State v. VanderGalien

410 Wis. 2d 517

State of Wisconsin, Plaintiff-Respondent,

v.Dustin J. VanderGalien, Defendant-Appellant.

Court of Appeals

No. 2023AP458–CR. Submitted on briefs October 19, 2023.—Decided December 29, 2023.

2024 WI App 4

(Also reported in 2 N.W.3d 774.)

APPEAL from a judgment and an order of the circuit court for Dodge County: MARTIN J. DeVRIES, Judge. Affirmed.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Mark D. Richards and Natalie L. Wisco of Richards & Associates, S.C., Racine.

On. behalf of the plaintiff-respondent, the cause was submitted on the brief of Lisa E.F. Kumfer, assistant attorney general, and Joshua L. Kaul, attorney general.

Before Kloppenburg, P.J., Nashold, and Taylor, J J.

¶ 1. KLOPPENBURG, P. J. Dustin VanderGalien pleaded no contest to three counts: (1) homicide by operation of a motor vehicle while having a detectable amount of a restricted controlled substance in his blood as a second or subsequent offense; (2) causing great bodily harm by operation of a motor vehicle while having a detectable amount of a restricted controlled substance in his blood; and (3) causing injury by operation of a motor vehicle while having a detectable amount of a restricted controlled substance in his blood as a second or subsequent offense. The restricted controlled substance at issue in all three counts is a metabolite of cocaine. The circuit court imposed a sentence totaling 21 years and six months of initial confinement and 18 years of extended supervision.

¶ 2. On appeal, VanderGalien challenges the constitutionality of Wis. Stat. § 340.01(50m)(c) (2021–22), insofar as it includes "[c]ocaine or any of its metabolites" in the definition of a restricted controlled substance for purposes of prosecution under the Wisconsin motor vehicle code (Wis. Stat. § 23.33 and chs. 340–349 and 351), on the ground that this statutory provision lacks a rational basis.¹ Specifically, VanderGalien argues that there is no rational basis for including inactive, non-impairing metabolites of cocaine in the definition of a restricted controlled substance. VanderGalien also appeals the circuit court’s order denying without a hearing his motion for postconviction relief, which asserted that: (1) his due process rights were violated because of a prosecutorial conflict of interest; and (2) he is entitled to withdraw his pleas because (a) trial counsel rendered constitutionally ineffective assistance by not explaining the effect of dismissed and read-in charges and (b) as a result of counsel’s failure, VanderGalien did not understand their effect and so did not knowingly, intelligently, and voluntarily enter his pleas.

¶ 3. We conclude that the inclusion of metabolites of cocaine in the definition in Wis. Stat. § 340.01(50m)(c) of a "restricted controlled substance" for purposes of prosecution under the Wisconsin motor vehicle code is constitutional. We further conclude that VanderGalien is not entitled to an evidentiary hearing on the claims raised in his motion for postconviction relief. Accordingly, we affirm.

BACKGROUND

¶ 4. The criminal complaint alleged as follows. At approximately 6:30 p.m. on July 30, 2019, VanderGalien was driving east in the westbound lane of County Road B in the Town of Burnett in Dodge County and struck head-on two motor vehicles driving west in the westbound lane of the road. The three occupants in the first motor vehicle that VanderGalien struck suffered minor injuries. Three of the four occupants in the second motor vehicle that VanderGalien struck suffered serious injuries and the fourth occupant died. After first responders removed VanderGalien from his motor vehicle, he was placed under arrest. Because of his severe injuries, he was then transported by helicopter to a hospital. VanderGalien’s blood was drawn pursuant to a search warrant nearly four hours after the collisions. The results of the testing of VanderGalien’s blood showed 240 ng/mL of the cocaine metabolite benzoylecgonine ("BE").

¶ 5. In the criminal complaint, the State charged VanderGalien with numerous offenses related to the July 2019 collisions. VanderGalien filed a motion to dismiss seven of the counts, all of which alleged that VanderGalien was operating a motor vehicle with a detectable amount of a restricted controlled substance in his blood. VanderGalien argued that Wis. Stat. § 340.01(50m)(c), the statute defining a restricted controlled substance as "[c]ocaine or any of its metabolites," which includes BE, for purposes of prosecution under the Wisconsin motor vehicle code, is unconstitutional because all of the metabolites of cocaine are "inactive" and have no "impairing effect." Accordingly, VanderGalien argued, there is no rational relationship between prohibiting having a detectable amount of an inactive and non-impairing metabolite of cocaine, such as BE, in the blood while operating a motor vehicle and any legitimate public interest in roadway safety.²

