City of Mequon v. Schumacher (In re Schumacher)

1

In the matter of the refusal of John R. Schumacher:

City of Mequon, Plaintiff-Respondent, v. John R. Schumacher, Defendant-Appellant.

No. 2023AP2411

Court of Appeals of Wisconsin, District II

July 3, 2024

This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)4.

APPEAL from a judgment of the circuit court for Ozaukee County Cir Ct. No. 2021TR3234: PAUL V. MALLOY, Judge. Affirmed.

GUNDRUM, P.J. ^[1]

¶1 John R. Schumacher appeals from a judgment of the circuit court determining he unlawfully refused chemical testing of his blood when requested by the arresting City of Mequon police officer. He claims we should reverse because "the circuit court erred when it found that [the arresting officer] had probable cause to arrest [him] for operating a motor vehicle while under the influence of an intoxicant, and further, when it denied his motion to [dismiss the refusal proceedings] based upon the officer's failure to honor [Schumacher's] request that he submit to a test other than blood." We conclude the court did not err, and we affirm.

Background

¶2 After Schumacher's arrest for operating a motor vehicle while impaired (OWI), the arresting officer read to him the Informing the Accused form and asked him if he would submit to a blood draw for chemical testing. He ultimately refused the officer's request, and the officer issued him a Notice of Intent to Revoke Operating Privilege. Schumacher timely requested a refusal hearing. Professing a lack of probable cause, Schumacher filed a suppression motion challenging the OWI arrest and the evidentiary fruits that flowed from it.^[2]He also filed a motion to dismiss the refusal proceedings based on lack of probable cause and the fact that while he had refused to submit to a blood draw, he had offered to instead submit to a breath or urine test. At the hearing on his motions, the following relevant evidence was presented.

¶3 The officer testified that around 9:00 p.m. on November 15 2021, he observed a vehicle with a nonfunctioning driver's side headlight. As the vehicle passed him, the officer "noticed that ... there was pretty significant driver's side damage done to [the] vehicle," and he believed the damage had occurred recently because he "could actually hear pieces of the vehicle scraping on the pavement." Conducting a traffic stop based on the defective headlight, the officer identified Schumacher as the driver and sole occupant of the vehicle.

¶4 When the officer asked Schumacher how the damage had occurred, he indicated he had "struck ... a sign [pole] somewhere" but "didn't know exactly where." Schumacher "peek[ed] out of the vehicle and [was] surprised by the extent of the damage. He was unaware of how extensive the damage to the vehicle was." While speaking with Schumacher, the officer smelled the odor of intoxicants and observed that Schumacher had "glassy bloodshot eyes." Schumacher admitted to having consumed alcohol and coming from Maxwell's, an establishment the officer knew to be "like, a bar."

¶5 The officer had Schumacher perform field sobriety tests beginning with the horizontal gaze nystagmus (HGN) test. The officer testified there are "six clues" associated with this test that indicate impairment, and the officer observed four with Schumacher-"a lack of smooth pursuit" and "nystagmus at max[imum] deviation" in both of Schumacher's eyes. The officer did not observe "the onset of nystagmus prior to 45 [degrees]" in either eye, two other possible clues. The officer then checked Schumacher for vertical nystagmus, which would indicate "a high alcohol level," but the officer did not observe this in either of his eyes.

¶6 Schumacher then performed the walk-and-turn test. On this test officers look for eight potential clues of impairment, although two clues are indicative of impairment. While the officer was instructing Schumacher with regard to this test, he displayed his first clue in that he "was not able to keep balance and did break from [his] starting position." Schumacher then returned to the starting position, but shortly thereafter "[b]r[oke] for a second time from that starting position." Schumacher showed three additional clues of impairment on this test-missing heel-to-toe with his steps on four occasions, turning in an incorrect manner, and using his arms to maintain balance while taking the steps.

¶7 Schumacher then performed the one-legged-stand test, on which an officer looks for four possible clues of impairment, with two out of four indicating impairment. Schumacher exhibited one of the four possible clues.

