Issue preclusion applied to refusals

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A motorist’s success in a refusal hearing precludes the State from using evidence gathered after his arrest in a subsequent drunk driving prosecution, the Wisconsin Court of Appeals held on Sept. 9.

Kirk Griese was stopped in Horicon for driving with a burned out tail light. After making contact with Griese, the officers suspected that he might be driving while intoxicated. Rather than have him perform field sobriety tests at the scene of the traffic stop “due to the weather being so cold,” they transported him to the police station to administer the tests.

After observing Griese’s performance on the sobriety tests, the police arrested Griese for OMVWI and took him to a local hospital for an evidentiary blood test, which he refused. The police subsequently had a blood sample drawn from Griese despite his refusal.

Because he had refused to submit to a blood test, the police issued Griese a Notice of Intent to Revoke Operating Privileges. Griese filed a timely demand for a refusal hearing pursuant to sec. 343.305(9). Griese claimed at the refusal hearing that police had arrested him without probable cause when they transported him from the location of the original traffic stop to the police station for field sobriety tests.

No testimony was taken, as the parties stipulated to the facts as set forth in the complaint and attached police reports. They also agreed that the police station was one mile from the location of the stop and that Griese performed the sobriety tests inside the police station.

The trial court concluded that the police arrested Griese when they put him in the squad car and transported him to the police station and that they lacked probable cause to arrest him at that point in time. Accordingly, the court held that no action could be taken on his operating privileges as a result of his refusal to submit to the blood test.

Griese was also charged with OMVWI, and, in that case, moved to exclude all the evidence the police had obtained after his arrest, asserting the doctrine of issue preclusion. Dodge County Circuit Court Judge Daniel W. Klossner denied the motion, and Griese pleaded no contest to OMVWI, as a fourth offense.

Griese appealed, and the court of appeals reversed, in a one-judge opinion by Judge David G. Deininger.

The State argued that issue preclusion did not apply to refusal hearings, relying on State v. Wille, 185 Wis. 2d 673, 518 N.W.2d 325 (Ct. App. 1994). In Wille, the court held that a defendant was not barred by issue preclusion from re-litigating the issue of probable cause for arrest at a suppression hearing incident to a criminal prosecution despite an earlier determination on the issue in favor of the State in a refusal proceeding. Id. at 682.

Distinguishing Wille, the court noted, “At a refusal hearing, the State needs only to show that the arresting officer’s account concerning probable cause is ‘plausible,’ such that a court does not engage in determining credibility or weighing competing evidence. At a suppression hearing, however, a court must assess the credibility of a police officer’s account, and those of other witnesses, and it must often choose between conflicting versions of the facts in order to determine whether probable cause for the arrest existed (cites omitted).”

In Wille, the court found issue preclusion inappropriate when the State prevails in a refusal hearing because, “the fact that the State previously met the low threshold of proof necessary to sustain an arrest for purposes of a refusal proceeding does not mean that it must also necessarily prevail in the suppression context, where its burden is ‘significantly greater.’”

When the defendant prevails at the refusal hearing, however, the court held that issue preclusion is appropriate, observing, “we have a reversal of roles and outcome, in that it is Griese and not the State who wishes to avoid re-litigation of the arrest issue, and, unlike in Wille, the State lost on that issue in the refusal proceeding. We conclude that the Wille analysis applied to the present facts does not trigger the exception to issue preclusion we relied on in Wille, thus leaving the general rule of preclusion to govern.”

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The court concluded, “None of the three exception scenarios set forth in Restatement (Second) of Judgments 28(4) appl
y here. The State is now the ‘party against whom preclusion is sought,’ and it had a lighter, not heavier, burden of persuasion on the arrest issue in the refusal proceeding than it would have at a suppression hearing. … In short, a ‘plausible’ account that the arresting officer had probable cause to arrest a person for OMVWI is a sufficient showing for the State to prevail at a refusal hearing, and the State failed to meet even that modest burden. Nothing in the Restatement (Second) of Judgments 28(4) (1982) or our decision in Wille requires that the State, having failed to make a threshold showing of the lawfulness of Griese’s arrest, must now be given a second chance to meet its (now higher) burden of proof necessary to sustain the lawfulness of the arrest for purposes of a Fourth Amendment challenge in the criminal proceeding.”

The court found the other requirements for issue preclusion were also met: the issue was “actually litigated”; “a valid and final judgment” was rendered; and, because probable cause was the only issue in the refusal hearing, the issue was “essential to the judgment” in the refusal proceeding.

In addition, the State had the opportunity to appeal its loss at the refusal hearing, but did not do so. Accordingly, the court held that issue preclusion applies, and reversed, instructing that, on remand, the trial court shall prohibit the State from introducing at trial any evidence obtained by the police after they placed Griese in the squad car for transport to the police station.

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David Ziemer can be reached by email.