Village of Lomira v. Phillip N. Benninghoff

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.
October 15, 2020
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. 2020AP31 Cir. Ct. No. 2019TR5045

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

VILLAGE OF LOMIRA,

PLAINTIFF-RESPONDENT,

V.

PHILLIP N. BENNINGHOFF,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Dodge County: BRIAN A. PFITZINGER, Judge. Affirmed.

¶1 BLANCHARD, J.1 A police officer arrested Phillip Benninghoff on
a charge of operating a vehicle while intoxicated (OWI) and then issued him a

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(c) (2017-18).
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
No. 2020AP31

notice of intent to revoke his operating privileges, pursuant to Wisconsin’s
“implied consent” law, based on his alleged refusal to submit to a chemical test.2
However, Benninghoff failed to file a request for a circuit court hearing on the
refusal within ten days after he received the notice, which is the deadline
established in WIS. STAT. § 343.305(9)(a)4. and (10)(a). Under the terms of
§ 343.305, the circuit court loses competency to entertain a refusal hearing request
after ten days. See Village of Elm Grove v. Brefka, 2013 WI 54, 348 Wis. 2d 282,
832 N.W.2d 121 (2013). Based on Benninghoff’s default on the allegation that he
refused to comply with § 343.305, the circuit court entered a judgment revoking
his operating privileges for one year and requiring that he complete an alcohol
assessment and equip his vehicle with an ignition interlock for one year.

¶2 Now purporting to raise constitutional challenges to WIS. STAT.
§ 343.305, Benninghoff argues that the circuit court was obligated to grant the
following motions that he filed in the circuit court, all after the ten-day period had
lapsed: a motion requesting a refusal hearing; a motion for relief from judgment;
and a motion to reconsider the court’s denial of the motion for relief from
judgment. For the following reasons, I affirm.

¶3 It is undisputed that the OWI arrest, alleged refusal, and the officer’s
delivery of the notice to Benninghoff occurred on August 31, 2019. However, it
was not until September 30, 2019, that Benninghoff requested a refusal hearing.

2
An operator of a motor vehicle in Wisconsin is “deemed to have given consent to one
or more tests of his or her breath, blood or urine, for the purpose of determining the presence or
quantity … of alcohol … when requested to do so by a law enforcement officer.” WIS. STAT.
§ 343.305(2). If an operator improperly refuses a request to take a test, a court shall revoke his or
her operating privilege for a year, or longer, depending on the operator’s record of past offenses
or refusals. Section 343.305(10).

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His motion stated in pertinent part that the court should schedule a hearing “due to
[the] complexity of the legal issues presented, the need for factual discovery and
confusion as to the timing of requesting a hearing per the language of the Notice
of Intent to Revoke and verbal instructions received by the defendant from the
arresting officer.”

¶4 I pause to note that this tardy request did not purport to raise any
particular issue that would not ordinarily be addressed at a refusal hearing. It also
did not hint at any issue of constitutional dimension. It merely implied that there
might be special factual circumstances affecting timing based on unspecified
information that the officer conveyed to Benninghoff. Also notable, it lacked any
reference to the language of WIS. STAT. § 343.305(10) or to Brefka, which as
noted interprets the statute to establish that a circuit court has no discretionary
authority to dismiss a refusal charge when a defendant fails to request a refusal
hearing within the statutory ten-day time period. Nor did Benninghoff refer to
State v. Nordness, 128 Wis. 2d 15, 28, 381 N.W.2d 300 (1986), which interprets
the statute to establish that the issues at a refusal hearing are limited to the
following: whether the officer had probable cause to believe that the person was
driving under the influence of alcohol; whether the officer complied with the
informational provisions of the implied consent law; whether the person refused to
permit the test; and whether the refusal to submit to the test was due to a physical
inability.

¶5 On the same day that Benninghoff filed this request for a hearing,
the court entered the refusal judgment.

