PUBLISHED
OPINION
Case No.: 96-1603-CR
Petition for Review Filed.
Complete Title
of Case:
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
GERALD KASIAN,
Defendant-Appellant.
Submitted on Briefs: October 11, 1996
COURT COURT OF APPEALS OF WISCONSIN
Opinion Released: December 27, 1996
Opinion Filed: December 27, 1996
Source of APPEAL Appeal from a judgment
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: WAUKESHA
(If "Special", JUDGE: JOSEPH E. WIMMER
so indicate)
JUDGES: Anderson, P.J., Nettesheim and Snyder, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYS On behalf of the defendant-appellant, the cause was
submitted on the brief of Joel H. Rosenthal of Luck
& Rosenthal, S.C. of Brookfield.
Respondent
ATTORNEYS On behalf of the plaintiff-respondent, the cause
was submitted on the brief of Paul E. Bucher,
district attorney, and Ted S. Szczupakiewicz,
assistant district attorney, of Waukesha.
COURT OF APPEALS
DECISION
DATED AND
RELEASED
December 27, 1996
NOTICE
A party may file with the Supreme Court a
petition to review an adverse decision by the
Court of Appeals. See § 808.10 and Rule
809.62, Stats.
This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
No. 96-1603-CR
STATE OF WISCONSIN IN COURT OF APPEALS
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
GERALD KASIAN,
Defendant-Appellant.
APPEAL from a judgment of the circuit court for Waukesha County:
JOSEPH E. WIMMER, Judge. Affirmed.
Before Anderson, P.J., Nettesheim and Snyder, JJ.
NETTESHEIM, J. Gerald Kasian appeals from a judgment of
conviction for operating a motor vehicle while intoxicated (OWI) pursuant to
§ 346.63(1)(a), Stats. The principal issue on appeal is whether the circuit court
was
obligated on grounds of issue preclusion to follow a prior administrative determination
by the Department of Transportation (DOT) that probable cause did not support
Kasian's arrest. We uphold the circuit court's ruling that it was not precluded from
litigating the probable cause issue on the merits. We also uphold the court's further
ruling that probable cause supported Kasian's arrest. We therefore affirm the judgment
of conviction.
FACTS
The relevant facts are brief and undisputed. Kasian was arrested for OWI
on October 1, 1992. Based on a chemical test result showing a prohibited blood alcohol
concentration (BAC), Kasian was notified that his operating privileges were
administratively suspended pursuant to § 343.305(7), Stats. Kasian sought a
DOT
administrative review of his suspension pursuant to § 343.305(8). At the
administrative
hearing, Kasian argued that probable cause did not support his arrest.(1) The hearing
examiner agreed and Kasian's suspension was lifted.
Thereafter, the State issued a criminal complaint charging Kasian with
OWI and with operating a motor vehicle with a prohibited BAC. Kasian responded
with a motion to suppress, raising the same probable cause challenge which he had
already successfully litigated in the DOT administrative review proceeding. However,
Kasian's argument in the circuit court went a step further. He not only challenged
probable cause, but he argued on a threshold basis that the question had already been
conclusively decided against the State in the administrative proceeding. Thus, he
contended that the State was precluded from arguing against his motion.(2)
The circuit court rejected Kasian's argument. The court went on to hold
that probable cause existed to support Kasian's arrest. The court denied Kasian's
motion to suppress. Kasian then pled guilty to the OWI charge.(3) He appeals from the
ensuing judgment of conviction and challenges the court's denial of his motion.
ANALYSIS
The application of issue preclusion doctrines to a given set of facts
presents a question of law which this court reviews without deference to the trial court's
ruling. See Lindas v. Cady, 183
Wis.2d 547, 552, 515 N.W.2d 458, 460 (1994).
Issue preclusion is designed to limit the relitigation of issues that have
been actually litigated in a previous action. See
id. at 558, 515 N.W.2d at 463. The
Wisconsin courts have moved away from a formalistic approach to issue preclusion in
favor of a more equity-based approach. See Michelle T.
v. Crozier, 173 Wis.2d 681,
687-88, 495 N.W.2d 327, 330 (1993).
