State v. Michael A. Wilson

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.
August 31, 2023
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2022AP1099 Cir. Ct. No. 2021TR1741R

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MICHAEL A. WILSON,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Columbia County:
TROY D. CROSS, Judge. Affirmed.

¶1 NASHOLD, J.1 Michael A. Wilson appeals a judgment of
conviction for refusing to take an evidentiary test for intoxication as requested by
a police officer. He argues that the circuit court erred in failing to dismiss the

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(c) (2021-22).
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
No. 2022AP1099

current refusal action because it was barred by the doctrine of claim preclusion
and because the officer lacked reasonable suspicion to stop his vehicle. I reject
these arguments and therefore affirm.

BACKGROUND

¶2 The following facts are taken from the refusal hearing in this matter.
On December 6, 2018, at approximately 9:05 p.m., a City of Columbus police
officer received information from dispatch that a concerned citizen had called
from a specified bowling alley saying that a person operating a red sedan had left
the bowling alley and was going south on Industrial Drive, and that the person
operating the vehicle was intoxicated. Dispatch relayed to the officer that the
caller was willing to give a statement and provide his or her identity.

¶3 Approximately five minutes later, the officer observed a red sedan
traveling on James Street, about two miles from the bowling alley, which was
consistent temporally and geographically with the caller’s information. The
officer followed the red sedan and observed it engage in an “S-shaped swerve” on
two occasions, going from the yellow center line to the white line separating the
vehicle lane from the bicycle lane. Although at no point did the officer observe
the vehicle cross the yellow center line, the vehicle did cross the white line at least
once.

¶4 The officer executed a traffic stop of the vehicle and made contact
with its operator, Wilson. Wilson had slurred speech and bloodshot and glassy
eyes, and the officer detected an “odor of intoxicants coming from the interior of
the vehicle.” Wilson told the officer that he was coming from a bar, and that he
had not had a lot to drink. At that point, the officer requested that Wilson exit the
vehicle and perform standardized field sobriety tests.

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¶5 Following administration of field sobriety tests and a preliminary
breath test, Wilson was placed under arrest, and the officer read Wilson the
Informing the Accused form in compliance with WIS. STAT. § 343.305(4). Wilson
was asked to submit to an evidentiary test of his blood, which he refused. As a
result of the refusal, the officer issued a notice of intent to revoke Wilson’s
operating privilege on December 6, 2018, and Wilson was also issued a citation
for operating while intoxicated (OWI) as a first offense. Wilson subsequently
appeared in Columbia County municipal court and resolved the matter by pleading
no contest to first-offense OWI in exchange for dismissal of the refusal action.

¶6 On January 24, 2020, Wilson was charged with another OWI offense
in Fond du Lac County, case No. 2020-CF-50.2 Wilson filed a motion in
Columbia County municipal court to reopen and dismiss the first-offense OWI on
grounds that the municipal court lacked competency to adjudicate the matter
because the OWI should have been charged as a second offense due to a prior
OWI conviction. While Wilson’s motion was pending, on October 14, 2020,
Wilson and counsel for the City of Columbus entered into a stipulation, accepted
by the municipal court, whereby the first-offense OWI conviction was reopened
and amended to a conviction for reckless driving. The City did not require the
2018 refusal action that had been dismissed to be reopened.

¶7 On February 26, 2021, a different officer issued a new notice of
intent to revoke Wilson’s operating privilege. Thereafter, Wilson filed a request

2
Although the hearing transcript contains information regarding the Fond du Lac case,
including the case number, that the charges arose in 2020, and that Wilson pled to and was
adjudicated guilty of OWI, the January 24, 2020 date is taken from Wisconsin’s Consolidated
Court Automation Programs (CCAP). See State v. Aderemi, 2023 WI App 8, ¶7 n.3, 406 Wis. 2d
132, 139, 986 N.W.2d 306 (we may take judicial notice of CCAP records).

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No. 2022AP1099

for a refusal hearing, along with a motion to dismiss the 2021 refusal action, and
the State filed a response.

¶8 The circuit court held a hearing, at which it first addressed Wilson’s
motion to dismiss. Pertinent here, Wilson argued that, because the City had
moved to dismiss the 2018 refusal action in municipal court in 2018 and did not
seek to have it reinstated in 2020 as part of the stipulation to reopen and amend the
OWI citation to a reckless driving citation, and because the municipal court was a
proper venue for the 2018 refusal action, the State could not, years later, bring the
current, 2021, refusal action.

