State v. Marshall

2002 WI App 73, 642 N.W.2d 571, 251 Wis. 2d 408, 2002 Wisc. App. LEXIS 147

• Court: Court of Appeals of Wisconsin
• Decided: February 5, 2002
• Docket: 01-1403-CR
• Status: Published

Opinions

CURLEY, J.

¶ 1. Donald D. Marshall appeals from a judgment entered after he pled guilty to one count of operating a motor vehicle while intoxicated (OWI) (fifth offense), contrary to Wis. Stat. § 346.63(l)(a) (1999-2000).¹ Marshall also appeals from the trial court's order denying his postconviction motion. Marshall claims that: (1) his trial counsel was ineffective for failing to move to suppress the blood alcohol evidence, which he alleges was obtained in violation of Wis. Stat. § 343.305(9)(a); and (2) two "new factors" establish grounds for modification of his sentence. We disagree and affirm.

I. Background.

¶ 2. On February 18, 2000, City of Cudahy Police Officer Mark Bozeil responded to a complaint of a "potential drunk driver" operating a four-door Honda vehicle. Officer Bozeil located the Honda and immediately followed the vehicle. After approximately two blocks, the driver stopped at a stop sign. After stopping for an unusually long period of time, the driver of the Honda started to pull into the intersection but quickly stopped when his vehicle was almost struck by a westbound vehicle which did not have a stop sign. The officer activated his emergency lights and the driver of the Honda, Marshall, pulled to the curb.

¶ 3. Upon approaching Marshall's vehicle and leaning his head down to the open car window, the officer detected a strong odor of alcohol. He also observed that Marshall's speech was slurred and his eyes were red and glassy. Marshall soon admitted that he had consumed about "three beers or so." The officer attempted to have Marshall perform field sobriety tests, but Marshall was unable to stand without assistance. After failing a preliminary breathalyzer, Marshall was placed under arrest.

¶ 4. Marshall was then transported to St. Luke's Hospital where he was read the "Informing the Accused" form. Marshall refused to submit to a voluntary blood draw, stating that the police would have to "restrain him." Marshall stated in an affidavit that subsequent to his refusal, that a captain or lieutenant of the Cudahy Police Department came into the room where he was seated, showed him a big bag of colored straps, and told him that he was either going to submit to the blood draw or he and other police officers were going to physically strap him down and take his blood regardless of his wishes. Marshall then consented to the. blood draw and to an intoximeter test of his breath. These tests revealed a blood alcohol content of .224% by weight of alcohol in Marshall's blood, and .17 grams of alcohol in 210 liters of Marshall's breath, both well above the legal limit. On April 24, 2000, Marshall, without filing any motions to suppress the evidence, entered a guilty plea to operating a motor vehicle while intoxicated (fifth offense).

II. Analysis.

A. Marshall's trial counsel was not ineffective.

¶ 5. The familiar two-pronged test for ineffective assistance of counsel claims requires defendants to prove: (1) deficient performance, and (2) prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Bentley, 201 Wis. 2d 303, 311-12, 548 N.W.2d 50 (1996). To prove deficient performance, a defendant must show specific acts or omissions of counsel that were "outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690. To prove prejudice, a defendant must show that counsel's errors were so serious that the defendant was deprived of a fair trial and a reliable outcome. See id. at 687. In other words, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.

¶ 6. Ineffective assistance of counsel claims present mixed questions of fact and law. State v. Pitsch, 124 Wis. 2d 628, 633-34, 369 N.W.2d 711 (1985). A trial court's factual findings must be upheld unless they are clearly erroneous. State v. Harvey, 139 Wis. 2d 353, 376, 407 N.W.2d 235 (1987). Whether counsel's performance was deficient and, if so, whether the deficient performance prejudiced the defendant are questions of law, which we review de novo. Pitsch, 124 Wis. 2d at 634. The defendant has the burden of persuasion on both prongs of the test. See Strickland, 466 U.S. at 687.

