Wisconsin Attorney General Opinions
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Opinion # OAG 2-88,
11 January 1988
Courts; Criminal Law, Implied Consent Law;
An individual's fifth amendment
privilege
against self-incrimination need
not be
compromised by his or her testimony
elicited
at the evidentiary refusal hearing
afforded
to individuals who have requested
the
opportunity to litigate the lawfulness
of
their refusal to submit to chemical
testing
under the implied consent law.
Consequently, absent any statutory
guidelines, the scheduling of a
refusal
hearing is within the discretion
and
calendaring possibilities of the
court to which it is assigned.
PHILIP J. FREEBURG,
District Attorney Langlade County
You have requested my opinion on
several
issues relating to the timeliness
of and
standards for staying the evidentiary
hearing
afforded to individuals who have
requested
the opportunity to litigate the
lawfulness of
their refusal to submit to chemical
testing
under the implied consent law.
Section 343.305, Stats.
Paraphrasing your questions, you ask:
1. When should the refusal hearing be held?
2. Can the refusal hearing be stayed
until
after the trial on
the substantive
operating while intoxicated
("OWI")
charge?
3. If the refusal hearing can be
stayed
until after the substantive
OWI trial,
is the issue of self-incrimination
a
proper ground for
such a stay?
4. In order to grant a stay, must
an
individual meet a
standard of an "actual
and/or substantial
possibility of
self-incrimination?"
5. Is it necessary and/or allowable
for a
prosecutor to replace
the privilege of
self-incrimination
with a grant of
immunity in order
to hold the
refusal hearing prior
to
the substantive OWI
trial?
Your request is apparently prompted
by a
recent determination by the circuit
court in
your county to stay a refusal hearing
until
after the trial for the substantive
OWI
charge in order to protect an individual's
fifth amendment privilege against
self-incrimination.
The argument favoring that determination
would appear to be that the holding
of a
refusal hearing prior to the trial
for the
substantive OWI charge violates
an
individual's fifth amendment constitutional
right against self-incrimination
by forcing
him/her either to waive that right
or to
forfeit his/her due process right
to
meaningful participation in the
refusal hearing.
| 77 OAG 4 5 6 7 8 9 10 11 12 13 14 15 16 17 |
In my opinion, an individual's fifth
amendment privilege against
self-incrimination need not be
compromised
by his/her testimony elicited at
a refusal
hearing.
Consequently, a circuit court would
not be
required to stay a refusal hearing
for this reason.
To resolve a situation similar to
the one
which inspired your inquiry, it
would
therefore not be necessary to answer
the remaining four questions.
However, because the remaining questions
involve matters of a recurring
nature
important to the prosecutors in
the
state, I choose to give each
consideration in this opinion.
Before addressing your particular
questions,
I find it useful to consider the
statutory
scheme within which the refusal
hearing is
but one part, as well as the nature
and
parameters of the refusal hearing
itself.
A refusal hearing is "separate and
distinct"
from an OWI prosecution.
Suspension of Operating
Privileges of Bardwell,
83 Wis.2d 891, 902,
266 N.W.2d 618, 623 (1978).
The former is a "special proceeding,"
civil in nature,
State v. Jakubowski,
61 Wis.2d 220, 223-24,
212 N.W.2d 155, 156 n.2 (1973),
while the latter may be either
a civil or a
criminal proceeding depending on
whether the
defendant has been previously convicted
of
OWI within a prescribed period
of time.
Section 346.65 (2), Stats.
Although they are not unrelated
actions, for
both arise out of the same basic
occurrence,
State v. Brooks,
113 Wis.2d 347, 354,
335 N.W.2d 354 (1983),
the two proceedings are often prosecuted
in two different forums.
This is particularly true when the
substantive OWI is a first offense
brought
by a municipality, and the corresponding
refusal proceeding, as it must,
is
prosecuted as a state proceeding
in the
circuit court by the district attorney.
Bardwell 83 Wis.2d at 903;
see Section 343.305(3)(b), Stats.
The issues to be considered at a
refusal
hearing are strictly limited to
those
specifically outlined in subsection
343.305(3)(b)5, Stats.
