State v. Terhune (In re Terhune)

1

In the Matter of the Refusal of Albert A. Terhune:

State of Wisconsin, Plaintiff-Respondent, v. Albert A. Terhune, Defendant-Appellant.

No. 2023AP353

Court of Appeals of Wisconsin, District IV

September 19, 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This opinion will not be published.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 SAUK COUNTY, NO 2020TR8289 PATRICIA A. BARRETT, JUDGE.

BLANCHARD, J. ^[1]

¶1 Albert Terhune appeals a judgment revoking his motor vehicle operating privileges for unlawfully refusing to submit to chemical testing under Wisconsin's implied consent law, WIS. STAT. § 343.305. Terhune refused chemical testing after a state trooper pulled him over for speeding and extended the mission of the stop to investigate possible drunk driving. The extension included having Terhune undergo field sobriety testing and requesting that he submit to a test of his breath. Terhune contends that the judgment of refusal must be reversed because there was not reasonable suspicion of drunk driving sufficient to justify the trooper extending the mission of the stop, and because the trooper lacked both probable cause to arrest Terhune and also the level of probable cause necessary to justify the breath sample request. Based on these same grounds, Terhune contends that the circuit court erred in denying his motion to suppress evidence in a hearing that was separate from the refusal hearing held under § 343.305. In the alternative, Terhune argues that § 343.305 is unconstitutional. I reject each of these arguments. Accordingly, I affirm the revocation judgment.

BACKGROUND

¶2 A Wisconsin State Patrol trooper pulled over Terhune for alleged speeding. During the stop, the trooper began investigating a suspicion that Terhune had operated his car while under the influence of alcohol (OWI), including by administering field sobriety tests. After conducting the tests, the trooper arrested Terhune.

¶3 The trooper requested that Terhune submit to a test of his breath and read Terhune an "Informing the Accused" form. See WIS. STAT. § 343.305(4); State v Reitter, 227 Wis.2d 213, 225, 595 N.W.2d 646 (1999). Terhune refused, and the trooper issued Terhune a notice of intent revoke his operating privileges.

¶4 In addition to the refusal citation at issue in this appeal the State also cited Terhune for an OWI offense (Sauk County Case No. 20TR8214). At this time, the OWI citation remains pending in the circuit court.

¶5 Terhune requested a refusal hearing.

¶6 Terhune filed a suppression motion in both the refusal case and the OWI case. Terhune argued that the trooper unlawfully extended the mission of the traffic stop in directing Terhune to exit his car and asking Terhune questions related to whether he had been drinking alcohol, because there was not reasonable suspicion to extend the mission of the traffic stop to ask whether he had been drinking. In the alternative, Terhune argued that the trooper requested that Terhune submit to a breath test without probable cause, focusing in particular on the reliability of the field sobriety tests. As relief, Terhune requested that the court suppress evidence obtained following the extension of the traffic stop or, alternatively, suppress evidence obtained as a result of the allegedly unlawful breath test request.

¶7 The circuit court held an evidentiary hearing on Terhune's suppression motion. However, at the prosecution's request, the court limited the scope of the hearing to the extension-of-the-stop issue and excluded the taking of evidence regarding the argument that the trooper lacked probable cause to request a breath test. The court appeared to base this on the ground that Terhune's suppression motion failed to state a clear basis for challenging the reliability of the trooper's administration of field sobriety tests.

¶8 The trooper testified as the sole witness. The court determined that there was reasonable suspicion to extend the mission of the stop.

¶9 Terhune also moved to dismiss the refusal case on the ground that the implied consent statute, WIS. STAT. § 343.305, is unconstitutional because it impermissibly burdens the ability of motorists to invoke their Fourth Amendment right to be free from unreasonable searches and Fifth Amendment right to remain silent. The circuit court denied the motion.

¶10 The circuit court then held a refusal hearing over the course of two days. The trooper was again the sole witness. Terhune again argued that there was not reasonable suspicion to extend the traffic stop to investigate an OWI offense and also whether there was the necessary level of probable cause to request a breath test. He also contested whether there was probable cause justifying an arrest. The circuit court found that Terhune refused to submit to chemical testing and determined that his refusal was unreasonable. Terhune appeals.