¶6 On October 22, 2019, more than three weeks after the court entered
its judgment and 52 days after the officer’s delivery of the notice to Benninghoff,

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Benninghoff filed a motion for relief from judgment pursuant to WIS. STAT.
§ 806.07(a) (mistake), (c) (fraud), and (h) (catch-all), and “the Fifth and
Fourteenth Amendments to the Constitution of the United States.” 3 The basis for
the motion was an attached affidavit of Benninghoff’s counsel, which contained a
mixture of averments of fact and, improperly, assertions of legal propositions.
The following were the pertinent purported “averments”:

7. The issuance of a default judgment of conviction
in this action based upon the defendant’s refusal to submit
to an invasive blood draw test without a warrant, under the
circumstance of this case[,] violates the Fourth Amendment
… in that the implied consent statute, WIS. STAT.
§ 343.305, may govern the issuance of drivers licenses but
does not supplant or overrule the Fourth Amendment … as
set forth in the decision of the U.S. Supreme Court in
Mitchell v. Wisconsin, 139 S. Ct. 2525, 204 L. Ed. 2d
1040, 588 U.S. ___ (decided June 27, 2019) vacating and
reversing the Supreme Court of Wisconsin decision in State
v. Mitchell, [2018 WI 84,] 383 Wis. 2d 192, 914 N.W.2d
151.

8. Upon information and belief, the acts of the
defendant relied upon by the arresting officers as
supporting “probable cause” to issue all of the charges in
this case and the companion cases arising out of the
aforesaid acts attributed to the defendant, occurred in an
open grassy field and not upon any public or private road or
highway of the State of Wisconsin. Accordingly, all
charges against the defendant which require as a
jurisdictional predicate that they occur on a public road,
private road or highway of the State of Wisconsin are
jurisdictionally defective and any judgment issued in
reliance thereon is void.

9. The judgment of conviction entered herein is
also jurisdictionally defective as a violation of due process
of law as required by the Fifth and Fourteen Amendments

3
The motion for relief from judgment also referred to WIS. STAT. § 806.02 (“Default
judgment”) and the attached affidavit of Benninghoff’s counsel attempted to suggest a procedural
challenge based on the absence of a summons. But Benninghoff has abandoned on appeal any
argument to this effect.

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… in that the court has entered a judgment of conviction
herein without the opportunity to exercise the procedural
due process rights afforded all defendants in all civil
actions prior to the entry of the civil judgment.

10. In addition, the judgment of conviction in this
action[,] if allowed to stand, has material and significant
impact on the defendant’s future constitutional rights as a
penalty enhancer in the event of future charges arising out
of operating a motor vehicle under the influence of an
intoxicant. |

Missing from these “averments,” as with the earlier filed request for a refusal
hearing, are any references to the unambiguous statutory interpretations in Brefka
or Nordness. Specifically absent is an attempt to explain how any statement of the
U.S. Supreme Court in Mitchell is inconsistent with the statutory rules as
interpreted by our supreme court in Brefka and Nordness. Further, to the extent
that this was intended to be the constitutional challenge to WIS. STAT. § 343.305
that Benninghoff now suggests, it also lacked any acknowledgement of the heavy
burdens that a party takes on in challenging the constitutionality of a statute. See
State v. Dennis H., 2002 WI 104, ¶12, 255 Wis. 2d 359, 647 N.W.2d 851 (“‘Every
presumption must be indulged to sustain the law if at all possible and, wherever
doubt exists as to a legislative enactment’s constitutionality, it must be resolved in
favor of constitutionality.’” (quoted source omitted)).

¶7 On October 24, 2019, the circuit court dismissed the motion for
relief from judgment on the ground that the court lacked “competency to hear the
requested relief,” given the statutory rule explained in Brefka.