State v. Nordness, 128 Wis.2d 15,
29, 381
N.W.2d 300 (1986). Consequently,
the scope of
the inquiry is limited to the following:
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1. Whether the officer had probable
cause
to believe that the
person violated an
impaired driving law
and lawfully
arrested him or her
therefore;
2. Whether the officer complied
with the
statutory duty to
inform the person
about his or her obligations
and rights
under the implied
consent law;
3. Whether the person refused to
submit to
testing requested
by the officer.
"Reasonableness" of
the refusal is
not an issue at a
refusal hearing.
City of Prairie Du Chien v. Evans,
100 Wis.2d 358, 359 n.2,
302 N.W.2d 61 (Ct.App. 1981).
The narrow view of the issues to
be addressed
at the refusal hearing also circumscribes
the proof required of the prosecution
to establish a refusal.
First, the quantum of evidence necessary
to
establish the probable cause element
exists
when the totality of the circumstances
within
the arresting officer's knowledge
at the time
of the arrest would lead a reasonable
police
officer to believe that an individual
probably committed an impaired
driving
offense.
Nordness, 128 Wis.2d at 35.
In analyzing the nature of this
proof at a
refusal hearing, the Wisconsin
Supreme Court
has utilized traditional notions
of
evidentiary analysis to establish
probable cause:
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 Ä as opposed
to a
determination of probable cause
to
a reasonable certainty Ä 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.
Nordness, 128 Wis.2d at 36.
Second, the requirement that the
prosecution
must prove that the accused was
informed of
his/her obligations and rights
as those are
identified in the applied consent
law is
also typically established through
the
testimony of the officer that a
form
"informing the accused" was read
to
the driver and by the introduction
of the actual form into evidence.
Third, the prosecution must prove
that the
driver refused to submit to the
test.
Ordinarily, the refusal is expressed
verbally
by the accused, and the prosecutor's
burden
is discharged by eliciting testimony
to that
effect from the police officer.[1]
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The preliminary background necessary
to
render the opinion now stated,
I turn to
the analysis of your specific questions.
Your first two questions require
me to
address the same issue Ä the
timeliness
of the refusal hearing.
Section 343.305 fails to state when
the
refusal hearing should or must
be held.
Further, there are no other statutory
provisions or case law authorities
that
either require or restrict the
refusal
hearing to the period of time either
before or after the trial on the
substantive OWI charge.
Consequently, absent any guidelines,
the
scheduling of a refusal hearing
is within the
discretion and calendaring possibilities
of
the court to which it is assigned.
You have suggested several reasons
to require
the occurrence of the refusal hearing
prior
to the trial on the substantive
OWI charge.
hose reasons include:
(1) a requirement that the refusal
hearing
be held within
sixty (60) days from the
date of the
refusal based upon the
language of
subsection 343.305(3)(c);
(2) a decision on the "reasonableness"
of a
refusal would
be beneficial to the
factfinder at
the trial of the
substantive
OWI charge; and
(3) a delay in the revocation resulting
from
a refusal violating
section 343.305
violates the
"intent and purpose"
of the implied
consent law.
None of those reasons, however,
are persuasive.
First, I find no support in subsection
343.305(3)(c) for the proposition
that
the refusal hearing should be held
within sixty (60) days of the
refusal of the chemical test.
That subsection provides as follows:
The receipt given the operator shall
clearly state the date of the refusal
and shall serve as a driving permit
for
30 days from the date of the refusal.
If further proceedings or hearings
on
the refusal issues are necessary,
the
court shall certify the receipt
for
additional periods, not to exceed
30
days, until there is a final
determination of whether the person's
operating privilege shall be revoked
under this section.
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This subsection unambiguously provides
the
circuit courts of this state with
the
discretion to permit an unlimited
number of
extensions, as long as no individual
extension exceeds thirty days.
I do not believe that this subsection
restricts those courts to a single
thirty (30) day extension.
I have been advised that this view
of the
statute is consistent with the
longstanding
interpretation and application
of the implied
consent law by the Wisconsin Department
of
Transportation.
