State v. Brooks

Wisconsin, Plaintiff-Appellant, State

v. Defendant-Respondent-Petitioner. Albert E. Brooks,

Supreme Court Argued July 1, No. 82-1280-CR. June 1983. Decided 1983. (Also 354.) reported in 335 N.W.2d argument petitioner and oral there were briefs For the public Lukoff, defender. Mark first assistant argued was the cause plaintiff-appellant the For attorney Mil- for Landgraf, assistant district J. Bruce E. Michael was county, brief whom on with waukee attorney. McCann, district unpublished of an

HEFFERNAN, is a review J. This 1982, appeals dated November decision of the court of county, held that circuit court for Milwaukee Judge, its discretion DOHERTY, P. abused THOMAS charging proceeding a Albert E. Brooks when it dismissed refusing unlawfully with to submit to a chemical-intoxi- 343.305, required provisions cation test of sec. Stats., implied the decision law. We reverse consent appropri- of the circuit the court because ately to when it based exercised its discretion upon pleaded fact dismissal that had Brooks operating to the a motor vehicle and, hence, under the influence while of an intoxicant impose reason for the to sanctions for to take intoxication test had been accom- plished. designed

We hold consent law is persons expedite induce to submit an alcohol test securing evidence to determine whether or not a sus- pected person degree warranting is intoxicated to a a in- operating vehicle while a motor under contrary (OWI), to sec. 346.63 fluence of intoxicant (1), charged OWI, person If who is with on Stats. subsequently evidence, nonchemical-test basis other longer pleads guilty, penal- no need there remains for which has become a test to submit ties failure particular unnecessary case. in the January Brooks arrested on The record shows under the vehicle while 20, 1982, operating a motor of an intoxicant.1 influence alleges that taken, the state

No alcohol test was reason, Brooks, lawful refused to submit to without given however, was, He violation test. citation 1979-1980.2 He was also read his rights 343.305(3) (a) under sec. among which, things, requires other a recital to

person impliedly that a driver has consented to submit to a chemical test on operating demand on condition test, highways and that failure to submit exceptions, subject certain result in the revoca- to could operating privileges than tion of less months six year. nor more than a

Brooks nevertheless refused to the intoxica- to submit Accordingly, required by tion test. arresting

Stats., gave officer him written notice that it was the intent of state a to seek revocation of operating privilege comply Brooks’ for failure to with the implied consent law.

Prior to alleged return date on the citation for the violation of the requested Brooks a hearing, permitted he (b) (3) do sec. 343.305 hearing, Stats. At the the circuit court was informed already pleaded guilty Brooks had underlying to the supports The record the conclusion that Brooks had never be fore been found of OWI. 2 All statutes referred to herein holding are 1979-1980. Our specifically herein addresses itself consequences arising to the under those statutes. 346.63(1), Stats., Sec. OWI statute, has, however, changed by any subsequent not been statu tory revisions. Portions of the have, however, consent law subsequent been revised pur to the events in this case. We do not port to address any changes. ourselves to the effect of of these city municipal of Mil- court for being informed, Judge Upon Circuit Thomas

waukee. so Doherty P. stated: op- basic there has been “[I]f going influence, erating refusal on the I am under the proposition that the was offense, at time this ... at least as it existed support prosecution of the OWI.3 having prosecution of been no frustration “There case, they proceed appropriate I don’t think it’s with the refusal.” the court shows that in the circuit court record municipal Brooks’ action court’s informed of

was guilty. “Yes, Judge. stating, pled counsel The defendant He fined for that and his license.”4 was $400 [OWI] dismissed the circuit court refusal action. court of appealed dismissal order opinion per curiam stated appeals. The court 343.305, Stats., proceeding under sec. proceeding from the of OWI special distinct brought (1). under sec. 346.63 expressed by stating:

The court of its rationale lies an action to dismiss as to whether “The decision court will court and within discretion of this of discretion. abuse not reverse unless there hearing refusal is of a the reasonableness A a the to determine separate special proceeding from distinct prosecution for under the influence under concludes that sec. This court 346.63(1) plea to make the sec. 343.305 re- does not proceeding Accordingly, fusal court holds moot. this it the its discretion trial court abused dismissed the proceeding.” refusal omitted.] [Footnotes 3 January 1982; The date of the was offense the date of the hearing Judge Doherty May 26, before was 1982. 4 point that, petition review, We out undisputed in the the presented fact had, municipal court, paid that Brooks in the appeals reversed reasoning, court the of Based on this the case the circuit circuit and the court remanded proceedings the refusal action.5 We court for further on appeals. of the reverse court pro-

Initially, the we note that whether or not refusal ceeding proceeding separate action or from ques- controlling relevancy not where tion, stated the court and both conceded public office, the state and the defender’s is whether trial court abused its when it “discretion” dismissed following disposition prosecu- case of the OWI tion. separate, Were the question no disposition arise could and the impelled, would have a matter of dis- missal Clearly, of the refusal action. the actions are operating privileges. fine $400 and sustained a of his revocation It ap- was on this state trial of facts court and the court of peals Subsequently, filing made their decisions. after of the ac- ceptance public review, of this case office “cor- defender’s computer printout rected” judg- the record show that the municipal ment rendered in the court recited that Brooks’ license “suspended.” public contemporaneously had been defender pointed only legally permissible penalty out that or correct at “suspension” “revocation,” and, hence, the time was not but imposed by municipal sanction court was the “revocation” of upon license for OWI. The has seized between distinction suspension controlling revocation and as a the outcome factor in pointed out, however, of this case. court, As the court of appeals, petition on this court for review treated action municipal “suspen- court as a “revocation.” The issue sion,” “revocation,” pressed contrasted was never raised nor prior responsive the state to the submission of its brief on this municipal review. We treat the action of the aas revocation regarded by gave —as it was indeed this courts matter prior their attention to this review. Borchardt, (State 82-1279- v. No. We note other cases that two companion Kwiecinski, 82-1281-CR) CR, No. were State v. appeals. in this Review cases to State v. Brooks in the court respect asked to Brooks. court was 352 brought. hold, separately however,

separate To that ones they separate were both actions must be con- because judgment begs question posed by parties. tinued to purpose con- question whether the intimately con- so sent law and the refusal they nected with the law that exist securing prosecutions under evidence to sustain Stats., that, once has been legislative completed by guilty, imposition give potential sanctions Hence, accomplished. test intoxication argument goes, proceeding the refusal should dis- missed, legislative fully because intent has been served. however, concept

We, do not think the of mootness urged by appropriate. Rather, ques- the defendant is assuming whether, judge tion is the trial in correct assumption only purpose his of the con- sent law furnish intoxication, is to evidence of trial judge could, discretion, protect his his calendar and promote efficiency judi- and the conservation of limited by refusing cial resources substantially to undertake a judicial proceeding. useless judge’s hand, legal

On the if predi- other basic erroneous, i.e., legisla- cate was in fact it was the proceedings go ture’s intent to have the refusal to final judgment irrespective disposition charge, dismissing then the act of the trial discretion, was an abuse of for discretion can never be appropriately exercised when based on an error of law. Hutnik, State v. Wis. 2d 763, 159 N.W.2d 733 (1968). question posed fundamental and at issue between

parties legislature is whether the require intended to courts to see to it that hearing in all circum- pur- it a conclusion, to a be tried because served stances pose to the of an OWI unrelated case. argue does attempt that a court not