¶ 7. Marshall asserts that Wis. Stat. § 343.305(9)(a) provides the exclusive option for law enforcement when faced with an arrestee who refuses to submit samples of his or her breath, blood or urine for testing. Thus, Marshall argues that his trial counsel was ineffective for failing to move to suppress the blood alcohol evidence, which he alleges was taken in violation of Wis. Stat. § 343.305(9)(a), because law enforcement has no right, under the implied consent law, either to forcibly withdraw blood without an arrestee's consent or to obtain an arrestee's consent by threatening to forcibly withdraw blood.

¶ 8. Wisconsin Stat. § 343.305(9)(a) states, in relevant part: "If a person refuses to take a test under sub. (3) (a), the law enforcement officer shall immediately take possession of the person's license and prepare a notice of intent to revoke, by court order under sub. (10), the person's operating privilege." In concluding that this is an arresting officer's only recourse upon an arrestee's refusal to submit to chemical testing, Marshall relies on language from County of Ozaukee v. Quelle, 198 Wis. 2d 269, 542 N.W.2d 196 (Ct. App. 1995), in which this court stated:

Every driver in Wisconsin impliedly consents to take a chemical test for blood alcohol content. A person may revoke consent, however, by simply refusing to take the test. Thus, a driver has a "right" not to take the chemical test (although there are certain risks and consequences inherent in this choice). The legislature recognized that drivers being asked to take a chemical test should be informed of this choice and therefore requires law enforcement officers to provide drivers with certain information.

Id. at 277-78 (citations omitted).

¶ 9. While Marshall correctly concludes that Wis. Stat. § 343.305 does not authorize a forcible withdrawal of blood, see State v. Krause, 168 Wis. 2d 578, 585-86, 484 N.W.2d 347 (Ct. App. 1992), he incorrectly assumes that the implied consent law provides the exclusive alternative for law enforcement when faced with a suspect who refuses chemical testing. As noted in Krause:

[I]n sec. 7, ch. 193, Laws of 1977, the legislature repealed and recreated the implied consent law, eliminating the language in sec. 343.305(2)(b), Stats. (1975-76), which stated, "If the person refuses the request of a traffic officer to submit to a chemical test, no test shall be given . ..." By this statutory change, the legislature removed from Wisconsin drivers absolute control of whether a chemical test will be administered. Whether or not such evidence can be obtained should not depend on the arrestee's cooperation with law enforcement officers. To adopt that reasoning would result in a "premium given to the more obstreperous drunk driver who is more successful in forcibly resisting the withdrawal of a blood sample."

Id. at 586 n.3.

¶ 10. Marshall's specific challenge to the implied consent statute has been addressed and rejected in State v. Gibson, 2001 WI App 71, 242 Wis. 2d 267, 626 N.W.2d 73. In Gibson, the court was presented with the same issue raised by Marshall, i.e., "whether the implied consent law provides the exclusive remedy upon a refusal to submit to evidentiary testing so that law enforcement cannot obtain evidence by other legal means." Id. at ¶ 6. Like Marshall, Gibson was arrested for OWI and initially refused to take the requested blood test. Id. at ¶ 3. After the arresting police officer indicated that there was no other way Gibson was going to be able to get out of the situation and after informing him that the penalties would be increased if he refused the test, Gibson submitted to the blood test, which showed a .248 blood alcohol concentration. Id. In upholding the trial court's admission of the results of the blood test into evidence, this court stated, "the implied consent statute does not restrict the police from using other constitutional means to collect evidence of the driver's intoxication." Id. at ¶ 12.