DISCUSSION

¶11 Terhune argues that the circuit court erred by denying his suppression motion, including by rejecting his argument that there was not probable cause to request a breath test without holding a separate evidentiary hearing. He further contends that the court erred in determining that his refusal was unreasonable, renewing the arguments from his suppression motion and from the refusal hearing that there was not reasonable suspicion or probable cause. He also challenges the constitutionality of WIS. STAT. § 343.305.

¶12 A defendant is entitled to an evidentiary hearing on a pretrial motion when the motion '"alleges facts which, if true, would entitle the defendant to relief.'" State v. Radder, 2018 WI.App. 36 ¶10, 382 Wis.2d 749, 915 N.W.2d 180 (quoting State v. Velez, 224 Wis.2d 1, 11, 589 N.W.2d 9 (1999)). However, no hearing is required when the record '"conclusively demonstrates that the defendant is not entitled to relief.'" Id., ¶11 (quoted source omitted). I review de novo "[w]hether a motion alleges sufficient, nonconclusory facts to require an evidentiary hearing" and whether "the record conclusively demonstrates that the defendant is not entitled to relief." See id., ¶¶10-11 & n.5.

¶13 Terhune challenges the circuit court's refusal hearing determination based on the lawfulness of his arrest, which he in turn bases exclusively on constitutional grounds. See WIS. STAT. § 343.305(9)(a)5.a.; State v. Anagnos, 2012 WI 64, ¶¶27, 41-42, 341 Wis.2d 576, 815 N.W.2d 675. This raises issues of "constitutional fact," which present mixed issues of law and fact. See Anagnos, 341 Wis.2d 576, ¶21. I "review the circuit court's findings of historical fact under the clearly erroneous standard" and apply those historical facts to the constitutional principles independently. See id., see also State v. Wilson, 2022 WI 77, ¶18, 404 Wis.2d 623, 982 N.W.2d 67 ("A finding of fact is clearly erroneous if it is against the great weight and clear preponderance of the evidence.").

¶14 I review de novo the circuit court's resolution of Terhune's challenge to the constitutionality of WIS. STAT. § 343.305. See State v. Prado, 2021 WI 64, ¶17, 397 Wis.2d 719, 960 N.W.2d 869. Terhune bears the burden to demonstrate that the statute is unconstitutional "beyond a reasonable doubt." See id.

I. Suppression Motion

¶15 Terhune contends that the circuit court erred in rejecting his argument that there was an insufficient basis to extend the stop, following an evidentiary hearing on that topic, and that the court further erred in rejecting his argument that there was not probable cause to request a breath test without allowing him to present evidence on that topic at the suppression hearing. I address the merits of Terhune's extension-of-the-stop argument further below, concluding that the trooper had reasonable suspicion to extend the mission of the traffic stop. As to the court's decision not to hold a hearing on the breath test portion of Terhune's motion, I conclude that he 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. See Radder, 382 Wis.2d 749, ¶12.

¶16 As noted, the exclusive form of relief requested in Terhune's motion was the suppression of evidence. In this context, "discussion of 'suppression' and the exclusionary rule is somewhat beside the point" when determining whether, under Wis. STAT. § 343.305, the person was "lawfully placed under arrest." Anagnos, 341 Wis.2d 576, ¶25 n.7. Thus, whether Terhune's motion alleged facts entitling him to suppression of evidence has no bearing on the relief actually available to the cited person in a refusal proceeding, namely, that the circuit court must "order that no action be taken on the operating privilege" based on the refusal if one of the issues raised at the proceeding is "determined favorably to the person." See § 343.305(9)(d); Anagnos, 341 Wis.2d 576, ¶25 & n.7.^[2]

¶17 Here, Terhune was ultimately afforded the opportunity to challenge the revocation of his operating privileges based on evidence that he argued showed that the arrest and the request for the breath test violated the Fourth Amendment. It is true that the circuit court applies different standards to this evidence at a suppression hearing as opposed to a refusal hearing. See State v. Wille, 185 Wis.2d 673, 681, 518 N.W.2d 325 (Ct. App. 1994) ("The State's burden of persuasion at a refusal hearing is substantially less than at a suppression hearing."). However, Terhune does not develop a legally supported argument explaining how the court's partial consideration of these same 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 the refusal proceeding....