¶9 In response, the State argued that the 2018 refusal action was
improperly filed in municipal court because Wilson had a prior OWI conviction.
As a result, the State argued, the municipal court lacked competency to adjudicate
the 2018 refusal action. Wilson responded that, because the 2018 refusal action
had been dismissed in 2018, claim preclusion applied to bar the 2021 refusal
action.3

¶10 The circuit court denied Wilson’s motion to dismiss the 2021 refusal
action. Pertinent here, the court determined that, although the 2018 refusal action
was dismissed by the municipal court, that adjudication was without legal effect
because the municipal court lacked competency to adjudicate the 2018 refusal
action in light of Wilson’s prior OWI conviction. Thus, the 2021 refusal action
was properly before the circuit court.

3
Wilson used the phrase res judicata rather than claim preclusion. However, our courts
have recognized that res judicata is now referred to as claim preclusion. See Northern States
Power Co. v. Bugher, 189 Wis. 2d 541, 550, 525 N.W.2d 723 (1995).

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No. 2022AP1099

¶11 After the circuit court denied Wilson’s motion to dismiss the 2021
refusal action, the court held the refusal hearing that Wilson requested. The court
heard testimony from the officer regarding the stop of Wilson’s vehicle, the field
sobriety and preliminary breath tests, Wilson’s arrest for OWI, and Wilson’s
refusal to submit to evidentiary testing for intoxication, as summarized above.

¶12 Following the officer’s testimony and arguments from the parties,
the circuit court ruled that Wilson’s refusal was improper. Pertinent to this appeal,
in reaching this conclusion, the court determined that there was reasonable
suspicion to support the stop of Wilson’s vehicle based on the officer’s
observation of the vehicle engaging in two S-swerves, its crossing the white line
separating the vehicle lane from the bicycle lane, and the citizen caller’s
information regarding Wilson’s intoxication, the latter of which the court
characterized as “icing on the cake.” Accordingly, the court entered a judgment of
conviction for Wilson’s refusal. Wilson appeals.

DISCUSSION

¶13 Wilson appeals his judgment of conviction for refusing to take an
evidentiary test for intoxication following his arrest for OWI. See WIS. STAT.
§ 343.305(9)(a). He makes two arguments on appeal. First, he argues that the
State is barred under the doctrine of claim preclusion from bringing the 2021
refusal action because the 2018 refusal action was dismissed as part of a plea
agreement during which the City did not move to reopen the dismissed 2018
refusal action, and the State did not file the 2021 refusal action until approximately
twenty-six months after Wilson’s offense. Second, Wilson argues that the circuit
court erred in concluding that he improperly refused evidentiary testing for

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No. 2022AP1099

intoxication because the officer lacked reasonable suspicion to stop his vehicle. I
address and reject these arguments, in turn.

I. Claim Preclusion

¶14 Claim preclusion makes a final adjudication on the merits in a prior
action a bar to later actions between the same parties as to all matters that were or
could have been litigated in the earlier action. Northern States Power Co. v.
Bugher, 189 Wis. 2d 541, 550, 525 N.W.2d 723 (1995). Claim preclusion has
three elements: “(1) an identity between the parties or their privies in the prior and
present suits; (2) an identity between the causes of action in the two suits; and,
(3) a final judgment on the merits in a court of competent jurisdiction.” Id. at 551.
“The burden of proving claim preclusion is upon the party asserting its
applicability.” Pasko v. City of Milwaukee, 2002 WI 33, ¶16, 252 Wis. 2d 1, 643
N.W.2d 72. Whether claim preclusion applies to a particular factual scenario is a
question of law subject to de novo review by this court. Id.

¶15 The primary dispute in this case centers on the third element of
claim preclusion: whether there was a final judgment with respect to the original
refusal in a “court of competent jurisdiction.” Wilson concedes that the municipal
court “lacked competence to exercise its subject matter jurisdiction over the
refusal citation in light of the fact that it arose from what was factually a
second-offense OWI charge.” According to Wilson, however, claim preclusion
nevertheless applies based on the following premises.