The state does that to dismiss an action not have the inherent discretion advancing legislative purpose. can in have no effect argue legislature’s purpose What it does is that it was carry udgment hearing j the refusal citation and be- separate types for cause the actions are of conduct and carry separate penalties. that, points The state also out although penalty fine, imprisonment, for OWI revocation, penalty or for refusal to submit to the test is confined to license revocation. The also state as- that, serts penalty, where revocation is the the minimum period always for refusal is in the minimum for excess of that, respect, OWI. We note in this latter state is error, only somewhat for assertion is true rehabilitative treatment is offered the court and ac- cepted by the driver. Otherwise, periods the minimum subsequent second applicable offenses under the law are the 343.30(lq)d same. Sec. 343.305(9) (d), argues that state also were production intended to coerce of reliable of in- evidence toxication and that to allow a driver to cure an unlawful refusal a legisla- to OWI thwarts that purpose. tive appears argue state the evi- importance dence of intoxication has an transcends guilt question particular or not in the case—that importance system justice it is of to know the percentage of blood a alcohol in driver in each case— apparently purposes. for statistical also, as set forth above in footnote for the quibbles first time over whether defendant was “sus- pended” rather than “revoked.” Under the law in effect case, “suspension” for this appropriately was not avail- Also, able. it apparent should be to the state that we did making accept jurisdiction a deci- it existed

sion on this narrow basis. Under law as judgment suspension statutes, 1979-1980 under the erroneously could be entered when court in an indi- judgment. vidual case misdenominated its did not We municipal possible take this to correct case court’s error in semantics. although

Finally, that, the state asserts it were deter- immediately practical consequences mined that no could finding yet made, if a wilful ensue such finding appear would thereafter record. driver’s contempt Such a record would show a laws and, stigma hence, would serve as a on the miscreant’s prosecutorial judicial record for guidance. future and arguments unpersuasive. indicated We find these As above, separate proceedings whether there are two although clearly Suspension there are. immaterial — of Operating Privilege Bardwell, 891, 902, 2d 266 Wis. of (1978). immediately N.W.2d 618 But apparent it must be fundamentally they that actions, are not unrelated single both arise out of the same basic occurrence —a alleged episode driving of while under the influence. Moreover, penalty of revocation for refusal cannot be wholly imposed consecutive to one for OWI. Under sec. 343.305(9) (e), Stats., period imposed of revocation implied under the consent law must be by reduced period any revocation pen ordered under the OWI alties. question penalty

The crux of the is whether the refusal implied purpose separate consent law serves from the OWI law or whether it is intended to be an aid to prosecutions. impose penalties solely Is its intent to coercing purpose persons to submit to an in- penalties toxication or test are the structured in such a way possibility greater penalties under the guilty pleas of calculated to induce law is underlying charge a driver that, The fact of OWI. greater test, subject does not submit to he penalties subject had than he would have been he sup- taken and been to be intoxicated the test determined ports proposition purpose pro- of the refusal guilty plead accept cedure to induce a driver penalties that imposed would same have been had the by guilt proved a blood-alcohol test. valid, the to be rationale, which believe we this

Under penalize drunk drivers purpose law—to of the refusal guilty plea guilty finding satisfied them —is penal- By to avoid the refusal conduct calculated OWI. laws, purpose both pleading ties —the —the implied in accord- and the consent are served legislative ance with the will. philosophy relationship

This between OWI long penalties consent law has been stated this court. In a recent case this court said: alcohol test is to facili- “The sole of the blood influ- tate of those under the while Welsh, v. 2d ence of an intoxicant.” State 336-37, 108 Wis. granted (1982), on other 321 N.W.2d 245 cert grounds,-U.S.-(1983). Neitzel, we said: In State v. law is to behind “The gathering against driv- facilitate ers. Scales v. of evidence drunk State, 64 2d 286 Wis. 219 N.W.2d (1974).” Neitzel, 191, 203, State v. 95 2dWis. 289 (1980).

