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Refusal hearing argument didn’t clearly raise issue argued on appeal, so it’s forfeited

State v. Danny L. Waters, 2018AP1455, District 4, 5/2/19 (one-judge decision; ineligible for publication); case activity (including briefs)

The argument Waters made at his refusal hearing wasn’t sufficiently clear to preserve the issue for appeal.

Waters refused a blood test after being arrested for OWI in his home. He argues his license shouldn’t be revoked because: (i) the information the officer had before entering his home didn’t provide probable cause to arrest; and (ii) the information the officer obtained after entering can’t be considered because the officer made an unlawful warrantless entry. (¶¶2-3, 5). The court of appeals concludes this argument is forfeited because counsel’s argument at his refusal hearing in circuit court didn’t clearly articulate the claim he makes on appeal:

¶10     Waters’ argument before the circuit court as to Deputy Welsch’s entry into his home is fully represented by the following statement: “I would simply argue that [Deputy Welsch] didn’t have the requisite level of suspicion to go to [] Waters’ house at that hour and question him about the [accident].” If that statement is adequate to provide a reasonable circuit court with notice that Waters was arguing that Deputy Welsch did not have sufficient cause to enter his house and therefore, any evidence obtained after that entry is inadmissible, then the issue has been adequately preserved. However, if the quoted statement is not adequate to provide the court notice of that argument, or if the statement raises a different argument than the lawfulness of entry into Waters’ home, then the statement has not preserved Waters’ challenge of the lawfulness of Deputy Welsch’s entry for appeal. See State v. Rogers, 196 Wis. 2d 817, 826-29, 539 N.W.2d 897 (Ct. App. 1995) (a party seeking reversal may not advance arguments on appeal which were not presented to the trial court).

¶11      I conclude that it is not clear that Waters in fact challenged the lawfulness of Deputy Welsch’s entry into his home before the circuit court. A reading of the quoted statement yields mixed conclusions. On the one hand, arguing that there is not sufficient reasonable suspicion to detain a person and ask questions is not the same issue as whether there is sufficient cause to enter a home. The particular language employed by trial counsel: “didn’t have the requisite level of suspicion,” seems to raise the issue in the investigative questioning context. On the other hand, however, that is not the context in which the statement was made by trial counsel at trial, and it is not the context in which Waters raises his challenge on appeal. Waters was not stopped and questioned. Deputy Welsch entered Waters’ house. The “requisite level of suspicion” to do that, in Waters’ appellate argument, is probable cause. Waters’ counsel never even mentions entry into the home, the crux of the constitutional issue, but rather points to going to the home and questioning Waters, which goes along with the language related to investigative questioning.

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¶13     As the burden of demonstrating that the issue was adequately preserved for appeal falls upon Waters, it cannot be left to ambiguity whether the circuit court would have perceived the argument made to it as the same argument raised before me on appeal. Waters has not met his burden of showing that he preserved this challenge of Deputy Welsch’s entry into his home, and I have to conclude on that basis that the issue had been forfeited, as the State argues.

The court says it reaches this conclusion with “some hesitation,” given the seriousness of warrantless entries to the home. (¶14). But Waters’s “failure to fully articulate or develop an argument related to improper entry deprived the circuit court of the opportunity to determine on the record whether or not there was consent or exigent circumstances” and “providing the circuit court with the opportunity to avoid error is a primary reason for the forfeiture rule.” (¶15).

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