Village of Little Chute v. John D. Bunnell, 2012AP1266, District 3, 11/14/12
Officer’s failure to perform FSTs pursuant to established protocols (HGN test requires 4-second pass-of-the-eye, and officer used 2-second pass), “compromises the validity of the test results,” and therefore “cannot be used to support a determination of probable cause to arrest,” ¶19. Grounds for OWI arrest nonetheless existed:
¶20 However, even without the HGN observations, we agree with the Village that, based on Boucher’s other observations, Boucher had probable cause to arrest Bunnell for OWI. At the moment Boucher arrested Bunnell, Boucher knew Bunnell had been driving at 11:45 p.m. without his headlamps illuminated and had observed Bunnell pull out in front of another vehicle while making a turn. It is dangerous to drive at night without headlamps illuminated and to pull out in front of an oncoming vehicle. See State v. Rutzinski, 2001 WI 22, ¶34, 241 Wis. 2d 729, 623 N.W.2d 516 (observations of dangerous driving can lead to inference that individual is operating while intoxicated). Further, Bunnell smelled of intoxicants, he admitted he had been drinking, and his eyes were glassy. Bunnell also refused to participate in the remaining field sobriety tests. See State v. Babbitt, 188 Wis. 2d 349, 363, 525 N.W.2d 102 (Ct. App. 1994) (refusal to participate in field sobriety tests can be used to support probable cause to arrest). Based on Bunnell’s dangerous driving, glassy eyes, odor of intoxicants, admission he had been drinking, and refusal to participate in the remaining field sobriety tests, Boucher had probable cause to arrest Bunnell for OWI.
¶21 Because Boucher had probable cause to arrest Bunnell for OWI and because the circuit court determined Boucher read Bunnell the Informing the Accused form and Bunnell refused to submit to a chemical test, Bunnell’s refusal was improper. We therefore reverse the circuit court’s judgment of dismissal and direct the court to revoke Bunnell’s operating privileges pursuant to Wis. Stat. § 343.305(9) and (10).
OWI – Refusal, as Evidence of Impairment
Improper refusal to submit to a chemical test may be argued as evidence of impairment:
¶25 We conclude the circuit court erred by withholding its refusal determination until after the jury rendered its verdict in the OWI trial and by preventing the Village from relying on the refusal for evidence of impairment. First, a refusal hearing centers, in part, on whether there was probable cause to arrest a defendant for an OWI-related offense. SeeWis. Stat. § 343.305(9)(a)5.a. It makes little sense for a court to determine whether an officer had probable cause to arrest after the defendant’s OWI jury trial. The lawfulness of an OWI arrest can impact an OWI trial.
¶26 Second, it is well-established that evidence of a person’s refusal to submit to a chemical test supports an inference that the person was driving while under the influence of alcohol. See State v. Crandall, 133 Wis. 2d 251, 257, 394 N.W.2d 905 (1986) (Refusing to take a chemical blood test “not only violates the consent impliedly given under the statute, it reflects consciousness of guilt by the accused.”). The prosecution is permitted to rely on evidence of a refusal to suggest the defendant was impaired. See id; see also State v. Draize, 88 Wis. 2d 445, 454, 276 N.W.2d 784 (1979) (In closing arguments, a “prosecutor may comment on the evidence, detail the evidence, [and] argue from it to a conclusion.”). Evidence of a refusal is important in an OWI trial because defendants who submit to chemical tests have their results presented at trial and “[f]airness would indicate the defendant failing to submit to the test should not be put in a superior position” by preventing the prosecution from mentioning the refusal. Crandall, 133 Wis. 2d at 259.
¶27 Here, Bunnell improperly refused the chemical test. Because this improper refusal deprived the Village of a chemical test result, the Village was permitted to rely on Bunnell’s refusal as evidence of impairment. However, the circuit court, through its delayed, and ultimately incorrect, refusal determination, erroneously prevented the Village from relying on Bunnell’s refusal as evidence of impairment. Specifically, the Village was not permitted to argue to the jury that Bunnell’s refusal suggested he was impaired, and the jury was not instructed it could consider the refusal when making its impairment determination. On appeal, Bunnell does not argue that these errors were harmless. See State v. Carter, 2010 WI App 37, ¶22, 324 Wis. 2d 208, 781 N.W.2d 527 (beneficiary of trial error must prove error is harmless). Therefore, we reverse and remand for a new OWI trial.