N.W.2d supra, purpose Bardwell, law was In we said the of the evi- content in order to obtain obtain blood-alcohol prosecute was dence to drunk drivers. Such evidence improve needed to the rate of convictions so that those punished who drive while intoxicated would be and so that others are deterred from while drunk. The purpose only if there law can serve its unlawfully revoking This en- penalties for consent. are courages are arrested to take the test so those who can be secured. Those who refuse still convictions they trial, after a if are be convicted of OWI but even they (although not, face revocation forfeiture or imprisonment subsequent offenses) for second and Thus, gained refusing. the refusal. there is little to be accurate, scientific of blood-alcohol level evidence However, to be used to secure convictions. longer guilty OWI, pleads individual there is no need for such evidence. The has been conviction secured. imposed legislatively penalty has chosen on the Thus, purpose offender. ultimate con- sent law—successful of drunk drivers —has Accordingly, appropriate accomplished. it proceeding. sense, driver refusal In a up cooperating made refusal his with the authori- pleading guilty. in ties

Contrary state, to the assertion of such conduct adopted by Judge Doherty in case—the the instant exercise of discretion to dismiss if underlying charge there ais to of OWI —is drunk-driving not antithetical laws. promotes It supports

law to secure get convictions of drunk drivers and to highways. them off the that, because, cases, think state seems to in some

driver could receive a somewhat shorter revocation refusal, leg- the OWI conviction than for an unlawful judgment islature separate intended that there be a cases, however, each. In all the maximum revocation period Accordingly, same. if the maximum revoca- imposed proceeding, periods tion should be each period would be offset one maximum revo- cation could be effective. legislative purpose reasonably apparent who refused take a driver had to offer

scheme was carrot of conviction test the bitter intoxication pen- of a harsher stick refusal instead of somewhat legislative appar- alty. scheme, purpose ently by practice utilized purpose has been realized by Judge likely Doherty, make an indi- is to it less charge. vidual contest would Once there case, been a refusal to take test as in the instant plead guilty driver will be induced to the offense being may a drunk if driver, appropriately the court by dismissing exercise its discretion procedure following Judge ap- conviction Doherty’s OWI. proach problem to the served get

the law—to convict drunk drivers and them off the road and with the disruption minimum of trial court judgment calendars. While a double obtained re- —if spect proceedings to the refusal and the OWI—can serve imposing stigma some on the refuser a scofflaw and as a drunk driver, we that a conclude may trial court appropriately exercise discretion and de- upon system insisting cide that wound the court on two kept when one have would drunk highway greater driver from jus- is a assault on the system tice than giving warranted driver drunk comparatively second but penalty. nominal We discretion, believe exercise of in this case, may tendency well have the to in- crease OWI as well convictions as to conserve limited judicial by encouraging guilty pleas resources and reduc- ing consuming the number of hearings. time arguments raises additional it asserts support position its that the trial court not exercise although its refusal action there drunk-driving charge. has been a Stats.,6 967.055(2), 1981-1982 on The state relies sec. may argues that a court in its court of brief and brought under sponte is sua not dismiss 346.63(1) (refusal), or (OWI) sec. 343.305 either sec. and, hence, to the court has no discretion dismiss either contrary very statute leads The of these two cases. limited is court’s discretion It is the inference. prosecutor requires the The statute prosecutor’s. the but prosecutor apply court, “if seeks to dismiss the to to Moreover, charge.” (Emphasis supplied.) or amend provisions 967.055(2) apply of sec. are “[n]ot- withstanding general s. 971.29.” 971.29 is a statute Sec. subject to some conferring prosecutors right, upon complaints informa- conditions, or criminal to amend prose- 967.055(2) further curtails the Thus, tions. sec. agreement discretion, cutorial the court. absent is the statute court’s unfettered 967.055(2) upon which the state relies. While sec. case, apparently pertinent not in at effect to this times argue legislature’s appears to that it the state declares presently intended limitation on trial court discretion. As above, pointed nothing out it does of the kind. To the legis- all, 967.055(2) relevant at it shows a extent amending charges; Dismissing operating a motor “967.055 or vehicle; alcohol, intoxicant or substance. controlled Dismissing Amending Charge. “(2) Notwithstanding or s. 971.- prosecutor if the to dismiss amend a under s. seeks or 346.63(1) conformity therewith, s. or a local ordinance or 346.63 (2) 940.25, or or s. 940.09 where the offense involved use of a improper prosecutor 343.305, vehicle an under s. or shall apply application state the the court. shall reasons for proposed ap- approve or amendment dismissal. court plication only proposed if the finds that amendment or public’s deterring consistent interest dismissal with operation by persons of motor vehicles are influ- who under intoxicant, a ence of an substance or controlled both. right a dis- prosecutor’s to curtail a to seek lative intent nothing power with the a court in missal. It has to do trig- general discretionary could instance facts ger a dismissal court. general purpose be-