¶8 On November 12, 2019, Benninghoff moved the court to reconsider
its October 24 order, and to

grant defendant a “due process” hearing based upon the
Fourteenth Amendment … WIS. STAT. § 806.07(1)(d) and
(h) on the issues of (a) subject matter jurisdiction and (b)

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violation of the defendant’s Fourth Amendment right to
refuse to submit to a warrantless blood draw from his body
solely at the request of a police officer in the absence of
“exigent circumstances;” neither of which issues are
identified as within the issues which are enumerated [as]
those which can be adjudicated at a hearing requested
within 10 days per WIS. STAT. § 343.305(9)(a)5. and (10),
the “implied consent” statute. Accordingly, this motion is
not a request to extend the 10 day period to hold a hearing
on the limited issues specified in the “implied consent”
statutory scheme and therefore is not subject to the holding
in Elm Grove v. Brefka, 348 Wis. 2d 282 (2013); and is
governed by Mitchell v. Wisconsin, __ U.S. __, 139 S. Ct.
2525 (2019); Birchfield v. North Dakota, 579 U.S. ___,
136 S. Ct. 2160 (2016) and Missouri v. McNeely, 569 U.S.
141, 133, S. Ct. 1552 (2013).

(Alteration in original.) This reconsideration motion was accompanied by an
affidavit of Benninghoff, which was another mixture of factual averments and
assertions of legal propositions.

¶9 On January 2, 2020, Benninghoff filed a memorandum of law. Here,
Benninghoff purported to make two arguments. The first was that he had driven at
the pertinent time on an open field, not a public highway, and that he had

the “due process’ right to a hearing on subject matter
jurisdiction where the jurisdictional predicate underpinning
a police officer’s authority to invoke the “implied consent”
statute is limited to the public highways of the State of
Wisconsin and designated areas under WIS. STAT. § 346.61
per WIS. STAT. § 343.305(2).… The current wording of the
“Notice of Intent To Revoke” form specifically informs the
defendant that he or she cannot contest subject matter
jurisdiction under the “implied consent” statute as an issue
to be adjudicated at a statutory refusal hearing.

(Citation omitted.) Regarding this first reconsideration argument, I need not
address its merits, given the bases to affirm noted below. But I observe that
Benninghoff’s argument regarding “subject matter jurisdiction” appears to confuse
that concept with the related concepts of circuit court competency and its lack of

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power to enforce laws that are void due to unconstitutionality. See City of Eau
Claire v. Booth, 2016 WI 65, ¶¶14-19, 370 Wis. 2d 595, 882 N.W.2d 738. I
further note that Benninghoff’s motion for relief from judgment does not cite WIS.
STAT. § 806.07(1)(d) (“The judgment is void”) as a ground to vacate the judgment.
See Booth, 370 Wis. 2d 595, ¶18.

¶10 Benninghoff’s second reconsideration argument was that the
Supreme Court decision in Mitchell “reversed the Wisconsin Supreme Court[’s]
longstanding position that the ‘implied consent’ provisions of WIS. STAT.
§ 343.305(2) constitute a blanketly [sic] sufficient basis to satisfy the Fourth
Amendment,” and that Mitchell “rejected Wisconsin’s reliance upon its ‘implied
consent’ statute to authorize a non-consensual blood draw based simply upon the
request of a police officer, without a warrant, and in the absence of ‘exigent
circumstances.’” Further, Benninghoff asserted that in Birchfield the U.S.
Supreme Court “allowed warrantless breath testing under ‘implied consent’ and
‘incident to arrest’ theory; but specifically rejected application of that rationale to
allow blood tests.”

¶11 On January 3, 2020, the circuit court heard oral arguments, after
which it denied the motion to reconsider. The court noted that, in order for
Benninghoff to prevail on a motion to reconsider, he needed to present newly
discovered evidence or show that the court made a manifest error of law or fact,
citing Koepsell’s Olde Popcorn Wagons, Inc. v. Koepsell’s Festival Popcorn
Wagons, Ltd., 2004 WI App 129, ¶44, 275 Wis. 2d 397, 685 N.W.2d 853. The
court stated in pertinent part that Benninghoff

has certainly not demonstrated any newly discovered facts.
It appears that the only basis for a motion to reconsider
would be a showing that the Court made a manifest error of
law or fact….