Our supreme court has set out five factors which may bear upon the
question of whether issue preclusion applies. These are: (1) could the party against
whom preclusion is sought, as a matter of law, have obtained review of the judgment;
(2) is the question one of law that involves two distinct claims or intervening contextual
shifts in the law; (3) do significant differences in the quality or extensiveness of
proceedings between the two courts warrant relitigation of the issues; (4) have the
burdens of persuasion shifted such that the parties seeking preclusion had a lower
burden of persuasion in the first trial than in the second; and (5) are matters of public
policy and individual circumstances involved that would render the application of
collateral estoppel to be fundamentally unfair, including inadequate opportunity or
incentive to obtain a full and fair adjudication in the initial action? See
id. at 689, 495
N.W.2d at 330.
In Lindas, the Wisconsin Supreme Court
considered whether the circuit
court was bound by issue preclusion based upon a prior administrative determination.
There, the Wisconsin Personnel Commission had determined that no probable cause
existed to support an employee's claim of sexual discrimination. The employee did not
seek judicial review of that ruling. See
Lindas, 183 Wis.2d at 550, 515 N.W.2d at
460. Instead, she commenced an original 42 U.S.C. § 1983 action in the circuit
court
against the employer and certain individual defendants. See
Lindas,183 Wis.2d at 550-51, 515 N.W.2d at 460.
The defendants invoked issue preclusion as a threshold
defense. See id. at 551, 515
N.W.2d at 460.
In assessing whether issue preclusion applied, the
Lindas court looked
to the five factors set out in Crozier.
Lindas, 183 Wis.2d at 561-63, 515 N.W.2d at
464-65. However, because the case involved a prior proceeding before an
administrative agency, the Lindas court also
considered two additional factors: (1)
whether the agency was adjudicating a disputed issue of fact properly before it; and (2)
whether the agency's proceedings provided the parties an adequate opportunity to
litigate. Id. at 554, 515 N.W.2d at 461. These
additional factors came from the United
States Supreme Court's decision in University of Tennessee v.
Elliott, 478 U.S. 788
(1986), which the Lindas court quoted with approval:
[W]e hold that when a state agency, "acting in a judicial
capacity resolves disputed issues of fact properly before
it which the parties have had an adequate opportunity to
litigate," federal courts must give the agency's factfinding
the same preclusive effect to which it would be entitled in
the State's courts.
Elliott, 478 U.S. at 799 (quoted source
omitted).
Based upon the relevant Crozier factors, plus
the two additional factors
recited in Elliott, the
Lindas court concluded that the employee's 42 U.S.C.
§ 1983
action in the circuit court was precluded by the prior proceedings before the
administrative agency. See Lindas,
183 Wis.2d at 569, 515 N.W.2d at 467.
In this case, after considering the Crozier and
Lindas factors, we reach
the opposite conclusion. We conclude that a probable cause determination in a DOT
administrative review proceeding does not preclude consideration of the same issue at
the circuit court level in a criminal proceeding.
One of the Crozier factors inquires whether the
party against whom
preclusion is sought (here, the State) could have obtained review of the hearing
examiner's ruling. See Crozier, 173
Wis.2d at 689, 495 N.W.2d at 330. After
examining § 343.305(8), Stats., we conclude that the answer is "no." Section
343.305(8)(c)1 provides that: "An individual aggrieved by the determination
of the
hearing examiner may have the determination reviewed by the court hearing the action
relating to the applicable violation ." (Emphasis added.) The statute goes on to
provide, inter alia, that when the individual requests such review, the court shall
forward the request on to the department and that the prosecutor of the underlying
offense shall represent the department at the circuit court hearing. See
id. However,
the statute says nothing about the department's right to obtain judicial review of the
hearing examiner's ruling. Thus, this factor weighs against issue preclusion.
Another Crozier factor requires that we
examine the differences in the
quality or extensiveness of the proceedings. See
Crozier, 173 Wis.2d at 689, 495
N.W.2d at 330. This also invokes a Lindas factor:
whether the agency's proceedings
provided the parties an adequate opportunity to litigate. See
Lindas, 183 Wis.2d at
554, 515 N.W.2d at 461. The administrative review proceeding set out in
§ 343.305(8), Stats., is highly informal. In fact, subsec. (8)(b)3 directs that
"[t]he
hearing examiner shall conduct the administrative hearing in an informal manner."