Accordingly, we conclude that relating influ- operating while under hind laws alcohol to take ence of intoxicants expeditiously get as drunk off the road tests —to drivers possible disruption possible with little dis- served the exercise of court’s calendar —is best dismissal a refusal there cretion in the of case once has guilty charge. plea been a of the OWI discretionary power that the to dismiss is We stress may where the court one. There be circumstances particular not to dismiss the refusal conclude in case charge although taken. been of OWI has justified can as a Whether such refusal to dismiss be proper dependent upon of exercise discretion will be particular ambience of case. appropri- the trial court in this case that

We conclude ately it its reasoned exercised discretion penalties for re- real of law and the fusing expedite test the conviction an alcohol judge correctly gave his basic drunk drivers. having facts, no rationale under the “There frus- case, tration of the I don’t think they proceed appropriate it’s with the refusal.” in a trial court exercised its Because purpose of with the manner consistent proceeding. uphold the dismissal we By re- of the court of the Court. —Decision versed. (dissenting). An and an J.

Steinmetz, charges should unlawful refusal are distinct prosecutions. Significantly, separate treated be legislature placed these violations in two sections has (OWI statutes, in the “Rules (refusal Road”) “Opera- and sec. 343.305 Licenses”). implied A violation of tors’ consent stat- upon request at ute occurs the time defendant refuses at time of It does not occur to the test. submit only under the influence of intoxicants. while that one must connection between two violations is already implied under arrest for OWI for an consent to occur. violation judge’s assumption that the

By agreeing with only purpose implied law to furnish evi- consent majority jumps intoxication, from an un- dence foregone assumption to a conclusion. warranted to that in State closest this court has come rationale was Neitzel, 191, 203, (1980), v. 2dWis. 289 N.W.2d 828 implied where we said: “The behind the consent gathering against law is to facilitate the of evidence first this drunk drivers.” This case is the time purpose. I said the consent law has pur- law has an additional believe pose. It intended to is also enforce the conditions that imposed privilege operat- are on drivers afforded the ing a motor vehicle on Wisconsin roads. reasoning majority’s apparent is when

A flaw in considering charged with a defendant who is OWI guilty refusal, pleads not unlawful subsequently found at trial. Ac- and is cording majority’s logic, it would within the dis- judge proceed- trial cretion dismiss the refusal ing unnecessary since chemical test evidence was to se- cure the words, OWI conviction. In other consent law had served no under I these facts. entirely inappropriate think it to dismiss under such cir- law, a defendant implied consent cumstances. Under if with authorities cooperate at the time of arrest must consequences. requested to a test or to submit suffer reasoning that con- disagree majority’s I with also proper factor judicial resources limited servation of deciding been an if abuse there has to consider dismissing proceeding. I am well calendars. How- problem of crowded court aware of ever, efficiency justification promoting to dismiss is no judge proceeding. A has no discretion to dis- a refusal pro- of a violation of the miss a requested by attorney1 district vision unless or if insufficient. the evidence is appeals.

I affirm the court would B. Justice ROLAND I am authorized dissenting opinion. joins in this DAY attorney with the district discretion that rests evidenced provides: 343.305(8) (b)2c, (1979-1980) “This see. preclude person section does not for violation conformity 346.63(1) or a local ordinance therewith.” s.

Case Details

Case Name: State v. Brooks

Court Name: Wisconsin Supreme Court

Date Published: Jul 1, 1983

Citation: 335 N.W.2d 354

Docket Number: 82-1280-CR

Court Abbreviation: Wis.