State v. Stephen D. Harmon, 2006 WI App 214, PFR filed 10/26/06
For Harmon: Timothy A. Provis
Issue/Holding: The § 346.67(1) requirement that a driver provide name, address, vehicle registration number, and driver’s license “to the person struck” does not violate the 5thamendment under controlling authority of California v. Byers, 402 U.S. 426 (1971), notwithstanding that the statute encompasses intentional conduct:
¶29 In short, all the analyses leading to the conclusion of the Byers majority that the California hit-and-run statute does not infringe the Fifth Amendment privilege against self-incrimination take into account the possibility of criminal liability for conduct involved in some accidents. Nonetheless the majority concluded that the requirement of stopping and giving one’s name and address does not infringe on the Fifth Amendment privilege. Harmon has not argued that there is any difference between the purpose and requirements of the California statute and those of Wis. Stat. § 347.67(1) that provides a basis for concluding that Byers is not dispositive. Accordingly, we conclude that, underByers, our construction of “accident” in § 347.67(1), which may include intentional conduct, does not infringe Harmon’s Fifth Amendment privilege against self-incrimination. 
 We observe that numerous state courts have concluded that under Byers the reporting requirements of the state’s hit-and-run statute do not infringe a defendant’s privilege against self-incrimination. See, e.g., People v. Goodin, 668 N.W.2d 392, 394-396 (Mich. Ct. App. 2003); Commonwealth v. Long, 831 A.2d 737, 744-50 (Pa. Super. Ct. 2003); State v. Adams, 891 P.2d 251, 253-54 (Ariz. Ct. App. 1995); People v. Jiminez, 15 Cal. Rptr. 2d 268, 276-77 (Ct. App. 1992); Creary v. State, 663 P.2d 226, 229-30 (Alaska Ct. App. 1983);State v. Melemai, 643 P.2d 541, 545-46 (Haw. 1982); State v. Greenberg, 607 P.2d 530, 533-35 (Kan. Ct. App. 1980); State v. Smyth, 397 A.2d 497, 499-500 (R.I. 1979); Trail v. State, 552 S.W. 757, 758 (Tenn. Ct. App. 1976);Banks v. Commonwealth, 230 S.E.2d 256, 258-59 (Va. 1976); People v. Samuel, 277 N.E.2d 381, 383-87 (N.Y. 1971); State v. Engstrom, 487 P.2d 205, 210 (Wash. 1971); Lamb v. State, 488 P.2d 1295, 1297 (Okla. Crim. App. 1971).
Byers is a 4-1-4 decision, Harlan being the “1” in concurrence; no majority opinion, in other words. Harmon seems to rest its conclusion almost entirely on the “lead opinion’s analysis,” with but passing reference to Harlan’s concurrence (¶28). Because this methodology deviates from the established norm, it is impossible to say with any certainty that the court’s conclusion is unassailable. Where no explicit majority exists, the holding is located at the narrowest point(s) of agreement between concurrence and lead opinion. See Lounge Management v. Town of Trenton, 219 Wis.2d 13, 21-22 13, 580 N.W.2d 156 (1998) (“when the Court issues a splintered plurality decision, courts interpreting that decision should regard the opinion of the Justice concurring on the ‘narrowest grounds’ as the Court’s ultimate holding”); see also Marks v. U.S, 430 U.S. 188, 193 (1977) (“When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds . . . .’ Gregg v. Georgia, 428 U.S. 153, 169 n. 15 (1976) (opinion of STEWART, POWELL, and STEVENS, JJ.). That is, the court’s scanting reference to Harlan’s concurrence has it backward. The court says that “Justice Harlan’s analysis also takes into account the fact that there may be criminal liability for the conduct involved in an accident for which the statute imposes the obligation to stop and identify oneself,” ¶28—but the question isn’t whether that analysis took criminal liability “into account” but whether both it and the lead opinion shared that rationale. As it turns out, they quite possibly did, see 402 U.S. at 458; on the other hand, the extension of that rationale to intentional conduct could well be something else, and would require much more detailed scrutiny of the concurrence.