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The decisions that were cited to the Court and
briefed do not support a manifest error in law or fact. Quite
the contrary, the primary decision that the defendant cites is
Mitchell v. Wisconsin, 139 S. Ct. 2525 (2019), which the
defendant somehow or another believes supports his
position. The decision in Mitchell far from supports the
defendant’s position. The facts in Mitchell and the
circumstances addressed by Mitchell are significantly
different than the circumstance presented in the present
case…. A review of the balance of the cases cited by the
defendant do not support his position. A reading of the
cases decided subsequent to Brefka do not indicate any
manifest error in law by this Court.

¶12 On appeal, Benninghoff purports to raise a facial constitutional
challenge to WIS. STAT. § 343.305, essentially on the grounds that (1) the Supreme
Court in Mitchell and Birchfield cast doubt on the lawfulness of state implied-
consent laws that impose civil penalties on drivers who refuse to submit to a
request for a blood draw; and (2) Wisconsin’s statutory rule limiting the scope of
issues at a refusal hearing, as interpreted in Nordness in 1986, is fatally
inconsistent with discussion by the Supreme Court in South Dakota v. Neville,
459 U.S. 553 (1983). He also purports to make an as applied constitutional
challenge, based in large part on the proposition that he was somehow prevented
from presenting an “open field” defense.

¶13 There are many problems with this appeal, including a failure to
develop and support clear facial and as applied constitutional challenges to a
statute. Neither side addresses the burdens that Benninghoff faces in challenging
the constitutionality of a statute. See Dennis H., 255 Wis. 2d 359, ¶12. In any
case, however, the following are three sufficient reasons to affirm.

¶14 First, as the Village notes, all of Benninghoff’s “open fields”
defense-based arguments could go nowhere. This is because, regardless of the
merits of this potential defense, he forfeited the chance to offer it by failing to

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timely request a refusal hearing. See State v. Anagnos, 2012 WI 64, ¶¶4, 27, 341
Wis. 2d 576, 815 N.W.2d 675 (under WIS. STAT. § 343.305(9)(a)5.a., a defendant
at a refusal hearing may contest whether he or she was lawfully placed under
arrest; “the circuit court may entertain an argument that the arrest was unlawful
because the traffic stop that preceded it was not justified by either probable cause
or reasonable suspicion.”). Benninghoff fails to provide a direct, coherent reply to
this argument by the Village. In any case, however, whatever argument he intends
to make must fail for at least the reason that he failed to pursue his opportunity to
present his “open field” defense in the ordinary course at a refusal hearing
triggered by a request made within the ten-day period. That is, at a timely
requested hearing, Benninghoff could have relied on the alleged lack of evidence
that he operated anywhere but on an open field, and from this argued that the
officer lacked probable cause to arrest him for OWI and consequently lacked
authority to request a blood sample under § 343.305. It is not clear precisely what
percentage of Benninghoff’s arguments this defeats, given the lack of clarity in his
briefing, but it defeats all those based an alleged “open field” defense.

¶15 Turning to my second major point, as best I can discern from
Benninghoff’s thinly developed arguments on appeal, the court of appeals, in an
opinion issued well before Benninghoff filed his reply brief on appeal,
significantly undermines the balance of the arguments that he now attempts to
make regarding U.S. Supreme Court precedent. See State v. Levanduski, 2020 WI
App 53, __ Wis. 2d __, 948 N.W.2d 411.4 Benninghoff’s entire set of

4
A petition for review is currently pending in our supreme court, but I believe that the
pertinent discussion in State v. Levanduski, 2020 WI App 53, __Wis. 2d __, 948 N.W.2d 411, is
unlikely to be modified or reversed by our supreme court, even if the petition is granted.