¶ 11. Further, in Gibson, this court clarified that Quelle does not support the conclusion that Wis. Stat. § 343.305(9)(a) is the only remedy upon refusal:

[R]eliance on Quelle is misplaced for two reasons. First, Quelle did not address the issue at hand; it was a "subjective confusion" case. The court therefore did not have an opportunity to evaluate its observation in light of the arguments Gibson raises. It did not consider whether a suspect's refusal must be honored in all instances. Thus, when placed in proper context, it appears that the Quelle court merely concluded that an OWI suspect has the right not to voluntarily take a test, by "revoking" consent. This construction comports with the cases that consistently hold that, under appropriate circumstances, a suspect's blood may be withdrawn regardless of consent.

Second, and most important, under Gibson's interpretation!;,] this passage from Quelle directly contradicts our supreme court's repeated holding that a driver in this state has no right to refuse to take a chemical test. The consent is implied as a condition of the privilege of operating a motor vehicle upon state highways. By implying consent, the statute removes the right of a driver to lawfully refuse a chemical test.... Thus, the language in Quelle notwithstanding, [a suspect] does not have a right to refuse to submit to evidentiary testing.

While at first blush it may arguably appear that the implied consent statute supplies the exclusive remedy for its violation, it does not follow that it precludes law enforcement from pursuing other constitutional avenues for collecting evidence of a traffic violation.

Gibson, 2001 WI App 71 at ¶¶ 8-10 (emphasis added) (citations omitted).

¶ 12. Thus, because a forcible warrantless blood draw does not violate the Fourth Amendment if the conditions specified in Bohling² are satisfied, see State v. Wodenjak, 2001 WI App 216, ¶ 10, 247 Wis. 2d 554, 634 N.W.2d 867, applying the rationale of Gibson, we are satisfied that even if an arrestee refuses to submit to a voluntary blood test, an officer may acknowledge the refusal, complete the "Notice of Intent to Revoke Operating Privilege" form as provided by Wis. Stat. § 343.305(9)(a), and then proceed with an involuntary blood test as the basis for the operating a motor vehicle with a prohibited blood alcohol concentration (PAC) charge and in support of the operating a motor vehicle while intoxicated charge.

¶ 13. However, the following question naturally arises: What is the significance of having the right to refuse voluntary chemical testing, when law enforcement may force testing regardless of consent? See Quelle, 198 Wis. 2d at 277-78; see also State v. Piddington, 2001 WI 24, ¶ 18, 241 Wis. 2d 754, 623 N.W.2d 528 (dealing with the manner in which law enforcement informs apprehended drivers about their rights and responsibilities under the implied consent law). The answer is that a driver who refuses to submit to chemical testing faces certain risks and consequences that are entirely independent from the OWI/PAC offense. As illustrated in State v. Zielke, 137 Wis. 2d 39, 403 N.W.2d 427 (1987):

[T]wo separate substantive offenses are potentially operative in all prosecutions involving intoxicated use of a vehicle. The first... is refusing to submit to a chemical test under sec. 343.305(2), Stats. If a driver refuses to take a test he or she faces automatic license revocation. The second substantive offense may involve operating while intoxicated (OWI), sec. 346.63[(l)(a), operating with a prohibited alcohol concentration, sec. 346.63(l)(b),] homicide by intoxicated use of a vehicle, sec. 940.09, or injury by intoxicated use of a vehicle, sec. 940.25 ....

The refusal procedures.. . are separate and distinct from prosecution for the offense involving intoxicated use of a vehicle.

This ... demonstrates the separateness of the civil refusal proceeding set forth in sec. 343.305 and the underlying criminal offenses involving operating a motor vehicle while intoxicated set forth in secs. 346.63, 940.09 and 940.25.

Id. at 47-49. Therefore, Gibson and Zielke stand for the proposition that while the implied consent statute provides an incentive for voluntary chemical testing, i.e., not facing civil refusal procedures and automatic revocation, voluntary testing is not the exclusive means that blood, urine or breath samples may be constitutionally obtained.

