OWI – Refusal Hearing – Authority to Litigate Constitutionality of Traffic Stop
Constitutionality of the traffic stop may be raised as a defense at a refusal hearing, § 343.305(9)(a)5.a.
¶29 In this case, the relevant portion of the statute is found in sub. (9)(a)5.a. That subsection permits circuit courts to consider “[w]hether the officer had probable cause to believe the person was driving or operating a motor vehicle while under the influence of alcohol . . . and whether the person was lawfully placed under arrest” for violation of an OWI-related statute. (Emphasis added).
¶32 The legislature’s use of the conjunctive word “and” indicates that there are two issues set forth in sub. (9)(a)5.a., and that those two issues are independent. Not only can a defendant contest “[w]hether the officer had probable cause to believe the person was driving or operating a motor vehicle while under the influence of alcohol,” but also, the defendant can contest “whether the person was lawfully placed under arrest” for violation of an OWI-related statute. Gautschi, 240 Wis. 2d 83, ¶6. If the legislature had intended to limit the inquiry set forth in sub. (9)(a)5.a. to “[w]hether the officer had probable cause to believe the person was driving or operating a motor vehicle while under the influence of alcohol,” we presume that it would not have included language in the statute indicating that courts must also inquire into “whether the person was lawfully placed under arrest for violation of [an OWI-related statute].”
¶42 We conclude that Wis. Stat. § 343.305(9)(a)5.a. does not limit the circuit court to considering whether, based on all the evidence gathered up until the moment of the arrest, the officer had probable cause to believe the defendant was operating while under the influence of an intoxicant. The language of the statute provides that a defendant may also contest whether he was lawfully placed under arrest. As part of this inquiry, the circuit court may entertain an argument that the arrest was unlawful because the traffic stop that preceded it was not justified by probable cause or reasonable suspicion.
State v. Nordness, 128 Wis. 2d 15, 381 N.W.2d 300 (1986) and Washburn County v. Smith, 2008 WI 23, 308 Wis. 2d 65, 746 N.W.2d 243, explained, ¶39 and id. n. 10 (neither case decided question of whether lawfulness of stop, which wasn’t at issue in either case, could be litigated at refusal hearing). And, as indicated in the blockquote above, constitutionality of a stop may be litigated – in other words, seizure short of arrest, ¶¶40-41 – as indeed becomes the issue here. Note, however, the court’s potentially crucial qualification that it decides only procedure at a refusal hearing, and not at an administrative suspension hearing, § 343.305(8)(b)2., ¶43 n. 12.
A bit of nose-counting is necessary: two justices didn’t participate, leaving a panel of five, and three joined a concurrence (¶¶65-71) which, by virtue of representing a nominal majority of the panel, would constitute a holding – if, in fact, it announced one. But not only is the concurrence not in any conflict with the lead opinion, it explicitly refers to the latter as “the majority opinion,” ¶65. Instead, the concurrence merely intends to explain what the court “does and not address,” id., namely: the court addresses only the refusal charge and does not address procedure pertinent to a separate OWI / PAC charge. The concurrence summarizes the distinctions:
¶68 Likewise, despite the impressions of the circuit court and the parties in the instant case, see majority op., ¶¶17 & n.5, 25 n.7, a refusal hearing is distinct from a hearing that may be held in the prosecution of a separate OWI or PAC charge, such as a suppression hearing. A refusal hearing is a special proceeding in which rules of civil, not criminal, procedure apply. State v. Krause, 2006 WI App 43, ¶9, 289 Wis. 2d 573, 712 N.W.2d 67. In addition, because a refusal hearing is not criminal in nature, the constitutional right to counsel does not attach. Id., ¶11. Moreover, the State’s burden of proof at a refusal hearing is “substantially less than at a suppression hearing.” State v. Wille, 185 Wis. 2d 673, 681, 518 N.W.2d 325 (Ct. App. 1994). At a refusal hearing, the State is required to “present evidence sufficient to establish an officer’s probable cause to believe the person was driving or operating a motor vehicle while under the influence of an intoxicant.” State v. Nordness, 128 Wis. 2d 15, 35, 381 N.W.2d 300 (1986). To that end, the State need persuade the circuit court only that the officer’s account is plausible. Id. at 36; Wille, 185 Wis. 2d at 681. By contrast, at a suppression hearing on an OWI or PAC charge, the State is required to present evidence sufficient to establish that probable cause existed to a reasonable certainty. Nordness, 128 Wis. 2d at 36. A mere possibility is not enough. State v. Paszek, 50 Wis. 2d 619, 625, 184 N.W.2d 836 (1971). Given that difference in burden of proof, it has been the law since 1994 that a defendant, unsuccessful at a refusal hearing, is not precluded from relitigating the issue of probable cause at a subsequent suppression hearing on his or her OWI or PAC charge. Wille, 185 Wis. 2d at 682.
¶69 The instant case concerns a refusal hearing, not a suppression hearing. For purposes of the refusal charge only, this court is deciding that the traffic stop of Anagnos’s vehicle was supported by reasonable suspicion, and therefore, in light of his other concessions, Anagnos improperly refused to take a chemical test for the purpose of determining the presence or quantity of alcohol in his blood or breath. The majority opinion does not address the separate charge against Anagnos for OWI. I write separately to clarify that important distinction.
Back to Anagnos, who wins the battle but loses the war …
Traffic Stop – Reasonable Suspicion
Stop of Anagnos’s vehicle was supported by reasonable suspicion, even assuming absence of any traffic violations:
¶56 When the totality of circumstances is considered in light of the constitutional principle that there need not be a violation of the law to give rise to a reasonable suspicion, a different picture emerges. The facts, as articulated by Deputy Frami, lead to a reasonable suspicion that the driver of the vehicle made a series of unusual and impulsive driving choices, suggestive of impairment.
¶57 In this case, Anagnos first attracted Deputy Frami’s attention when he executed a turn by driving over an elevated median that was five feet, eight inches in width. Deputy Frami testified that it “is not the usual type of barrier you’re expected to be able to cross.” Under these circumstances, an objectively reasonable officer would conclude that Anagnos’s choice to cross that median, rather than turning right and executing a legal U-turn at the break in the median, raised a suspicion that Anagnos was driving in an unusual manner. Much like stopping at an uncontrolled intersection or weaving within a lane, executing a left turn over an elevated median that is more than five feet wide, though arguably not illegal, would encourage a reasonable officer to further monitor the driver.
¶58 Anagnos’s subsequent actions, twice accelerating rapidly and executing a second left turn without signaling, could confirm to a reasonable officer that there was cause for suspicion. That suspicion would reasonably be heightened by the officer’s experience that he is more likely to encounter impaired drivers at 1:15 in the morning.