See
West Bend Education Association
v. WERC,
121 Wis.2d 1, 12,
357 N.W.2d 534 (1984),
citing
Nottelson v. ILHR Department,
94 Wis.2d 106, 115-18,
287 N.W.2d 763 (1980).
See also
Chevrolet Division, GMC v. Industrial
Comm.,
31 Wis.2d 481, 488,
143 N.W.2d 532 (1966).
Second, under earlier versions of
the implied
consent law, the "reasonableness"
of a
refusal was an issue to be determined
at the refusal hearing.
Section 343.305(2)(b)5 (1975), Stats.
However, as noted earlier, reasonableness
of
a refusal is no longer a statutory
defense.
Evans, 100 Wis.2d at 359 n.2.
The "reasonableness" of a refusal
is not an
issue enumerated in section 343.305(3)(b).
Therefore, no determination of
"reasonableness" would be available
for
the factfinder at the substantive
OWI
trial from a prior refusal hearing.
Third, while it may be argued that
a delay in
the revocation of an individual
who has
refused a chemical test may not
be within the
"intent and purpose" of the implied
consent
law, the effect of the delay in
any
particular case is but one of the
many
factors to be considered by the
circuit court
within the exercise of its discretion.
Without question, the purpose of
the implied
consent law, including the refusal
hearing
subsections of section 343.305,
is to
facilitate the identification and
immediate
removal of intoxicated drivers
from the
public highways.
See
State v. Nordness,
128 Wis.2d 15, 27 n.5,
381 N.W.2d 300 (1986);
State v. Neitzel,
95 Wis.2d 191, 193,
289 N.W.2d 828 (1980).
This purpose is not compromised,
however,
by entrusting this determination
to
the discretion of the circuit
courts of this state.
With the exception of delay in the
imposition
of the penalty of revocation, I
perceive
nothing burdensome upon the state
in the
delay of a refusal hearing until
after the
trial on the substantive OWI charge.
| 77 OAG 4 5 6 7 8 9 10 11 12 13 14 15 16 17 |
Despite the lack of a prior refusal
hearing,
the evidence of a refusal to submit
to a
chemical test is admissible at
the
substantive OWI trial to establish
"consciousness of guilt."
State v. Zielke,
137 Wis.2d 39, 47-48,
403 N.W.2d 427 (1987);
State v. Crandall,
133 Wis.2d 251, 257-60,
394 N.W.2d 905 (1986),
citing among others,
South Dakota v. Neville,
459 U.S. 553 (1983),
and
State v. Albright,
98 Wis.2d 663, 668-69,
298 N.W.2d 196 (Ct.App. 1980).
This rule of admissibility is always
subject to the corollary rule permitting
an individual to introduce any
evidence
that tends to show that a refusal
occurred for some reason other
than a "consciousness of guilt."
State v. Sayles,
124 Wis.2d 593, 596-98,
370 N.W.2d 265 (1985);
State v. Bolstad,
124 Wis.2d 576, 585-86,
370 N.W.2d 257 (1985).
And, despite the outcome of the
substantive
OWI trial, the prosecution may,
in
appropriate circumstances, continue
to prosecute the refusal case.
State v. Brooks,
113 Wis.2d 347,
335 N.W.2d 354 (1983).
Although the Wisconsin Supreme Court
in
Brooks, supra, held that a trial
court
had the discretion to dismiss a
refusal
case once there had been a plea
of guilty
to the substantive OWI charge,
the court
stated the following:
We stress that the power to
dismiss is a discretionary one.
There may be circumstances where
the
court may conclude in a particular
case not to dismiss the refusal
charge although a plea of guilty
to OWI has been taken.
Whether such refusal to dismiss
can be
justified as a proper exercise
of
discretion will be dependent upon
the
ambience of the particular case.
Brooks, 113 Wis.2d at 359.
The previous observations now lead
to my
response to your most significant
inquiry Ä
question 3.
While I believe the burdens on the
state
of a refusal hearing occurring
after the
substantive OWI trial are negligible,
the
facts inspiring your inquiries
suggest a
far greater concern perceived by
those
individuals facing a refusal hearing
prior to their substantive OWI
trial
The basis for the perceived dilemma
is the
necessity of choosing between two
constitutional rights:
(1) the fifth amendment privilege
against
self-incrimination;
and
(2) the constitutionally protected
interest
in their driver's
license, which
prevents removal
without due process.
