Washington County v. Justin David Dettmering

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
December 21, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2022AP941 Cir. Ct. No. 2022TR86

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

WASHINGTON COUNTY,

PLAINTIFF-RESPONDENT,

V.

JUSTIN DAVID DETTMERING,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court
for Washington County: JAMES K. MUEHLBAUER, Judge. Affirmed.

¶1 LAZAR, J.1 Justin David Dettmering appeals from a
judgment of conviction for operating a motor vehicle while under the

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(c)
(2019-20). All references to the Wisconsin Statutes are to the 2019-20 version unless
otherwise noted.
No. 2022AP941

influence of an intoxicant contrary to WASHINGTON COUNTY, WIS. CODE
§ 200-1 (2019) (adopting WIS. STAT. § 346.63(1)(a)),2 and an order denying
his motion for a jury trial. He contends that the trial court erred in denying
his motion because he was not informed about his right to a jury trial as
required by WIS. STAT. § 345.34. This court disagrees and affirms.

¶2 Washington County Sheriff’s Deputy Cody Ausloos observed
Dettmering do a “burn-out” with his truck near a bar on December 24,
2021. Ausloos activated his emergency lights and followed Dettmering a
short distance until Dettmering came to a stop near a shed. Before
stopping, Dettmering drove through a ditch and missed the driveway
leading to the shed. When Ausloos approached Dettmering on the driver’s
side of the vehicle, he noticed that Dettmering had bloodshot, glossy eyes,
slurred speech, and a strong odor of intoxicants coming from his person.
Ausloos suspected impaired driving and asked Dettmering to perform
standardized field sobriety tests, but Dettmering refused.

¶3 Ultimately, Deputy Ausloos issued a citation for operating a
motor vehicle while under the influence of an intoxicant. The citation
provided a court date of February 3, 2022, but indicated that Dettmering’s
appearance was not required in Washington County Circuit Court. In a
section entitled “INSTRUCTIONS - READ CAREFULLY,” the citation
further read, “You may demand a jury trial, rather than a trial before a

2
A copy of the Code of Washington County is available at
https://ecode360.com/WA3863 (last visited December 13, 2022).

2
No. 2022AP941

judge, but must make that demand in writing and pay the proper fee within
10 days of entering a not guilty plea.”

¶4 Despite the lack of a mandatory appearance, Dettmering
elected to go to the Washington County Justice Center on February 3, 2022,
where he met with an Assistant District Attorney (ADA). At the
conclusion of this meeting, Dettmering signed a form stating, “No
agreement reached; defendant enters not guilty plea and requests court trial
be scheduled.” The form was filed into the record that same date. The
parties agree that the ADA with whom Dettmering met on February 3 did
not discuss Dettmering’s right to a jury trial.

¶5 Dettmering subsequently retained counsel who, on March 15,
2022, filed a notice of retainer and demand for discovery. On March 24,
2022, Dettmering appeared by counsel at a status hearing at which the trial
court confirmed a court trial date of April 14, 2022. Approximately two
weeks after that status hearing, on April 8, 2022, Dettmering’s counsel filed
a motion requesting a jury trial. In this motion, Dettmering argued that
WIS. STAT. § 345.34 requires “when a defendant is brought before a court
with jurisdiction to try a case, the defendant shall be informed that he or she
is entitled to a jury trial” and that “[b]ecause [Dettmering] was not advised
of the right to a jury trial, the Court should allow [him] a jury trial,” even
though the request was not made within ten days of entering his plea. After
a hearing (held immediately before trial), the court denied the motion,
finding that Dettmering “was informed” of his right to request a jury trial
“in black and white in the citation,” satisfying the requirement of § 345.34.

3
No. 2022AP941

¶6 Dettmering appeals his conviction on the sole ground that the
trial court erred in denying his motion for a jury trial. This case requires
interpretation of WIS. STAT. § 345.34. Statutory interpretation is a question
of law that this court reviews de novo. City of Madison v. Donohoo, 118
Wis. 2d 646, 651, 348 N.W.2d 170 (1984).

¶7 There are two subsections of WIS. STAT. § 345.34 potentially
relevant in this appeal:

(1) If the defendant appears in response to a
citation, or is arrested and brought before a court
with jurisdiction to try the case, the defendant shall
be informed that he or she is entitled to a jury trial.
The defendant may plead guilty, not guilty, or no
contest. If the defendant requests a continuance at
the initial appearance, the court shall adjourn the
arraignment without entering any plea.

….

(3) If a summons is served or citation is issued
by a police officer for a violation of any municipal
ordinance or of chs. 194 or 340 to 348 and 350, the
defendant may enter a plea of not guilty based on
such summons or citation by letter to the judge at
the address indicated on the summons or citation
….

¶8 Dettmering argues that subsection (1) applies here because he
“appeared” at the courthouse on his court date, albeit voluntarily. The
County contends that subsection (3)—which does not require a defendant to
be personally informed of the procedure for requesting a jury trial—applies
in cases like this in which a defendant’s appearance is voluntary, rather than
mandatory. This court agrees with the County that subsection (1) does not
apply because Dettmering did not appear in response to a citation; his
appearance was not mandatory, and he did not appear before a court. This,

4
No. 2022AP941

in and of itself, evidences that WIS. STAT. § 345.23(3) is the applicable
provision.

¶9 But even if WIS. STAT. § 345.34(1) is the relevant subsection,
it does not warrant reversal of the order denying a jury trial and vacating
Dettmering’s conviction for two reasons. First, at least one of the
conditions precedent to the statutorily required advising of the right to a
jury trial was not met: Dettmering did not “appear” before the court, nor
was he “brought before a court with jurisdiction to try the case.” See
§ 345.34(1). He simply met with an ADA to determine whether he might
negotiate a resolution to the case, and that meeting was in the courthouse.

¶10 Indeed, the very language of Dettmering’s motion for a jury
trial defeats his appeal. That motion quotes the language of the statute in
arguing that “when a defendant is brought before a court with jurisdiction
to try a case, the defendant shall be informed that he or she is entitled to a
jury trial,” but in the very next sentence admits that “Mr. Dettmering was
not brought before the Court” in explaining why there was no transcript.
This makes Dettmering’s case very different from that of Donohoo, in
which the defendant was required to appear before the court and in which
the court actively misinformed the defendant that he was required to enter a
plea on that day. Donohoo, 118 Wis. 2d at 648. Both of the two prefatory
requirements of WIS. STAT. § 345.34(1) applied to Donohoo: his
appearance was mandatory, so he appeared “in response to a citation,” and
he was “brought before a court.” By contrast, Dettmering’s only
interaction with the court on February 3 was that his written plea form
requesting a “court trial” (and not a jury trial) was filed into the record.

5
No. 2022AP941

¶11 Second, this court agrees with the trial court that the citation
Dettmering received did, in fact, inform him of his statutory right to a jury
trial and the procedure for requesting a jury trial. The statute says nothing
about a defendant being personally or verbally informed or about being
informed for a second time of the right to a jury trial. Here, Dettmering
was informed in writing of his right to a jury trial and the procedure for
exercising that right. Moreover, Dettmering’s retained counsel appeared at
a March, 2022, status hearing and did not request a jury trial. The motion
was then filed six days before the court trial date. Accordingly, the motion
for a jury trial is without merit.

¶12 For these reasons, this court concludes that the trial court did
not err in denying Dettmering’s untimely motion for a jury trial.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)4.

6