¶ 14. Additionally, the supreme court's concern in Piddington over the comprehensibility of the implied consent warnings is not rendered irrelevant by this conclusion. Rather, "[t]he opportunity to introduce the fact of refusal presupposes that a defendant has been advised of his or her rights as required by sec. 343.305(3)(a), Stats." Zielke, 137 Wis. 2d at 50. Thus, reasonable convey- anee of the implied consent warnings is a prerequisite to revocation based on refusal or use of the fact of refusal in the subsequent prosecution for OWI or PAC. See id.

¶ 15. Marshall claims that because the police explicitly threatened to physically strap him down, his situation is significantly distinguishable for Fourth Amendment purposes from the situation in Gibson, where the arresting officer only implicitly threatened the use of force. We disagree. Because law enforcement personnel may use reasonable force to withdraw blood from a noncompliant suspect, see Wodenjak, 2001 WI App 216 at ¶ 7, they may necessarily inform a suspect that such a procedure is a possibility upon his or her refusal.

¶ 16. Therefore, Marshall's contention must ultimately rest on one of the following: (1) Gibson is unconstitutional; or (2) the Bohling requirements were not met. First, because we "may not overrule, modify or withdraw language from a previously published decision of the court of appeals," see Cook v. Cook, 208 Wis. 2d 166, 190, 560 N.W.2d 246 (1997), we cannot alter the constitutional standard established in Gibson. See State v. Thorstad, 2000 WI App 199, ¶ 11, 238 Wis. 2d 666, 618 N.W.2d 240. While adhering to Gibson, we also take this opportunity to point out a possible inconsistency. See Cook, 208 Wis. 2d at 190 ("[T]he court of appeals may decide the appeal, adhering to a prior case but stating its belief that the prior case was wrongly decided.").

¶ 17. In Quelle, this court stated, "a driver has a 'right' not to take the chemical test." Quelle, 198 Wis. 2d at 277. This court did not state, as concluded by the Gibson court, "a driver has only the 'right' not to take a voluntary test." Id. We note that Gibson's addition of the word "voluntary" may seem to minimize the importance of the "right" outlined in Quelle. It appears contradictory to state, on the one hand, that a driver has a right not to take a chemical test, and then, less than six years later, state that a driver must take a chemical test.

¶ 18. Thus, because "we are presented with a published decision of our court that arguably overrules, modifies or withdraws language from a prior published decision of this court, we must first attempt to harmonize the two cases." Garfoot v. Fireman's Fund, Ins. Co., 228 Wis. 2d 707, 723, 599 N.W.2d 411 (Ct. App. 1994). "That is, if there is a reasonable reading of the two cases that avoids the second case overruling, modifying or withdrawing language from the first, that is the reading we must adopt." Id. In an attempt to harmonize Gibson and Quelle, we conclude that, based on the long line of cases holding that a suspect's blood may be drawn regardless of consent, see, e.g., Wodenjak, 2001 WI App 216 at ¶ 10, the Gibson court simply clarified, rather than modified, the right of refusal outlined in Quelle-, i.e., that a suspect's right of refusal is limited to the right to refuse to submit to a voluntary blood draw.

¶ 19. Second, because Marshall fails to assert that the Bohling requirements were not met, we decline to address the issue. See State v. Pettit, 171 Wis. 2d 627, 647, 492 N.W.2d 633 (Ct. App. 1992) (stating that the court of appeals may decline to review an issue inadequately briefed). Accordingly, because evidence of Marshall's blood alcohol concentration was properly obtained under Gibson, we conclude that Marshall's trial counsel was not ineffective for failing to object to its admission into evidence.³

B. Marshall is not entitled, to sentence modification based on "new factors."

¶ 20. Marshall claims that two "new factors" establish grounds for modification of his sentence: (1) the restraining order case against him was dismissed for lack of proof, not because of criminal charges being issued as assumed by the trial court; and (2) the trial court relied on sentencing guidelines which predated the truth-in-sentencing law, even though he was sentenced under the truth-in-sentencing law. Marshall concludes that these "new factors" are significant and that his sentence would have been less severe if these errors had not occurred. We disagree.