Dixon v. Love 431 U.S. 105 (1977);
Bell v. Burson, 402 U.S. 535 (1971);
Best v. State, 99 Wis.2d 495.
299 N.W.2d 604 (Ct.App. 1980).
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Apparently, those individuals, perceive
a
fifth amendment dilemma in being
forced to
either present their reasons for
refusal of
a chemical test at the refusal
hearing,
thereby disclosing the theory of
their
defense to the substantive OWI
charge,
as well as disclosing possibly
incriminating
evidence by the waiver of their
privilege
against self-incrimination, or
remaining
silent and losing their driver's
license
for a period of sixty days.
A distinction must be made between
the two
discrete questions the perceived
dilemma
raises:
(1) does an individual's concern
about
compromising
his or her privilege
against self-incrimination
by testifying
at the refusal
hearing provide a proper
factor that
the court may consider in
the exercise
of its discretion in
determining
whether to grant a stay; and
(2) does that concern require the
granting
of a stay to
protect that privilege.
In my opinion, a court may properly
take
into account self-incrimination
concerns in ordering a stay.
Cf.
State ex rel. Flowers v. Health
and
Social Services Department,
81 Wis.2d 376, 396-97,
260 N.W.2d 727 (1978)
(circuit court did not abuse its
discretion in delaying parole
revocation proceeding until
after trial on pending criminal
charge because of possible
self-incrimination concerns).
However, it is also my opinion that
the
concern over self-incrimination
does not
require a stay of the refusal hearing.
Even when the substantive OWI charge
is a
criminal offense, I cannot agree
with the
contention of those that argue
that either of
the earlier described consequences
violates
their fifth amendment privilege
against
self-incrimination.[2]
First, the risk of disclosing the
theory of
the defense to the substantive
OWI charge
does not differ from the pretrial
disclosures
required in all other criminal
cases.
For example, in
Williams v. Florida, 399 U.S. 78
(1970),
the United States Supreme Court
upheld a statute compelling pretrial
disclosure of the names and addresses
of alibi witnesses intended to
be
called at trial.
The Court noted that a criminal
trial "is
not yet a poker game in which players
enjoy an absolute right always
to
conceal their cards until played."
Williams, 399 U.S. at 82. The Court held:
At most, the rule only compelled
petitioner to accelerate the timing
of
his disclosure, forcing him to
divulge
at an earlier date information
that the
petitioner from the beginning planned
to
divulge at trial.
| 77 OAG 4 5 6 7 8 9 10 11 12 13 14 15 16 17 |
Nothing in the Fifth Amendment privilege
entitles a defendant as a matter
of
constitutional right to await the
end
of the State's case before announcing
the nature of his defense, any
more
than it entitles him to await the
jury's verdict on the State's
case-in-chief before deciding whether
or not to take the stand himself.
Williams, 399 U.S. at 85.
Subsequently, in
Wardius v. Oregon, 412 U.S. 470,
475 (1973),
the Court held that pretrial discovery
in
criminal cases was a "two-way street,"
requiring reciprocal disclosures
by
the state under the due process
clause.
The Court's holding in Wardius does
not
diminish its earlier holding in
Williams that
no fifth amendment rights were
implicated by
the disclosure required of a defendant.
Unlike the notice of alibi statutes
discussed in Williams and Wardius,
the
implied consent law does not require
a
defendant to disclose information
to the
state regarding the defense to
the
substantive OWI charge.
Rather, it merely gives an individual
who has
refused a chemical test the right
to require
the state to demonstrate that the
police
officers complied with the statute
prior
to requiring the test.
Since to do so, the state must demonstrate
that the officer had probable cause
to arrest
the individual on the substantive
OWI charge,
it is the state, not the defendant,
which is
compelled to "show its hand" on
the merits
of the substantive OWI charge in
advance
of the trial.
Any lack of reciprocity in scheduling
a
refusal hearing prior to the substantive
OWI charge is to the advantage
of the
individual who is not required
to
make equivalent disclosures.
