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COURT OF APPEALS DECISION DATED AND RELEASED July
27, 1995 |
NOTICE |
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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. 94-3383-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
MARK
D. GARLOCK,
Defendant-Appellant.
APPEAL
from an order of the circuit court for Monroe County: MICHAEL J. MCALPINE, Judge.
Affirmed.
VERGERONT,
J.[1] Mark
D. Garlock appeals from an order revoking his operating privileges for two
years on the ground that he unreasonably refused to submit to chemical testing
under § 343.305, Stats. Garlock contends that there was no probable
cause to arrest him for operating a motor vehicle while intoxicated (OMVWI) and
that he did not refuse to submit to a blood test. We reject both arguments and affirm.
Garlock
was involved in a motor vehicle accident when a pickup truck he was in went off
the road. When Officer Rusty William
Fritz arrived at the accident scene, Garlock and one other person who had been
in the truck were there. Garlock denied
that he was driving and said that a third person, who had just run off, was
driving. Garlock was taken to the
hospital for treatment of his injuries.
At
the hospital, Officer Fritz told Garlock he was under arrest for OMVWI, and
another officer issued him a citation for OMVWI. Officer Fritz read Garlock the "Informing the Accused"
form and asked him if he would submit to an evidentiary chemical test of his
blood. Garlock answered
"no." Officer Fritz then told
Garlock that since it was a crime, he was going to take the blood sample
anyway. A nurse came in and drew the
blood. Officer Fritz filled out and
issued a notice of intent to revoke operating privileges that alleged that Garlock
had refused to submit to a blood test.
Section
343.305, Stats., provides that
any person who drives or operates a motor vehicle upon the public highways of
this state is deemed to have given consent to chemical testing when requested
to do so by a law enforcement officer.
Section 343.305(2). A law
enforcement officer may request a person to submit to testing upon arrest for
operating a motor vehicle while under the influence of an intoxicant. Section 343.305(3)(a). The officer must inform the arrestee of the
arrestee's implied consent to a test; that if the arrestee refuses the test,
his or her license shall be revoked; and that the arrestee may have an
additional test performed. Section
343.305(4). If testing is refused, the
officer issues a notice of intent to revoke the person's operating privileges,
and operating privileges are revoked unless a hearing is requested. Section 343.305(9) and (10).
Garlock
requested a hearing pursuant to § 343.305(9), Stats., to challenge the proposed revocation. The trial court determined after the hearing
that Garlock's operating privileges should be revoked for two years because all
of the issues addressed at the hearing under § 343.305(9)(a)5 were determined
adversely to him.
Garlock
contends that the police officers did not have probable cause to believe he was
driving the truck while intoxicated at the time of the accident. Before Garlock's operating privileges can be
revoked for refusing to submit to a blood test, there must be probable cause to
believe that he was driving while under the influence of alcohol. Section 343.305(9)(a)5.a, Stats.
In
State v. Nordness, 128 Wis.2d 15, 381 N.W.2d 300 (1986), the
supreme court stated:
[T]he revocation hearing [is] a determination merely of
an officer's probable cause, not ... a forum to weigh the state's and the
defendant's evidence. Because the
implied consent statute limits the revocation hearing to a determination of
probable cause--as opposed to a determination of probable cause to a reasonable
certainty--we do not allow the trial court to weigh the evidence between the
parties. The trial court, in terms of
the probable cause inquiry, simply must ascertain the plausibility of a police
officer's account.
Id. at 36, 381 N.W.2d at 308.
We
conclude that based on the facts available to Officer Fritz at the time of the
arrest, a reasonable officer would believe that Garlock was driving the vehicle
under the influence of an intoxicant.
First, there was probable cause to believe that Garlock was driving the
vehicle at the time of the accident.
Both Officer Fritz and Officer Scott Lindemann investigated the area and
saw no evidence that a third person had run through the tall grass on the hill,
as Garlock insisted. Officer Fritz
learned that Garlock was the owner of the truck, which was new. In response to a question about why Garlock
would let someone else drive his new truck, Garlock provided no
explanation. Garlock's description of
the person who was driving the truck was vague. And Garlock's injuries matched the damage to the interior of the
driver's side of the truck.[2]
There
was also probable cause to believe that Garlock was intoxicated at the time of
the accident. Officers Fritz and
Lindemann testified that Garlock's speech was slurred, his eyes were glassy and
he had difficulty walking. Both
officers were certain that they detected a strong odor of intoxicants on
Garlock's breath.[3]
Garlock's
second argument is that he did not refuse to take the blood test because he
submitted to the test after orally refusing to take the test. He claims that his obligation under
§ 343.305, Stats., is to
submit to the test, not to answer affirmatively when asked to submit to the
test.
The
interpretation and application of § 343.305, Stats., to a set of facts presents a question of law that we
review independently of the trial court's determination. See State v. Wilke, 152
Wis.2d 243, 247, 448 N.W.2d 13, 14 (Ct. App. 1989).
Section
343.305, Stats., does not limit
the right to take a blood sample as a search incident to a lawful arrest. Scales v. State, 64 Wis.2d
485, 494, 219 N.W.2d 286, 292 (1974). A
blood sample may be drawn incident to an arrest if there is a reasonable
suspicion that the blood contains evidence of a crime. State v. Seibel, 163 Wis.2d
164, 179, 471 N.W.2d 226, 233, cert. denied, 502 U.S. 986 (1991). Reasonable suspicion requires a lesser
showing than probable cause. See
State v. Swanson, 164 Wis.2d 437, 453 n.6, 475 N.W.2d 148, 155
(1991). Officer Fritz was correct when
he told Garlock that even if he refused to submit to the test, his blood could
be drawn anyway because he had been arrested for driving while intoxicated.
In
Garlock's view, a refusal to submit to the test is not really a refusal if one
does not resist the test after being informed that it can be performed without
consent. We decline to adopt this
interpretation of § 343.305, Stats. The purpose of the statute is to facilitate
the taking of the test. Scales,
64 Wis.2d at 494, 219 N.W.2d at 292. If
all statutory requirements are met, drivers who refuse are to be penalized by
having their operating privileges revoked.
Garlock was properly informed of the consequences of refusing, as
required by statute, and he said "no."
In
most, if not all, instances when there is probable cause to arrest for driving
while intoxicated, there is also a reasonable suspicion to draw blood. Therefore, in most, if not all, instances
when an officer may request that a person upon arrest submit to a test under §
343.305, Stats., the officer
could also take the test without the person's consent. If submitting to a test after a refusal
cancels out the refusal, there will be few instances when a penalty can be
imposed under § 343.305. We conclude
this is an unreasonable interpretation of the statute. We affirm the trial court's determination
that Garlock refused to submit to the test.
By
the Court.—Order affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.