¶16 Wilson first argues that, consistent with City of Cedarburg v.
Hansen, 2020 WI 11, 390 Wis. 2d 109, 938 N.W.2d 463, although the municipal
court lacked competency to exercise subject matter jurisdiction over the original
refusal, the municipal court had subject matter jurisdiction, a premise I accept as

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No. 2022AP1099

true for purposes of this appeal. He accurately notes that, unlike challenges to
subject matter jurisdiction, challenges to a court’s competency to exercise its
subject matter jurisdiction are forfeited if not timely raised in that court. See
Village of Trempealeau v. Mikrut, 2004 WI 79, ¶¶30, 38, 273 Wis. 2d 76, 681
N.W.2d 190. Wilson argues that here, the State forfeited any challenge regarding
the municipal court’s competency to adjudicate the 2018 refusal action by: the
City’s failure to raise the competency issue when the 2018 refusal action was
dismissed in municipal court; the City’s failure to raise the issue in 2020 when the
City and Wilson stipulated, and the municipal court agreed, to reopen the OWI
conviction and amend the conviction to reckless driving; and the State’s failure to
bring the 2021 refusal action until approximately twenty-six months after Wilson’s
offense. For the following reasons, I agree with the State that Wilson’s argument
must be rejected as undeveloped and unsupported by authority. See State v. Pettit,
171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (undeveloped legal
arguments and arguments unsupported by references to legal authority will not be
considered).

¶17 As stated, the third element of claim preclusion requires that there be
a final judgment on the merits “by a court of competent jurisdiction.” Bugher,
189 Wis. 2d at 551. Wilson does not argue that the municipal court was a court of
“competent jurisdiction” with respect to the 2018 refusal action. In fact, he
expressly concedes that the municipal court “lacked competence to exercise its
subject matter jurisdiction over the refusal citation.” Instead, Wilson’s argument
appears to be that the “competent jurisdiction” element is satisfied because the
City, the State, or both failed to challenge the municipal court’s competency. But
Wilson offers no authority or reasoned explanation for the proposition that a court
otherwise lacking “competent jurisdiction” for purposes of claim preclusion may

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No. 2022AP1099

be conferred with such by virtue of a party’s failure to challenge the court’s
competency. In other words, although Wilson is correct that a party may forfeit a
challenge to the court’s competency to exercise its subject matter jurisdiction, it
does not necessarily follow (nor does Wilson cite any authority establishing) that
such forfeiture results in the court’s gaining such competency, particularly for
purposes of satisfying the third element of claim preclusion. Accordingly, because
Wilson has failed to develop a legal basis for his assertion that the third element of
claim preclusion is satisfied, I affirm the circuit court’s determination rejecting his
argument that claim preclusion barred the State from initiating the 2021 refusal
action.

II. Reasonable Suspicion

¶18 Wilson next argues that the circuit court erred in denying his motion
to dismiss the 2021 refusal because the officer lacked reasonable suspicion to stop
his vehicle.4 See State v. Anagnos, 2012 WI 64, ¶41, 341 Wis. 2d 576, 815
N.W.2d 675 (lack of reasonable suspicion for stop may be raised as an issue at a
refusal hearing). I disagree.

¶19 A police officer may make an investigatory stop of a vehicle if the
officer reasonably suspects that the driver has committed or is about to commit a
crime or reasonably suspects that a person is violating a noncriminal traffic law.
County of Jefferson v. Renz, 231 Wis. 2d 293, 310, 603 N.W.2d 541 (1999). The
officer’s suspicion must be grounded upon “specific and articulable facts which,

4
From my nonexhaustive examination of the record, it does not appear that Wilson
challenged the 2021 refusal action in circuit court based on lack of reasonable suspicion for the
stop. However, because the State does not raise a forfeiture argument, I likewise do not address
it.

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No. 2022AP1099

taken together with rational inferences from those facts, reasonably warrant the
intrusion of the stop.” State v. Tomaszewski, 2010 WI App 51, ¶6, 324 Wis. 2d
433, 782 N.W.2d 725 (internal quotation marks and quoted source omitted). This
court determines the reasonableness of the stop based on the totality of the facts
and circumstances. Id. “The required showing of reasonable suspicion is low.”
State v. Eason, 2001 WI 98, ¶19, 245 Wis. 2d 206, 629 N.W.2d 625. Whether
there is reasonable suspicion to conduct a stop is a question of constitutional fact,
to which this court applies a two-step standard of review: the circuit court’s
findings of fact are upheld unless they are clearly erroneous, and the determination
of reasonable suspicion is reviewed de novo. State v. Williams, 2001 WI 21, ¶18,
241 Wis. 2d 631, 623 N.W.2d 106.

