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Court didn’t err in reopening evidence at refusal hearing

State v. Bartosz Mika, 2019AP1488, District 2, 2/19/20 (one-judge decision; ineligible for publication); case activity (including briefs)

The circuit court appropriately exercised its discretion in continuing Mika’s refusal hearing so the state could call another witness, and the testimony of the additional witness established police had reasonable suspicion to stop Mika.

After Mika was arrested for OWI he refused to submit to a breath test. He time requested a refusal hearing, and at that hearing the state called one witness—the arresting officer, who showed up after Mika was stopped, and so couldn’t give any testimony about the stop itself. (¶¶2-4). After the state rested, Mika moved to dismiss the refusal charge because the state hadn’t produced evidence establishing a basis for the stop, which is one basis for challenging a refusal finding. Wis. Stat. § 343.305(9)(a)5.a.; State v. Anagnos, 2012 WI 64, ¶¶4, 27, 341 Wis. 2d 576, 815 N.W.2d 675. The court agreed there was no evidence on that issue, but instead of granting dismissal the court, over Mika’s objections, reopened the evidence and set the hearing over so the state could call the missing witness. (¶¶5-7). At the continued hearing the officer who made the stop testified, and the court found there was reasonable suspicion for the stop. (¶¶8-10).

A circuit court may, in its discretion and on its own motion, reopen a hearing for further testimony “in order to make a more complete record in the interests of equity and justice.” State v. Hanson, 85 Wis. 2d 233, 237, 270 N.W.2d 212 (1978); Stivarius v. DiVall, 121 Wis. 2d 145, 157, 358 N.W.2d 530 (1984). The circuit court didn’t erroneously exercise its discretion in reopening the evidence here given that Mika didn’t raise a challenge about reasonable suspicion until after the state rested its case. (¶13).

¶14      While it is often the case that the State need only call one officer to provide all the testimony required for a refusal hearing, in this case, the officer who observed Mika’s questionable driving and executed the traffic stop, Fiedler, was different from the officer who conducted most of the OWI investigation with Mika and with whom Mika refused to cooperate with the breath test, Blanchard. Following Mika’s challenge to the stop on reasonable suspicion grounds, the circuit court expressed that it wanted to hear from the deputy who actually made the stop, Fiedler, so it could make its decision on the legality of the stop based upon “a full examination of the facts surrounding this incident.” It is consistent with the interests of justice for a court, as part of its “inquiry” into whether there was a lawful basis for the stop, Anagnos, 341 Wis. 2d 576, ¶4, to make its decision on whether there was a constitutional violation, such as the lack of reasonable suspicion for a temporary investigatory seizure, based upon all the facts available in a case.

The testimony from Fiedler at the continued hearing established that the stop of Mika was lawful. Fiedler had probable cause to believe Mika was impeding traffic in violation of § 346.59(1) by driving extremely slowly. (¶¶18-19). Fiedler also knew police had been dispatched to look for Mika’s car based on a tip from an off-duty deputy, who reported the driver was intoxicated and being disorderly at a local music venue at 10 p.m. (¶¶3, 8, 21).

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