Wisconsin Legislature: Courts; Criminal Law; Implied Consent Law;

77 Op. Att'y Gen. 4, 9 (1988)

Brooks

, 113 Wis. 2d at 359.

77 Op. Att'y Gen. 4, 9 (1988)

The previous observations now lead to my response to your most significant inquiry--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.

77 Op. Att'y Gen. 4, 9-10 (1988)

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). 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.

77 Op. Att'y Gen. 4, 10 (1988)

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.¯

77 Op. Att'y Gen. 4, 10 (1988)

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:

77 Op. Att'y Gen. 4, 10-11 (1988)

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. 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.

77 Op. Att'y Gen. 4, 11 (1988)

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.

77 Op. Att'y Gen. 4, 11 (1988)

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.

77 Op. Att'y Gen. 4, 11 (1988)

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 Op. Att'y Gen. 4, 12 (1988)

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:

77 Op. Att'y Gen. 4, 12 (1988)

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.

77 Op. Att'y Gen. 4, 12 (1988)

Neely

, 97 Wis. 2d at 52, quoting

McGautha v. California

, 402 U.S. 183, 213 (1971) (citation omitted).

77 Op. Att'y Gen. 4, 12 (1988)

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

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.

77 Op. Att'y Gen. 4, 12-13 (1988)

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. 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."

77 Op. Att'y Gen. 4, 13 (1988)

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:

77 Op. Att'y Gen. 4, 13-14 (1988)

[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. 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.

77 Op. Att'y Gen. 4, 14 (1988)

Baxter

, 425 U.S. at 317-18 (citations omitted).

77 Op. Att'y Gen. 4, 14 (1988)

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.

77 Op. Att'y Gen. 4, 14 (1988)

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.

77 Op. Att'y Gen. 4, 14 (1988)

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:

77 Op. Att'y Gen. 4, 14-15 (1988)

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.

77 Op. Att'y Gen. 4, 15 (1988)

Lefkowitz

, 414 U.S. at 78. 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.

77 Op. Att'y Gen. 4, 15 (1988)

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:

77 Op. Att'y Gen. 4, 15 (1988)

[S]tatements 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.

77 Op. Att'y Gen. 4, 15 (1988)

Evans

, 77 Wis. 2d at 227-28. In

Evans

, the court further stated:

77 Op. Att'y Gen. 4, 15 (1988)

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.

77 Op. Att'y Gen. 4, 15-16 (1988)

Evans

, 77 Wis. 2d at 235-36 (citations omitted). 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).