Second, a more serious concern is
the
potential for compelling a disclosure
of
incriminating facts material to
the
defense at the substantive OWI
trial.
For the following reasons, however,
I do not
believe that an individual has
a right to
stay the refusal hearing on this
basis.
First, requiring an individual to
defend a
refusal hearing does not place
that
individual in an untenable position
in a
constitutional sense because he/she
is forced
to choose between not defending
the refusal
hearing or defending it by sacrificing
his/her privilege against self-incrimination.
Second, when and if such a dilemma
would
exist, a satisfactory resolution
within the
discretion of the trial court is
available.
| 77 OAG 4 5 6 7 8 9 10 11 12 13 14 15 16 17 |
In
Neely v. State,
97 Wis.2d 38;
292 N.W.2d 859 (1980),]
the Wisconsin Supreme Court
considered the difficulties attached
to a defendant's decision not to
answer relevant inquiries having
once testified during a trial.
The court recognized that individuals
are often required to make choices
between "hard alternatives" that
do not
result in unconstitutional dilemmas.
In Neely, the court held that while
a
defendant has an interest in defending
against the state's accusations
by testifying
on his own behalf, neither the
choice to
testify nor the choice of alternatives
a
defendant must make once he waives
his
privileges by testifying can be
said to be
unconstitutionally imposed on him.
Neely, 97 Wis.2d at 52.
The court relied upon an earlier
decision of
the United States Supreme Court:
The criminal process, like the rest
of
the legal system, is replete with
situations requiring "the making
of
difficult judgments" as to which
course
to follow. . . . Although a defendant
may have a right, even of constitutional
dimensions, to follow whichever
course
he chooses, the Constitution does
not
by that token always forbid
requiring him to choose.
Neely, 97 Wis.2d at 52, quoting
McGautha v. California,
402 U.S. 183, 213 (1971)
The language of McGautha is most
compelling
when one recognizes the significant
choice
faced by McGautha which was found
acceptable
by the United States Supreme Court.
In McGautha, the Court found no
intolerable
tension between a defendant's constitutional
right not to be compelled to be
a witness
against himself and the alleged
due process
right to be heard on the issue
of punishment
where the procedure provided for
a unitary
trial on both the issue of punishment
and
guilt in a capital case and the
defendant
was forced to choose whether to
remain
silent on the issue of guilt at
the cost of
surrendering any chance to plead
his case on
the issue of punishment or testify
on the
issue of punishment at the risk
of damaging
his case on guilt.
McGautha, 402 U.S. at 214.
Subsequent decisions of the United
States
Supreme Court have further clarified
the
"hard choices" which do not compromise
a
defendant's fifth amendment rights.
One area of concern has been in
the context
of public employe and public contractor
law.
The United States Supreme Court's
major
concern in this area has been in
preventing
testimony obtained from an employe
under
threat of dismissal from being
used
against that person in a subsequent
criminal proceeding.
| 77 OAG 4 5 6 7 8 9 10 11 12 13 14 15 16 17 |
For example, in
Garrity v. State of New Jersey,
385 U.S. 493, 500 (1967),
police officers who were being
questioned
about alleged ticket fixing were
informed
that a refusal to answer questions
on
fifth amendment grounds would
result in their dismissal.
The Court held that "the protection
of the
individual under the Fourteenth
Amendment
against coerced statements prohibits
use
in subsequent criminal proceedings
of
statements obtained under threat
of removal from office."
Similarly, in
Uniformed San. Men Ass'n v. Com'r
of San.,
392 U.S. 280, 284 (1968),
city employes who refused to sign
waivers of
fifth amendment immunity before
a grand jury
were fired from their jobs.
The Court acknowledged that the
possible
ineffectiveness of the waiver did
not
diminish the impropriety of the
state's action.
The real constitutional controversy
arose
from the alternatives with which
the employes
were faced, because "the precise
and plain
impact of the proceedings . . .
was to
present them with a choice between
their
constitutional rights or their
jobs."
More recently, the Supreme Court
considered
the "hard choice" doctrine in the
context
of a prison disciplinary proceeding
in
Baxter v. Palmigiano, 425 U.S.
