DocketNumber: No. 2012AP64-CR
Citation Numbers: 345 Wis. 2d 326, 2012 WI App 137
Judges: Gundrum, Neubauer, Reilly
Filed Date: 11/14/2012
Status: Precedential
Modified Date: 9/9/2022
¶ 1. Thomas Schmidt appeals from a judgment of conviction for operating a motor vehicle while intoxicated (OWI) and operating with a prohibited alcohol content (FAC), both fourth offense, pursuant to Wis. Stat. § 346.63(l)(a) and (b) (2009-10).
BACKGROUND
¶ 2. On April 15, 2010, Schmidt arrived at the Winnebago County Jail to pick up his daughter, who had been arrested for OWI. Jail regulations mandate that a drunk driving arrestee is released only to a responsible party who is absolutely sober. The staff at the jail suspected Schmidt had been drinking and asked Winnebago County Sheriffs Deputy Matthew Weisse to check on Schmidt. Schmidt admitted to Weisse that he
¶ 3. At trial, Weisse testified about Schmidt's arrest. Schmidt's attorney cross-examined Weisse about other possible causes of nystagmus, including diabetes. Weisse testified that he did not know if diabetes could cause nystagmus and that he did not know if Schmidt had any condition that could affect the outcome on the HGN test. The State asked the trial court for permission to have Weisse perform the HGN test on Schmidt; Schmidt objected. The trial court sustained Schmidt's objection, but ruled that if Schmidt decided to testify and the State established a foundation that Schmidt was sober at the time of trial, then the trial court would permit the HGN test outside the presence of the jury and allow the State to recall Weisse to testify as to the results.
¶ 4. Schmidt chose to testify. He testified that he did not drink any alcohol the day of the trial or the night before. Regarding the testing, Schmidt's attorney told the court, "[I]f we're going to do the HGN, [we] want them to do the [walk and turn.]." The trial court ordered Weisse to administer the tests outside the presence of the jury. Weisse administered the tests to Schmidt and then testified that he had observed zero out of six indicia of impairment on the HGN test and that Schmidt was "pretty unsteady" on the walk-and-turn test. The jury convicted Schmidt of both OWI and operating with a RAC.
¶ 5. Schmidt makes two arguments on appeal. First, Schmidt argues that the trial court erred in allowing the HGN test at the time of trial and contends that such error violated his Fifth Amendment right against self-incrimination. Second, Schmidt argues that he was denied his right to a fair trial when the trial court allowed the test at the time of trial.
Fifth Amendment Right Against Self-Incrimination
¶ 6. The Fifth Amendment of the United States Constitution and article 1, section 8 of the Wisconsin Constitution protect a suspect from being compelled by the state to provide self-incriminating testimony. State v. LaPlante, 186 Wis. 2d 427, 436-37, 521 N.W.2d 448 (Ct. App. 1994). Where the historical facts are undisputed, we review the constitutional significance of those facts de novo. State v. Stevens, 123 Wis. 2d 303, 313-14, 367 N.W.2d 788 (1985).
¶ 7. The constitutional prohibition against compelled self-incrimination applies only to testimonial or communicative evidence, not to physical tests. State v. Babbitt, 188 Wis. 2d 349, 360-61, 525 N.W.2d 102 (Ct. App. 1994). The privilege does not bar compulsion to submit to physical testing such as fingerprinting, pho
[T]he prohibition of compelling a man [or woman] in a criminal court to be witness against himself [or herself] is a prohibition of the use of physical or moral compulsion to extort communications from him [or her], not an exclusion of his [or her] body as evidence when it may be material. The objection in principle would forbid a jury to look at a prisoner and compare his [or her] features with a photograph in proof.
Holt v. United States, 218 U.S. 245, 252-53 (1910) (Holmes, J.).
¶ 8. Wisconsin follows this long-standing rule. In Babbitt, the court held that the refusal to perform a field sobriety test was admissible as evidence of probable cause to arrest for OWI and that admission was not a violation of the defendant's Fifth Amendment right against self-incrimination. Babbitt, 188 Wis. 2d at 362-63. In doing so, the court made clear that the tests themselves are not testimonial.
Field sobriety tests are not testimonial in nature because the suspect does not intend to convey a statement as to his or her state of sobriety by performing the test. Furthermore, field sobriety tests involve no requirement that the suspect make admissions or respond to police inquiries regarding prior alcohol use.
Id. at 361; see also State v. Isham, 70 Wis. 2d 718, 731, 235 N.W.2d 506 (1975) (voice identification did not violate privilege against self-incrimination because
¶ 9. Schmidt's time-of-trial HGN test is classic physical evidence. By performing the test, Schmidt was not compelled to disclose his perceptions or thoughts or convey any statement. The test was not testimonial.
Fair Trial
¶ 10. Schmidt argues that he was denied the right to a fair trial when the court "required" him to participate in the time-of-trial HGN test. We have held, above, that the time-of-trial administration of the HGN test did not violate Schmidt's Fifth Amendment right against self-incrimination. Furthermore, Schmidt's characterization of the test as "required" is misleading, at best. Schmidt put his performance of the HGN test at issue by suggesting that his diabetes could affect the results. He then chose to testify and provided the necessary foundation for admission of the test results. There was no violation of Schmidt's right to a fair trial.
By the Court. — Judgment affirmed.
All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.
Schmidt argues about the "field sobriety testing" on the day of trial. The real issue is the trial court's decision to allow the HGN test if Schmidt agreed to testify; Schmidt insisted on repeating the walk-and-turn test. At any rate, our analysis is the same for both tests.