COURT OF APPEALS
DATED AND FILED
October 14, 2010
A. John Voelker
Acting Clerk of Court of Appeals
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
IN COURT OF APPEALS
In the matter of the refusal of Joseph F. Brown:
Joseph F. Brown,
Joseph F. Brown,
from judgments and an order of the circuit court for
¶1 VERGERONT, P.J. Joseph F. Brown appeals the judgment of conviction for operating a motor vehicle while intoxicated, second offense, in violation of Wis. Stat. § 346.63(1)(a) (OWI). Brown also appeals the judgment finding that he refused to submit to the test for intoxication in violation of § 343.305(10). He asserts that the traffic stop was unlawful and the circuit court therefore erred in denying his motion to suppress evidence and erred in entering the judgment of refusal. We conclude the traffic stop was lawful and affirm both the judgment of conviction and the judgment of refusal.
¶2 At the hearing on Browns motion to suppress evidence, Brown and the
arresting officer, Police Officer Bret Gerritsen of the City of
¶3 The officer testified as follows. At 2:09 a.m. on May 23, 2009, he was
traveling southbound on Park Avenue in the city of
¶4 On cross-examination the officer acknowledged that he did not write in his report that he did not have his high-beam headlights activated, but he reaffirmed his testimony that he did not have them activated when Brown flashed his high-beam headlights.
¶5 Brown testified that, as he was coming into town on
¶6 On cross-examination Brown denied that the fact that an hour later a test showed he had a blood alcohol concentration of .17 had any bearing on his ability to remember what had occurred. He acknowledged that it was possible that the oncoming vehicle did not have its high-beam headlights on because, he stated, [t]heres a lot of cars today that appear to have bright lights on and maybe they are not on. However, he repeated that it appeared to him that the oncoming vehicle did have its high-beam headlights on. Thats why he flashed his high-beam headlights and immediately dimmed them.
¶7 Wisconsin Stat. § 347.12(1)(a) provides:
(1) Whenever a motor vehicle is being operated on a highway during hours of darkness, the operator shall use a distribution of light or composite beam directed high enough and of sufficient intensity to reveal a person or vehicle at a safe distance in advance of the vehicle, subject to the following requirements and limitations:
(a) Whenever the operator of a vehicle equipped with multiple-beam headlamps approaches an oncoming vehicle within 500 feet, the operator shall dim, depress or tilt the vehicles headlights so that the glaring rays are not directed into the eyes of the operator of the other vehicle. This paragraph does not prohibit an operator from intermittently flashing the vehicles high-beam headlamps at an oncoming vehicle whose high-beam headlamps are lit.
¶8 Brown argued to the circuit court that the statute is not violated if the person flashing the high-beam headlights perceives that the high-beam headlights of the oncoming vehicle are on, even if they are not. The States position was that the statute permits the flashing only if the high-beam headlights of the oncoming vehicle are lit. Wis. Stat. § 347.12(1)(a) (emphasis added). The court concluded it did not need to resolve this issue because it determined that Brown did not flash his high-beam headlights because he perceived the officers vehicle to have its high-beam headlights on. The court credited the officers testimony of the distance between the officers vehicle and Browns vehicle when Brown flashed his high-beam headlights, which testimony Brown did not contradict. The court inferred that, if Brown were in fact flashing his high-beam headlights because he perceived the officer had his high-beam headlights on, Brown would have done that at an earlier point and would not have waited until the two cars were almost passing. The court reasoned that, if he thought the bright headlamps [of the oncoming vehicle] were on, they would have been causing an impairment of his vision much sooner than at the time the cars were almost passing. Ultimately, the court concluded the officer did have a reasonable basis to believe there was a violation of § 347.12(1)(a). Accordingly, the circuit court denied the motion to suppress.
¶9 Brown subsequently entered a plea of no contest to the OWI charge, and a judgment of conviction was entered thereon. The parties stipulated that the transcript from the suppression hearing and the courts findings could be applied to the refusal proceeding and on that basis Brown agreed to the entry of a judgment of refusal.
¶10 On appeal Brown contends that the circuit courts findings of fact are against the great weight and clear preponderance of the evidence. He argues that the great weight and clear preponderance of the evidence supports his position that he believed the officer had his high-beam headlights activated and that is why he activated his. In Browns view, the circuit courts decision ignored and did not decide the legal reasoning for his motionthat Wis. Stat. § 347.12(1)(a) does not apply to a motor vehicle operator who believes the high-beam headlights of an approaching motorist are activated. The States position, as it was in the circuit court, is that the relevant inquiry under the statute is whether the officers high-beam headlights were on when Brown flashed his, not whether Brown perceived they were on.