¶ 6. The circuit court denied the motion, based on VanderGalien’s expert’s testimony that cocaine metabolizes in the bloodstream very quickly and that BE remains in the bloodstream for much longer. Thus, according to the expert, in the case of a driver with cocaine in the driver’s system at the time of a collision, cocaine may be "out of the [bloodstream] by the time the [driver’s] blood is drawn" but BE will be detectable at the time of the blood draw. The court reasoned that the "legislature has taken a zero tolerance approach" that "eliminates complex methods of proving guilt." The court concluded that that statutory approach, reflected here by prohibiting having a detectable amount of BE in the blood while operating a motor vehicle, has a rational basis.

¶ 7. The State filed an amended information charging VanderGalien with more serious offenses following the completion of a report by the Wisconsin State Patrol Technical Reconstruction Unit. According to the report, the driver of the motor vehicle that VanderGalien passed before continuing east in the westbound lane told officers that she saw VanderGalien driving erratically after he passed her. VanderGalien stayed in the westbound lane of the road and was travelling east at 76–77 miles per hour in a 55–mile-per-hour zone between. 1 and 5 seconds before he collided with the left front of the first motor vehicle, which had steered right towards the shoulder to avoid a direct head-on collision. VanderGalien continued east for 38 feet and struck the second motor vehicle directly head-on.

¶ 8. In June 2021, the parties reached a plea agreement. On June 29, 2021, as part of the plea agreement, the State filed an amended information charging thirteen counts.³ VanderGalien pleaded no contest to the following counts in the June 29 amended information: one count of homicide by operation of a motor vehicle with a detectable amount of a restricted controlled substance in the blood as a second or subsequent offense; one count of causing great bodily harm by operation of a motor vehicle while having a detectable amount of a restricted controlled substance in the blood; and one count of causing injury by operation of a motor vehicle with a detectable amount of a restricted controlled substance in the blood as a second or subsequent offense. The remaining counts were dismissed and read in. The circuit court imposed consecutive sentences totaling 21 years and 6 months of initial confinement and 18 years of extended supervision.

¶ 9. VanderGalien filed a motion for postconviction relief arguing that: (1) the circuit court erroneously denied his pretrial motion to dismiss all counts involving the operation of a motor vehicle with a detectable amount of a restricted controlled substance in the blood on the ground that the inclusion of inactive, non-impairing metabolites of cocaine in the definition of a restricted controlled substance in Wis. Stat. § 340.01(50m)(c) is unconstitutional because it lacks a rational basis; (2) "all proceedings" should be invalidated because he was denied his constitutional due process rights when the Dodge County District Attorney’s office failed to disclose a disqualifying conflict of interest and did not appoint a special prosecutor; (3) he is entitled to withdraw his no contest pleas because his trial counsel was constitutionally ineffective by failing to properly explain the effect of dismissed and read-in charges; and (4) as a result of trial counsel’s failure, VanderGalien did not understand their effect and is, therefore, entitled to withdraw his no contest pleas because they were not knowingly, intelligently, and voluntarily entered. The circuit court denied VanderGalien’s motion without holding an evidentiary hearing.

¶ 10. VanderGalien appeals.

DISCUSSION

¶ 11. VanderGalien reasserts on appeal the four issues raised in his motion for postconviction relief. We address each issue in turn.

I. Constitutionality of prohibiting having a detectable amount of a metabolite of cocaine in the blood while driving

¶ 12. This issue concerns the statutes in the Wisconsin motor vehicle code that describe offenses involving the operation of a motor vehicle with a detectable amount in a person’s blood of a restricted controlled substance as defined in Wis. Stat. § 340.01(50m).⁴ That statute defines "restricted controlled substance" for purposes of prosecution under the Wisconsin motor vehicle code to include "[c]ocaine or any of its metabolites." Sec. 340.01(50m)(c). VanderGalien argues that the inclusion of inactive, non-impairing metabolites of cocaine in the definition of a restricted controlled substance in § 340.01(50m)(c) for purposes of prosecution under the Wisconsin motor vehicle code is unconstitutional because it lacks a rational basis.

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¶ 13. As a preliminary matter, we first address the parties’ disagreement as to whether VanderGalien sufficiently raised and preserved this issue for appeal. "As a general rule, issues not raised in the circuit court will not be...