State v. Albert A. Terhune, 2023AP353, 9/19/24, District IV (1-judge decision, ineligible for publication); case activity
In a somewhat complicated OWI appeal, COA ultimately affirms under well-settled legal standards.
Terhune appeals the circuit court’s order revoking his operating privileges for unlawfully refusing to submit to an evidentiary breath test pursuant to § 343.305. (¶1). While the case is somewhat more complex than usual because Terhune seemingly incorporated, into that procedure, a motion to suppress evidence, COA ultimately finds that the circuit court correctly revoked his license:
Suppression Motion
According to the statement of facts, Terhune filed his suppression motion in both the OWI file and in this refusal case. (¶6). The suppression hearing was held first. (¶7). The court narrowed the scope of Terhune’s motion, finding that at least some of his arguments did not merit an evidentiary hearing. (Id.). It then denied the motion. (Id.). Thereafter, the court held a refusal hearing, at which time Terhune “reraised” the totality of his arguments set forth in the suppression motion. (¶30). Thus, even though the OWI matter remains pending, he also uses the appeal of this refusal hearing as a vehicle, seemingly, to challenge the outcome of that suppression hearing. (¶11).
COA begins by holding that Terhune “fails to show that his suppression motion alleged facts that, if true, entitled him to relief for the purposes of the refusal case at issue in this appeal.” (¶15). As COA observes, “suppression of evidence” is not an available remedy in a refusal hearing; instead, the only question is whether or not the person’s license should be revoked. (¶16). Here, Terhune was able to make his constitutional challenges in context of that decision. (¶17). And, while the circuit court was obligated to evaluate the constitutionality of the police conduct under a more favorable standard at a refusal hearing, Terhune does not develop an argument as to “how the court’s partial consideration of these arguments under the more favorable standards in the earlier suppression hearing created a reversible error in this appeal of the court’s refusal determination or otherwise prejudiced his ability to defend himself in this refusal proceeding.” (Id.).
Reasonableness of Traffic Stop
Pursuant to statute, the court’s inquiry at a refusal hearing is limited to certain issues, one of which is the lawfulness of the underlying arrest. (¶19). “A person can challenge the lawfulness of an arrest […] based on the unlawfulness of the traffic stop that led up to that arrest.” (¶20). Here, Terhune argues that the police unlawfully extended this stop–for going 85 in a 70 mph zone–and converted it to an OWI investigation. (Id.). COA identifies several factors reasonably supporting the officer’s decision to investigate a possible OWI, including Terhune’s erratic driving, odor of intoxicants, presence of a masking odor, poor manual dexterity, admission of being at an event where alcohol is consumed, and a slight stumble or sway when exiting the car. (¶33). Although there is an attempt to attack the officer’s credibility, these attacks fail given the standard of review, objective (versus subjective) legal standard, and the video evidence in the appellate record. (¶¶35-37).
Probable Cause to Arrest/Probable Cause to Request Breath Test
While these two standards are slightly different, COA ultimately concludes that the evidence supported the officer’s decision to arrest Terhune and request a breath test. (¶39). In addition to all of the other facts, there was also evidence reasonably suggesting that Terhune had “minimized” the amount of alcohol he drank (he initially denied drinking, then admitted it after the officer told him he could smell it on his breath). (Id.). Terhune also exhibited “clues” of impairment on the field sobriety tests. (Id.). Even though Terhune attacks the reliability of those tests, he has not proven “that the circuit court erred in giving at least some weight to the tests, despite the deviations acknowledged by the trooper at the refusal hearing.” (¶42). His arguments to the contrary are rejected as “conclusory and unsupported by references to facts in the record.” (Id.).
Constitutionality of Implied Consent Statute
Finally, Terhune argues that the refusal must be dismissed, because the implied consent statute “impermissibly penalizes a motorist ‘for exercising a constitutional privilege.'” (¶43). However, “the United States Supreme Court has explicitly reinforced the constitutionality of states statutorily imposing ‘civil penalties and evidentiary consequences’ of the kind that Terhune objects to in § 343.305.” (¶45). His case also involves breath, not blood testing, which is given less constitutional scrutiny under settled Fourth Amendment law. (¶46). COA likewise rejects his argument that there is a right to refuse rooted in the Fifth Amendment. (¶47).