308 (1976).
In Baxter, plaintiff asserted that
a Rhode
Island rule allowing the factfinder
in a
prison disciplinary proceeding
to draw an
adverse inference from a failure
to testify
derogated his fifth amendment privilege.
The Court rejected this argument,
finding the
Rhode Island rule was not an invalid
attempt
to penalize the exercise of the
privilege.
Justice White wrote for the majority:
A prison inmate in Rhode Island
electing
to remain silent during his disciplinary
hearing, as respondent Palmigiano
did
here, is not in consequence of
his
silence automatically found guilty
of the infraction with which he
has been charged.
Under Rhode Island law, disciplinary
decisions "must be based on substantial
evidence manifested in the record
of
the disciplinary proceeding.
. . . It is thus undisputed that
an
inmate's silence in and of itself
is
insufficient to support an adverse
decision by the Disciplinary Board."
In this respect, this case is very
different from the circumstances
before the Court in the
Garrity v. New Jersey,
385 U.S. at 493;
Lefkowitz v. Turley,
414 U.S. at 70
decisions, where refusal to submit
to
interrogation and to waive the
Fifth
Amendment privilege, standing alone
and
without regard to other evidence,
resulted in loss of employment
or
opportunity to contract with the
State.
| 77 OAG 4 5 6 7 8 9 10 11 12 13 14 15 16 17 |
There, failure to respond to
interrogation was treated as a
final
admission of guilt.
Here, Palmigiano remained silent
at the
hearing in the face of evidence
that
incriminated him; and, as far as
this
record reveals, his silence was
given
no more evidentiary value than
was
warranted by the facts surrounding
his case.
Baxter, 425 U.S. at 317-18 .
The lesson of the preceding "hard
decision"
cases is that it is not constitutionally
impermissible to require an individual
to
defend a refusal proceeding prior
to the
substantive OWI trial.
There is no indication that invocation
of the
fifth amendment at a refusal hearing
will
result in an adverse decision.
The state must always prove its
case at
the refusal hearing by establishing
each of the necessary elements.
There exists no requirement at the
refusal
hearing that an individual waive
his/her
immunity under the fifth amendment.
Nor is there a threat that an individual
will
have their license suspended simply
for
invoking the privilege.
Since there is no requirement that
an
individual either answer questions
which
might incriminate him/her in future
criminal
proceedings or have their license
suspended
or revoked, there is no impermissible
effect
on an individual's fifth amendment
privilege
in requiring the refusal hearing
to occur
prior to the substantive OWI trial.
The harshness of the "hard choice"
doctrine
militates against its implementation.
However, the "hard choice" doctrine
need
not be determinative.
In my opinion, a form of judicially
created
and judicially applied "use" immunity
authorized by both decisions of
the United
States Supreme Court and our Wisconsin
Supreme Court would be a preferable
alternative.
In Lefkowitz v. Turley, 414 U.S.
70 (1973),
after surveying numerous previous
cases
implicating an individual's fifth
amendment
rights, the United States Supreme
Court
stated:
In any of these contexts,
therefore, a
witness protected
by the privilege may
rightfully refuse
to answer unless and
until he is protected
at least against
the use of his compelled
answers and
evidence derived therefrom
in any
subsequent criminal
case in
which he is a defendant.
Kastigar v. United States,
406 U.S. 441,
92 S.Ct. 1653,
32 L.Ed.2d 212 (1972).
Absent such protection, if he is
nevertheless
compelled to answer, his answers
are
inadmissible against him in a later
criminal prosecution.
Lefkowitz, 414 U.S. at 78.
| 77 OAG 4 5 6 7 8 9 10 11 12 13 14 15 16 17 |
Subsequently, in Baxter, the prison
disciplinary hearing case,
the Court stated
if inmates are compelled
in those
proceedings to furnish
testimonial
evidence that might
incriminate them in
later criminal proceedings,
they must be
offered "whatever
immunity is required
to supplement the
privilege" and may not
be required to "waive
such immunity."
Baxter, 425 U.S. at 317.
The Wisconsin Supreme Court has
already
fashioned such limited "use" immunity.