¶8 The officer then administered a preliminary breath test (PBT) to Schumacher, which showed a result of .037. The officer testified that "[b]ased on [his] previous experience with OWIs," he concluded that "the number of clues [Schumacher had exhibited on his field sobriety tests] was not consistent with the result of the PBT." As a result, the officer suspected "additional medications or something [in addition to alcohol] ... was ... causing additional impairment."

¶9 Believing Schumacher to be impaired, the officer arrested him and subsequently read him the Informing the Accused form. Because the officer "believed there to be drugs that may have" been contributing to Schumacher's impairment, the officer asked Schumacher if he would submit to a blood test. Schumacher responded "that he would do breath or urine and that he wanted to do breath because he knew he hadn't drank a lot." Several times the officer reiterated that he was requesting a blood test, and Schumacher eventually agreed. The officer concurred that Schumacher made a comment "about not wanting someone with Parkinson's drawing his blood," which the officer interpreted as meaning "[t]hat he was going to be voluntary for the blood draw, but he just wanted to make sure that it was done by a qualified individual."

¶10 After the officer transported Schumacher to the hospital for a blood draw, Schumacher indicated "he no longer wanted to go forward with the blood test." The officer treated this as a refusal of the blood draw, so he applied for and received a search warrant for the draw.

¶11 On cross-examination, the officer agreed he was not a drug recognition expert; he pulled Schumacher over because of the non-functional headlight and had not observed Schumacher's vehicle speeding, swerving, or deviating lanes; and Schumacher responded timely and appropriately to the officer's emergency lights, including parking properly on the side of the road. The officer acknowledged that he did not note any concerns regarding Schumacher's ability to speak or any balance problems other than those displayed during the field sobriety tests; Schumacher consistently stated he only had "a beer to a beer-and-a-half" while at Maxwell's; and Schumacher told the officer that he struck the sign pole because "he was in the midst of a breakup with his girlfriend and had been looking at his phone at some texts he was receiving from her." The officer further testified that during the HGN test, Schumacher kept his head still, consistent with instructions, and agreed that he did not sway.

¶12 Related to the walk-and-turn test, the officer acknowledged that Schumacher did touch heel-to-toe as instructed on fourteen of the eighteen total steps he took and that he did not recall Schumacher ever stepping "off the line" on any of the eighteen steps. The officer acknowledged no evidence of drugs or drug paraphernalia was found on Schumacher's person or in his vehicle.

¶13 The officer agreed that when he read the Informing the Accused form to Schumacher and asked him to submit to a blood test at the location of the traffic stop, Schumacher indicated "something to the effect of I don't like needles, but I'll do urine or breath," and the officer responded by telling Schumacher he wanted a blood test. The officer acknowledged that in most first offense cases in the city, the primary test used is a breath test, the city has a breath testing machine at the police department, and there was nothing preventing him from administering that test to Schumacher the night of the arrest. The officer added that the decision to have Schumacher do a blood test instead of a breath test "was a decision I made." The officer admitted that Schumacher several times reiterated his willingness to do a breath or urine test instead of a blood test.

¶14 In response to questioning by the circuit court, the officer testified that the damage to Schumacher's vehicle included dislodgement of the "wheel well cowling," destruction of the driver's side headlight, and "also some significant damage on the hood with it fairly crumpled." The officer agreed that it "[wa]sn't like ... a bump in a parking lot."

¶15 The circuit court denied Schumacher's motion to dismiss the refusal proceedings, concluding the officer did have probable cause to arrest Schumacher for OWI and the officer's insistence on a blood test instead of allowing Schumacher to instead do an alternate test did not violate the constitution. Schumacher appeals.

Discussion

Probable Cause

¶16 Schumacher first asserts the circuit court erred in denying his motion because it erroneously concluded the officer had probable cause to arrest him for OWL The court did not err.

¶17 Issues that a defendant may raise at a refusal hearing are limited to (1) "whether the [defendant] was lawfully placed under arrest for [an OWI-related offense]," (2) whether the officer properly informed the defendant of his or her rights and responsibilities under the implied consent law, and (3) whether the defendant "refused to permit the test." See WIS. STAT. § 343.305(9)(a)5.a.-c. In this case, Schumacher challenges the circuit court's conclusions that the officer had...