State v. Welsh

321 N.W.2d 245, 108 Wis. 2d 319, 1982 Wisc. LEXIS 2729
Wisconsin Supreme Court·Decided July 2, 1982·No. 80 — 1686·Published·Cited by 42 cases

Opinions

WILLIAM G. CALLOW, J.

This is a review of a May 26, 1981, decision of the court of appeals vacating an order of Dane County Circuit Judge Mark A. Frankel and remanding the matter to the circuit court for further proceedings. We reverse the decision of the court of appeals and affirm the order of the circuit court. The trial court revoked the defendant’s motor vehicle operator’s license for sixty days pursuant to his unreasonable refusal to submit to a breathalyzer test, as required by sec. 343.305(2) (a),.Stats. 1977,1 after having been issued a citation for the operation of a motor vehicle while under the influence of an intoxicant. Section 346.63(1), Stats. 1977.2

[321] The defendant challenges the officer’s warrantless arrest in his residence as violating the Fourth Amendment of the United States Constitution and Article I, section 11 of the Wisconsin Constitution.3 The circuit court upheld this warrantless arrest concluding that probable cause to believe that the defendant had been operating a motor vehicle while under the influence of an intoxicant, coupled with the existence of exigent circumstances, justified the officers’ entry into the defendant’s residence. The defendant appealed from this circuit court order, and a single judge of the court of appeals reversed the trial court, holding that, although the officers’ warrantless arrest was unreasonable, thereby violating the Fourth and Fourteenth Amendments, the absence of a finding regarding a consensual entry necessitated remanding the case on that issue. We affirm the findings of the circuit court, holding that the co-existence of probable cause and exigent circumstances in this case justifies the warrant-less arrest and obviates any further discussion concerning the issue of consensual entry.

Prior to resolving the merits of this case, the state challenges the single-judge ruling of the court of appeals, contending that this should have been decided by a three-judge panel. Section 752.31(2), Stats. 1977, provides a [322] categorization of cases subject to review by a single court of appeals judge, as opposed to a three-judge panel.4 This dispute focuses on whether the defendant’s unreasonable refusal to submit to a breathalyzer test pursuant to sec. 343.305(2) (a), Stats. 1977, falls within the purview of sec. 752.31(2) (c), Stats. 1977, authorizing a single-judge appeal in cases involving violations of traffic regulations. The state contends that the statutory penalty imposed for violation of a traffic regulation, as defined in sec. 345.20(1) (a), Stats. 1977, is a forfeiture. According to sec. 288.01, Stats. 1977, however, a forfeiture is defined as “any penalty, in money or goods” and the penalty pursuant to violating sec. 343.305, Stats. 1977 is a suspension of operating privileges. Consequently, the state argues that a suspension is not a forfeiture and therefore is not included within the parameters established in sec. 752.31(2), Stats. 1977. The defendant’s timely notice of appeal conferring jurisdiction to the court of appeals vitiates the need to determine whether [323] sec. 343.305(2) (a), Stats. 1977, is a traffic regulation. For if the court of appeals in its exercise of jurisdiction erroneously assigns this case to a single judge rather than to a panel, this alleged error, and we need not rule whether the court of appeals erred in this case, was waived when neither the state nor the defendant interposed a timely objection. Although resolving this issue is unnecessary in the present case, it is instructive to note that sec. 752.31(2) (c), Stats., 1979-1980, was recently amended to include license suspension “cases under sec. 343.305,” thereby expressly incorporating these cases within the parameters of sec. 752.31(2) (c), authorizing a single judge appeal. See sec. 2, ch. 152, Laws of 1981 (effective March 31,1982).

The factual sequence underlying this dispute can be summarized through the testimony of the sole witness, Randy Jablonic. On the evening of April 24, 1978, Jab-lonic, a University of Wisconsin rowing coach, was driving alone in his truck. It was raining. He noticed that the driver of the automobile ahead of him was experiencing difficulty in operating his vehicle. In addition to the automobile’s erratic speed, it was moving from side to side, crossing into the opposing lane, barely missing a road sign, a median strip, and the oncoming traffic. The vehicle ultimately left the road entirely and drove into a field where it either became stuck or stalled.

Jablonic, concerned that the car might return to the road and fearful “[bjecause I realized [he] would probably kill somebody” remained at the scene blocking the car to be certain that the car did not return to the highway. A motorist stopped and Jablonic requested her to alert the police. An officer arrived at the scene shortly thereafter.

Prior to the officer’s arrival, however, the driver left the automobile in the field and approached Jablonic’s truck. Jablonic testified that the driver asked him for a [324] ride home but Jablonic replied that they should wait for assistance in removing or repairing the car, rather than leaving it in the field. At this point the driver became alarmed and “broke into a very slurred conversation— ‘you wouldn’t get your cops’ — or something it was very insecure and not very controlled conversation.” The driver then left Jablonic and headed back across the field abandoning the automobile and departing from the scene of the accident.

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State v. Welsh, 321 N.W.2d 245, 108 Wis. 2d 319, 1982 Wisc. LEXIS 2729 (Wis. 1982).

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