¶11 The temporary detention of individuals during the stop of an
automobile by the police constitutes a seizure of persons within the meaning of
the Fourth Amendment.
State v. Popke, 2009 WI 37, ¶11, 317
motion to suppress contended there was no reasonable suspicion for the traffic
stop. The State argued there was
probable cause and the circuit court appears to have applied a probable cause
standard. In his brief on appeal, Brown
does not refer to any standard for a lawful traffic stop. The State in its brief sets forth the
standard for reasonable suspicion but then uses the term probable cause. Browns reply brief, like his main brief, does not
refer to either reasonable suspicion or probable cause. We will employ the higher probable cause
standard, which is more favorable to Brown, because the officer testified that
he observed the behavior that he believed constituted a traffic violation. See
v. Longcore, 226
¶13 Probable cause exists when an officer has reasonable grounds to
believe that a traffic violation has occurred. Popke, 317
¶14 We affirm the factual findings of the circuit court unless they
are clearly erroneous. Wis. Stat. § 805.17(2); State
v. Post, 2007 WI 60, ¶8, 301
¶15 As a threshold issue, we decide the parties dispute over the
proper construction of the statute.
Because this presents a question of law, our review is de novo. See
v. Integrity Mut. Ins. Co., 2007 WI App 200, ¶12, 305
¶16 When we construe a statute, we begin with the language of the
statute and give it its common, ordinary, and accepted meaning, except that
technical or specially defined words are given their technical or special
definitions. State ex rel. Kalal v. Circuit
Court for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d
110. We interpret statutory language in
the context in which it is used, not in isolation but as part of a whole, in
relation to the language of surrounding or closely related statutes, and we interpret
it reasonably to avoid absurd or unreasonable results.
¶17 We agree with the State that the plain language of Wis. Stat. § 347.12(1)(a) permits the operator of a vehicle that is within 500 feet of an oncoming vehicle to flash its high-beam headlights if the high-beam headlights of the oncoming vehicle are lit. It is unreasonable to construe the term are lit to mean are perceived to be lit even though actually not lit. Therefore, if the high-beam headlights of the oncoming vehicle are not lit, it is a violation of the statute for an operator to flash his or her vehicles high-beam lights within 500 feet of the oncoming vehicle.
¶18 The circuit court found that Brown did flash his high-beam headlights within 500 feet of the officers oncoming vehicle, and that finding is not clearly erroneous. This was the officers testimony and Browns testimony does not contradict it.
¶19 As for whether the officer had his high-beam headlights on when Brown flashed his, the court arguably did not make an express finding on this point. However, it is implicit in its decision that the officers high-beam headlights were not lit. If they were lit, there would be no need for the circuit court to address Browns contention that he did not violate the statute because he perceived the officers high-beam headlights to be lit. In addition, a finding that the officers high-beam headlights were lit when Brown flashed his would be inconsistent with the courts reason for finding that Brown did not flash his high-beam headlights because he thought the officer had his high-beam headlights on. As explained above, the court found that Brown would have seen the officers high-beam headlights at an earlier point and would not have waited until he was within 500 feet to flash his. When a circuit court does not make an express finding of fact but an implicit finding is supported by the evidence, we accept that implicit finding of fact. See Town of Avon v. Oliver, 2002 WI App 97, ¶23, 253 Wis. 2d 647, 644 N.W.2d 260. The officers testimony here that he was certain his high-beam headlights were not activated when Brown flashed his high-beam headlights supports the implicit finding of the circuit court.
¶20 Based on the factual findings, both explicit and implicit, made by the circuit court and the undisputed facts, we conclude the officer had probable cause to believe that Brown was violating Wis. Stat. § 347.12(1)(a) by flashing his high-beam headlights within 500 feet of the officers vehicle. Accordingly, we affirm the circuit courts order denying the motion to suppress, the judgment of conviction, and the judgment of refusal.
By the Court.Judgments and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
 This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2)(f) and (3) (2007-08). All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
the Fourth Amendment to the United States Constitution and article I, section
11 of the Wisconsin Constitution guarantee the right of citizens to be free
from unreasonable searches and seizures. In general, the Wisconsin Supreme Court
follows the United States Supreme Courts interpretation of the search and
seizure provision of the Fourth Amendment in construing the same provision of
the state constitution. State
v. Sveum, 2010 WI 92, ___