While the arresting officer must submit a copy of his or her report, the officer need not
appear unless subpoenaed. See § 343.305(8)(b)1.
Unlike conventional administrative proceedings under ch. 227, Stats.,
the administrative review procedure of § 343.305(8), Stats., does not create or
invite
an "adversary proceeding" in the traditional sense of that phrase. In fact, subsec.
(8)(b)1 provides that "[t]he review procedure is not subject to ch. 227." In addition,
while the statute allows for the individual to be represented by counsel, it makes no
provision for any entity to serve as the prosecutor. This is in sharp contrast to the later
judicial review provision which expressly authorizes the prosecutor of the underlying
offense to represent the department in the circuit court review proceedings brought by
the individual. See § 343.305(8)(c)1.
In an analogous setting, the court of appeals has held that the limited
exploration of a probable cause challenge in a circuit court refusal hearing under
§ 343.305(9), Stats., did not allow for the application of issue preclusion when
the
same question was reasserted via a motion to suppress in the ensuing criminal
prosecution. See State v. Wille, 185
Wis.2d 673, 681-82, 518 N.W.2d 325, 328-29
(Ct. App. 1994). In support, the court of appeals quoted with approval much of the
following language of our supreme court in State v.
Nordness, 128 Wis.2d 15, 381
N.W.2d 300 (1986):
We deem the evidentiary scope of a revocation hearing
to be narrow. In terms of the probable cause issue, the
trial court in a revocation hearing is statutorily required
merely to determine that probable cause existed for the
officer's belief of driving while intoxicated.
We view the revocation hearing as a determination
merely of an officer's probable cause, not as a forum to
weigh the state's and the defendant's evidence. Because
the implied consent statute limits the revocation hearing to
a determination of probable cause--as opposed to a
determination of probable cause to a reasonable
certainty--we do not allow the trial court to weigh the
evidence between the parties. The trial court, in terms of
the probable cause inquiry, simply must ascertain the
plausibility of a police officer's account.
Id. at 35-36, 381 N.W.2d at 308 (emphasis
added).(4)
If a probable cause determination made by a circuit court at a refusal
hearing does not preclude the issue in the later criminal prosecution, we conclude that
it must also be so as to a probable cause determination made at a DOT administrative
review proceeding. This is especially so since a refusal hearing is more formal and
adversarial than the DOT proceeding.
We do not criticize the informality of the DOT procedures. We simply
observe that the legislature has chosen in its wisdom to accord the suspended individual
a speedy, inexpensive and informal administrative review process. But these same
attributes demonstrate that the DOT proceeding is not of the quality or extensiveness
which the law requires in order for issue preclusion to apply. See
Crozier, 173 Wis.2d
at 689, 495 N.W.2d at 330. Consequently, we do not harbor the requisite confidence
in the DOT decision because we cannot say that the issue has been fully litigated.
We also conclude that the public policy factor set out in
Crozier also
argues against issue preclusion. See
id. The State should not lose potentially important
and relevant evidence on the basis of the cursory administrative proceeding envisioned
by § 343.305(8), Stats. Nor should a circuit court's decision-making ability be
so
substantially curtailed on the basis of the administrative decision produced by such a
summary proceeding. This is especially so where the circuit court has both the ability
and the obligation to fully litigate the issue in a full adversarial proceeding.
In addition, we note that both the statutes and the state constitution give
the circuit courts, not the DOT, exclusive jurisdiction over criminal proceedings. Wis.
Const. art. VII, § 8; § 753.03, Stats. Kasian claims that he is not
seeking to bar the
State from prosecuting him, but only from relitigating the issue of probable cause.
However, under the fruit of the poisonous tree doctrine, see
Wong Sun v. United
States, 371 U.S. 471, 487-88 (1963), the loss of evidence resulting from
an illegal
arrest will oftentimes mean that the State has no case. Kasian would have the DOT
examiner's decision trump the ability of the State to prosecute a suspected crime. We
conclude that such a result is contrary to public policy.