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constitutional arguments purport to rest on U.S. Supreme Court precedent that the
court of appeals has characterized differently than Benninghoff does. This
includes the court of appeal’s discussion of Neville (at ¶¶7-8, 12-13 of
Levanduski) and Birchfield (at ¶¶11-14 of Levanduski), all of which undermines
Benninghoff’s argument that WIS. STAT. § 343.305 “impinge[s] upon the
accused’s Fourth and Fourteenth Amendment rights” and is therefore “void and
unenforceable.” The specific context in Levanduski differs from the context here.
Nevertheless, the court explained that the Neville opinion established that “‘a
person suspected of drunk driving has no constitutional right to refuse to take a
blood-alcohol test,’” and that the Birchfield opinion “reiterated the lawfulness of
implied-consent laws that impose ‘civil penalties and evidentiary consequences’
on motorists who refuse to submit to a blood draw.” Levanduski, 948 N.W 2d
411, ¶¶7, 12. At a minimum, Benninghoff fails to show how these summaries of
the U.S. Supreme Court cases that serve as the sole basis of his arguments could
be consistent with the positions that he now takes. To cite only one of many
missing pieces to the puzzle, Benninghoff fails even to attempt to explain why the
circuit court here did not lose competency on the tenth day even if the related
statutory rule, explained in Nordness, against raising issues beyond the limited
refusal hearing issues is itself unconstitutional. In short, if there is a meritorious
argument to be made on these potentially complex topics, Benninghoff has not
begun to make it.

¶16 Third, the circuit court had a reasonable basis to reject the motion for
a refusal hearing on the vague grounds offered and Benninghoff failed to provide a
reasonable basis to grant relief from judgment, initially or on reconsideration,
based on the undeveloped grounds offered. The circuit court displayed patience in
entertaining these evolving assertions and partial arguments, despite the lack of

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clarity and substance. At least as to the initial request for a hearing, it is highly
significant that our supreme court explained in Brefka that the legislature has
established a firm ten-day limit to circuit court competency, and the circuit court
appropriately treated this rule as its starting point for analysis.

¶17 Expanding on this last point, as the background summary above
reveals, Benninghoff failed time and again to present developed and potentially
meritorious arguments to the circuit court, both regarding circuit court competency
and constitutional law—indeed, even the very notion that he was purporting to
raise any constitutional challenge. First, he waited until September 30 to request a
refusal hearing, failing even to acknowledge the rule of Brefka and failing to
articulate an argument that vaguely resembled the arguments he now makes on
appeal. Second, he waited more than three weeks to file a motion for relief from
judgment, and did not attempt to actually show mistake, fraud, or another
sufficient reason for relief. This motion did not refer to, much less present a
developed argument regarding, Birchfield, even though he now points to
Birchfield as a linchpin for his argument. Third, he waited more than two weeks
to file a motion to reconsider denial of his motion for relief from judgment, for the
first time making a reference to Birchfield, but even then in an undeveloped
manner. Benninghoff makes no serious effort now to explain why the circuit court
was obligated, under any correct legal standard, to grant him relief from judgment
based on the content of his October 22 submission, nor obligated to grant his
motion for reconsideration based on the content of his November 12 submission.
After failing to provide the circuit court with a purported reason why it might
retain competency beyond the ten-day period, Benninghoff changed his tack to
apparently assert that, as a matter of constitutional law, the circuit court lacked
“subject matter jurisdiction” (apparently meaning competency) to revoke his

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license under WIS. STAT. § 343.305. Only very late in the proceedings did he
suggest to the circuit court the position that the statutory rule narrowing the scope
of issues that may be raised at refusal hearings is unconstitutional under U.S.
Supreme Court precedent, and even now he fails to support such an argument.

By the Court.—Judgment and order affirmed.

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

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