¶20 Based on the totality of facts known to the officer at the time of the
stop, I conclude that the officer had reasonable suspicion to believe that Wilson
was committing a crime, namely OWI.5 Prior to stopping Wilson’s vehicle, the
officer was aware of the following: (1) a caller from a local bowling alley—who
was willing to make a statement and identify himself or herself—made a citizen
complaint that Wilson had just left the bowling alley and was driving intoxicated;
(2) the caller provided a description of the vehicle Wilson was driving (a red
sedan) and the direction the vehicle was traveling; (3) the officer observed a red
sedan at a time and location that were consistent with the caller’s information;
(4) the officer observed the vehicle engage in two “S-shape swerve[s]”; and (5) the
officer observed the vehicle cross the white line into the bike lane.

5
The State does not argue that crossing the white line into the bike lane constituted a
traffic violation so as to provide, in itself, reasonable suspicion for the stop. Therefore, I do not
address that issue.

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No. 2022AP1099

¶21 Notably, Wilson provides no authority supporting his position that
the officer in this case lacked reasonable suspicion of OWI. Instead, he first relies
on two inapposite cases involving extensions of traffic stops to investigate
suspicion of drug-related activity, State v. Betow, 226 Wis. 2d 90, 593 N.W.2d
499 (Ct. App. 1999), and State v. Gammons, 2001 WI App 36, 241 Wis. 2d 296,
625 N.W.2d 623. The facts of these cases are not remotely analogous to those
present here.

¶22 Wilson also relies on State v. Post, 2007 WI 60, ¶14, 301 Wis. 2d 1,
733 N.W.2d 634, in which our supreme court rejected the State’s argument that
there should be a bright-line rule that weaving within a single lane constitutes
reasonable suspicion supporting a stop to investigate whether the operator of the
vehicle is impaired. However, Post is likewise unavailing because the instant case
does not involve only weaving within a traffic lane. Moreover, based on the
nature of the weaving that did occur in Post, the defendant’s driving for a period
of time in the parking lane rather than in the designated traffic lane, and the fact
that the incident occurred at 9:30 p.m. (a time very close to the time of the offense
here), the court concluded in Post that there was reasonable suspicion of OWI so
as to justify the stop. See id., ¶¶30-36. Thus, to the extent Post is relevant here, it
undermines, rather than supports, Wilson’s argument.

¶23 Other precedent further supports the conclusion that the officer in
this case had reasonable suspicion of OWI. For example, in State v. Rutzinski,
2001 WI 22, 241 Wis. 2d 729, 623 N.W.2d 516, our supreme court held that an
officer had reasonable suspicion of OWI based on a tip the officer received
through dispatch that an unidentified motorist had called to report a black pickup
truck weaving within its lane, varying its speed from too fast to too slow, and
tailgating. Id., ¶¶3-4. Although the officer himself did not observe any erratic

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No. 2022AP1099

driving before stopping vehicle, the Rutzinski court nonetheless upheld the
legality of the stop. In so doing, the court noted that the informant had exposed
himself or herself to being identified; that the informant provided verifiable
information based on personal observations, including a description of the
defendant’s vehicle and the direction in which it was traveling; and that the tip
suggested that the defendant “posed an imminent threat to the public’s safety.”
Id., ¶¶32-34.

¶24 Similarly, in Anagnos, our supreme court concluded that the
following facts gave rise to reasonable suspicion of OWI: at approximately
1:15 a.m., an officer observed the defendant’s vehicle: exit a parking lot and make
a left turn by crossing a highway divided by an elevated median, accelerate rapidly
to a stoplight, execute a second left turn without signaling, and again accelerate
rapidly. Anagnos, 341 Wis. 2d 576, ¶¶5-6. In reaching this conclusion, the
supreme court assumed that the circuit court had correctly determined that the
officer did not observe the defendant violate any laws prior to the stop, including
by driving over the median. Id., ¶¶44, 46. Nevertheless, the court held that
reasonable suspicion supported the stop because the facts, as articulated by the
officer, “lead to a reasonable suspicion that the driver of the vehicle made a series
of unusual and impulsive driving choices, suggestive of impairment.” Id., ¶56.

¶25 In light of this case law and Wilson’s failure to provide any authority
that supports his position, I conclude that Wilson’s challenge based on lack of
reasonable suspicion is without merit.

By the Court.—Judgment affirmed.

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

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