (White, J., concurring).
Davis's
argument might be persuasive were it not for the fact that she consented to
perform field sobriety tests and other reasonable investigative measures,
including chemical tests, when she applied for and was granted the privilege to
operate a vehicle on a public highway of this state. Section 343.305(2), Stats.,
provides in part:
Any person who ...
drives or operates a motor vehicle upon the public highways of this state, or
in those areas enumerated in s. 346.61, is deemed to have given consent to one
or more tests of his or her breath, blood or urine, for the purpose of
determining the presence or quantity in his or her blood or breath, of alcohol,
controlled substances, a combination of alcohol and controlled substances,
other drugs or a combination of alcohol and other drugs when requested to do so
by a law enforcement officer under sub. (3)(a) or (am) or when required to do
so under sub. (3)(b)....
Section 343.305(3)(c) provides: "This section does not limit the right
of a law enforcement officer to obtain evidence by any other lawful
means."
If
a person requested by a law enforcement officer, refuses to submit to a
chemical test, the law enforcement officer shall immediately take possession of
the person's license and prepare a notice of intent to revoke the person's
operating privilege, by court order under subsection (10). The person subject to such notice may
request a hearing and if the hearing is held, one of the issues is whether the
officer had probable cause to believe the person was driving or operating a
motor vehicle while under the influence.
Section 343.305(9), Stats. If the court finds that the person
improperly refused to take the chemical test, the court shall proceed to revoke
the person's operating privilege, as provided in § 343.305(10).
As
we have repeatedly noted, probable cause to arrest an operator for operating
while under the influence may be based solely upon the officer's observations
of the operator's manner of operating his or her vehicle, and the officer's
personal observations of the operator's behavior. Field sobriety tests serve to confirm the law enforcement
officer's personal observations.
However, such tests are of advantage to the operator because the
operator is thereby given the opportunity to show that he or she is not
impaired. Such tests are far less
intrusive than chemical tests and benefit both the public and the
operator.
We
do not hesitate to hold that when a person applies for and is granted the
privilege of operating a motor vehicle upon a public highway of this state, he
or she impliedly consents to reasonable investigative measures to determine
whether an operator is too impaired to be allowed to continue his or her
vehicle on the highways. In Terry
and subsequent cases on which Davis relies, the "suspect" had not
given consent to the law enforcement officers to subject him or her to any kind
of investigation.
The
entire basis of the implied consent law is that operating a motor vehicle on a
public highway in Wisconsin is a privilege, and a person who elects to apply
for and receive an operating privilege agrees to submit to reasonable
investigation to determine whether such person may be too impaired to operate a
vehicle. Field sobriety tests are a
reasonable investigative means by which a law enforcement officer makes a
decision as to the vehicle operator's ability to operate without endangering
the public safety. An operator who
applies for and receives a license to operate a vehicle upon a public highway
in Wisconsin impliedly consents to such reasonable investigative measures.
By
the Court.—Judgment affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.