02-1702 State v. Pfaff

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This is a review of a refusal hearing arising out of an operating a motor vehicle while intoxicated arrest. The OWI arrest came on the heels of an accident where a driver in another car was killed. The defendant in this case, Gregg A. Pfaff, was also arrested for a felony-homicide by intoxicated use of a motor vehicle. Pfaff had a preliminary hearing on the felony and was bound over by a court commissioner. At the refusal hearing, the trial court sua sponte, and over objection, incorporated the transcript from the preliminary hearing as part of the refusal hearing record and indicated that it would use the transcript in helping the court to decide whether there was probable cause to arrest for OWI, one of the elements in a refusal hearing. But the court also instructed Pfaff that the officers were present in the courtroom and could be cross-examined. On appeal, Pfaff argues that the procedure used by the trial court robbed him of the right to have a tribunal that observes the demeanor of the witnesses in assessing credibility during the State’s direct evidence. We agree with the premise. Moreover, the court’s decision relieved the State of having to put on witnesses and meet its burden of proof.

We reverse and remand with directions to reconduct the probable cause portion of the refusal hearing.

However, we further find that the trial court’s finding of unreasonable refusal is not clearly erroneous and we affirm on that issue.

This opinion will not be published.

Dist II, Waukesha County, Haughney, J., Brown, J.

Attorneys:

For Appellant: Rex Anderegg, Milwaukee

For Respondent: Paul E. Bucher, Waukesha; Robert J. Flancher, Waukesha