Alternatively, Kasian challenges the trial court's determination that
probable cause supported his arrest. Whether probable cause to arrest exists based on
the facts of a given case is a question of law which we review independently of the trial
court. See State v. Truax, 151
Wis.2d 354, 360, 444 N.W.2d 432, 435 (Ct. App.
1989). In determining whether probable cause exists, we must look to the totality of the
circumstances to determine whether the "arresting officer's knowledge at the time of the
arrest would lead a reasonable police officer to believe that the defendant was
operating a motor vehicle while under the influence of an intoxicant."
State v. Babbitt,
188 Wis.2d 349, 356, 525 N.W.2d 102, 104 (Ct. App. 1994) (quoted source omitted).
Furthermore, this court is not bound by the officer's subjective assessment or
motivation. See State v. Anderson,
149 Wis.2d 663, 675, 439 N.W.2d 840, 845 (Ct.
App. 1989), rev'd on other grounds, 155 Wis.2d 77, 454 N.W.2d 763
(1990); see also
Terry v. Ohio, 392 U.S. 1, 21-22 (1968).
In this case, the arresting officer came upon the scene of a one-vehicle
accident. The officer observed a damaged van next to a telephone pole. The engine
of the van was running and smoking. An injured man, whom the officer recognized as
Kasian, was lying next to the van. The officer observed a strong order of intoxicants
about Kasian. Later, at the hospital, the officer observed that Kasian's speech was
slurred. We hold that this evidence constituted probable cause to believe that Kasian
had operated the vehicle while intoxicated.
Citing State v. Swanson, 164 Wis.2d 437, 475
N.W.2d 148 (1991),
Kasian contends that, absent the administration of field sobriety tests confirming a
suspicion of intoxication, the officer did not have probable cause to arrest. We
acknowledge that Swanson contains certain language
which supports this argument.
See id. at 453-54 n.6, 475 N.W.2d at
155. However, this language has since been
qualified. It "does not mean that under all circumstances the officer must first perform
a field sobriety test, before deciding whether to arrest for operating a motor vehicle
while under the influence of an intoxicant." Wille,
185 Wis.2d at 684, 518 N.W.2d at
329. Thus, the question of probable cause is properly assessed on a case-by-case basis.
In some cases, the field sobriety tests may be necessary to establish probable cause; in
other cases, they may not. This case, we conclude, falls into the latter category.
CONCLUSION
We uphold the trial court's holding that the probable cause issue was not
precluded by the DOT administrative review proceeding. We also uphold the court's
holding that probable cause supported Kasian's arrest.
By the Court.--Judgment affirmed.
1. Pursuant to § 343.305(8)(b)2.e,
Stats., probable cause to arrest is one of the issues which
may be addressed at the administrative hearing.
2. Kasian argued his motion in terms of collateral
estoppel. He phrases his appellate argument
in similar terms. However, collateral estoppel is now addressed in terms of "issue
preclusion."
See Northern States Power Co. v.
Bugher, 189 Wis.2d 541, 550, 525 N.W.2d 723, 727 (1995).
3. The prohibited BAC charge was dismissed.
4. We appreciate that in State v.
Wille, 185 Wis.2d 673, 518 N.W.2d 325 (Ct. App. 1994),
the roles were reversed from those here. In Wille,
the State sought to use issue preclusion against
the defendant since it had prevailed on the probable cause question at the refusal hearing.
See id.
at 680, 518 N.W.2d at 328. We also appreciate that the
Wille decision rests, in part, on the fact
that the State's burden of proof on the probable cause question was greater in the criminal
proceeding than in the refusal proceeding. See
id. at 682, 518 N.W.2d at 329. Nonetheless, we
conclude that the Wille decision rests principally on
the differences in the quality and extensiveness
of the two proceedings. That, of course, is one of the
Crozier factors. See
Michelle T. v.
Crozier, 173 Wis.2d 681, 689, 495 N.W.2d 327, 330 (1993).
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