In
State v. Evans,
77 Wis.2d 225,
252 N.W.2d 664 (1977),
the court resolved the issue of
a
defendant's fifth amendment rights
being
sacrificed by statements made to
a probation
officer by holding that:
Statements or the fruits
of statements
made by a probationer
to his probation
agent or in a probation
revocation
hearing in response
to questions which,
as here, are the result
of pending
charges or accusations
of particular
criminal activity,
may not be used to
incriminate the probationer
in a
subsequent criminal
proceeding.
Evans, 77 Wis.2d at 227-28.
In Evans, the court further stated:
In order to guarantee
the fifth
amendment rights of
a probationer or a
parolee and at the
same time to preserve
the integrity of the
probation system,
we hold that upon
timely objection in
criminal proceedings,
the testimony of a
probationer or a parolee
given in
response to questions
by a probation or
parole agent or at
a probation or parole
revocation hearing,
which questions are
prompted by pending
charges or
accusations of particular
criminal
activity, or any evidence
derived from
such testimony, is
inadmissible against
the probationer or
parolee during
subsequent proceedings
on related
criminal charges except
for purposes of
impeachment or rebuttal
where his
testimony at the criminal
proceeding is
clearly inconsistent
with the statements
made previously.
In such case the trial
court may admit
the revocation testimony
or its fruits
for the purpose of
showing the
probability that the
probationer or
parolee has committed
perjury.
Evans, 77 Wis.2d at 235-36 .
Likewise, testimony presented by
a criminal
defendant at a confession suppression
hearing
is inadmissible at the criminal
trial.
State ex rel. Goodchild v. Burke,
27 Wis.2d 244, 265,
133 N.W.2d 753 (1965).
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A similar rationale is appropriate
in the present context.
If the perceived dilemma were to
exist, it
would be proper to allow an individual
to
testify at the refusal hearing
without fear
that the testimony could be used
in a
subsequent substantive OWI trial.
This form of limited judicially
created and
judicially applied "use" immunity
would not
be burdensome upon prosecutors
because the
nature of issues addressed at the
refusal
hearing do not allow for incriminating
or
inculpatory statements.
Rather, those issues encourage only
explanations favorable to the individual.
Although I believe that my response
to
question 3 is determinative of
both questions
4 and 5, I will briefly address
the concerns
in each of those questions.
In question 4, you ask if in order
to grant a
stay, an individual must demonstrate
an
actual and/or substantial possibility
of self-incrimination.
You derive that standard from
a federal decision.
Liljenfeldt v. United States,
588 F.Supp. 966 (E.D. Wis. 1984).
However, that standard is really
no different
than the standard approved,
In Matter of Grant,
83 Wis.2d 77, 82,
264 N.W.2d 587 (1978) Ä
the fear of self-incrimination must
be
"real and appreciable," "not merely
an imaginary possibility of danger."
In my opinion, if such a situation
of "real
or appreciable" danger could be
shown, a
requirement akin to either of the
two
stated standards would be acceptable
and
within the discretion of a circuit
court.
Your question 5 inquires regarding
the
necessity or availability of immunity
to replace the potential loss of
the
privilege of self-incrimination.
My previous response to question
3
demonstrates that I believe that
a form of
judicially created and judicially
applied
"use" immunity would be appropriate
to
supplant any claim of a loss of
the
privilege against self-incrimination.
DJH:JSS
In addition to a "failure of proof"
defense relating to the statutory
identified
elements at a refusal hearing,
the implied
consent law establishes an affirmative
defense available to the accused.
If an individual can demonstrate
by a
preponderance of the evidence that
the
refusal to submit to a test was
due to
a physical inability to submit
to the
test caused by a physical disability
or disease unrelated to the use
of
alcohol, controlled substances
or
drugs, the refusal was not unlawful.
Section 343.305(3)(b), (5)(d), Stats.
If in a particular case the OWI
charge
is not criminal, self-incrimination
concerns
would have no validity whatsoever,
either to
support a claim that the refusal
hearing must
be stayed, or to support a claim
that the
trial court, in the exercise of
its
discretion, should grant a stay
because of those concerns.
See
Allen v. Illinois, 478 U.S. 364
(1986).
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