¶ 21. "Whether a set of facts is a 'new factor' is a question of law which we review without deference to the trial court." State v. Michels, 150 Wis. 2d 94, 97, 441 N.W.2d 278 (Ct. App. 1989). "Whether a new factor warrants a modification of sentence rests within the trial court's discretion." Id.

¶ 22. "[T]he phrase 'new factor' refers to a fact or set of facts highly relevant to the imposition of sentence, but not known to the trial judge at the time of original sentencing, either because it was not then in existence or because, even though it was then in existence, it was unknowingly overlooked by all of the parties." Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975). However, the case law since Rosado has limited the "new factor" standard to situations where the new factor frustrates the purpose of the original sentencing. Michels, 150 Wis. 2d at 97. Thus, "[tjhere must be some connection between the factor and the sentencing - something which strikes at the very purpose for the sentence selected by the trial court." Id. at 99.

¶ 23. Here, no such connection exists. With regard to the restraining order, in denying Marshall's motion for sentence modification, the trial court stated:

The defendant also seeks sentence modification on new factor grounds. First, he contends that the presentence report erroneously indicated that his ex-girlfriend failed to obtain a permanent restraining order against him because criminal charges were issued when in fact the permanent restraining order was dismissed for failure of proof. Even so, the court did not rely upon this information in determining sentence, and therefore, a modification of the sentence is not warranted on these grounds.

Marshall provides this court with no evidence to the contrary. Therefore, because Marshall has failed to prove that the trial court relied on the inaccurate information in the presentence investigation report, we reject his first claim. See State v. Anderson, 222 Wis. 2d 403, 408, 588 N.W.2d 75 (Ct. App. 1998) ("A defendant who requests resentencing must show that specific information in the [presentence investigation report] was inaccurate and that the court actually relied upon the inaccurate information in sentencing.").

¶ 24. Marshall's second argument raises significant constitutional arguments that he fails to adequately develop. Thus, we decline to address his broad assertion that the trial court improperly relied on pre-truth-in-sentencing guidelines. See Cemetery Servs., Inc. v. Department of Regulation and Licensing, 221 Wis. 2d 817, 831, 586 N.W.2d 191 (Ct. App. 1998) ("Constitutional claims are very complicated from an analytic perspective, both to brief and to decide. A one or two paragraph statement that raises the specter of such claims is insufficient to constitute a valid appeal of these constitutional issues to this court. For us to address undeveloped constitutional claims, we would have to analyze them, develop them, and then decide them. We cannot serve as both advocate and court. For this reason, we generally choose not to decide issues that are not adequately developed by the parties in their briefs.").

¶ 25. Based upon the foregoing reasons, the judgment and order are affirmed.

By the Court. — Judgment and order affirmed.

1 All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

2 "[A] warrantless blood sample taken at the direction of a law enforcement officer is permissible under the following circumstances: (1) the blood draw is taken to obtain evidence of intoxication from a person lawfully arrested for a drunk-driving related violation or crime, (2) there is a clear indication that the blood draw will produce evidence of intoxication, (3) the method used to take the blood sample is a reasonable one and performed in a reasonable manner, and (4) the arrestee presents no reasonable objection to the blood draw." State v. Wodenjak, 2001 WI App 216, ¶ 7, 247 Wis. 2d 554, 634 N.W.2d 867 (citing State v. Bohling, 173 Wis. 2d 529, 533-34, 494 N.W.2d 399 (1993)).

3 Marshall also alleges that the trial court erred in failing to conduct an evidentiary hearing regarding his postconviction motion. However, because we have concluded that Marshall is not entitled to relief, it was within the trial court's discretion to deny Marshall's postconviction motion without a hearing. See State v. Bentley, 201 Wis. 2d 303, 310-13, 548 N.W.2d 50 (1996).