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Eau Claire County v. Knuth12/30/1999
APPEAL from a judgment of the circuit court for Eau Claire County: GREGORY A. PETERSON, Judge. Affirmed.
Tamara Knuth appeals a judgment convicting her of operating a motor vehicle while under the influence of an intoxicant (OMVWI). She claims that the trial court erred in denying her motion to suppress evidence on the grounds that the arresting officer did not have probable cause to arrest her for OMVWI. We conclude, however, that Knuth forfeited the right to appeal the denial of her suppression motion when she entered a guilty plea to the charge of first-offense OMVWI under the Eau Claire County traffic ordinance. Accordingly, we affirm the judgment.
BACKGROUND
. An Eau Claire County sheriff's deputy stopped Knuth for speeding. The deputy detected a "slight" odor of intoxicants on or about Knuth's person, and also observed that her speech was "slightly slurred," her face was flushed and she avoided direct eye contact with him during conversation. Knuth admitted to the deputy that she had consumed alcohol prior to the stop, and she agreed to submit to field sobriety testing.
. The deputy then administered the "finger dexterity" test, during which Knuth did not recite a proper numbering sequence. On the "walk and turn" test, Knuth did not count her steps, did not place her feet in the proper "heel to toe" pattern as she was directed, and she made an improper turning maneuver. The deputy then administered a preliminary breath test (PBT), which yielded a result of .121. The deputy then arrested Knuth for OMVWI, first-offense, under the Eau Claire County traffic ordinance.
. Knuth moved to suppress all evidence gathered after the deputy stopped and arrested her, claiming that the deputy lacked probable cause to arrest her for OMVWI. After hearing the deputy's testimony, the trial court concluded that "the results of the field tests aren't overwhelming," but that those tests, together with the result of the PBT, established "more than enough probable cause to authorize the taking of Ms. Knuth into custody." The court thus denied Knuth's motion to suppress. A month later, Knuth entered a guilty plea and was convicted of OMVWI. She appeals the judgment of conviction.
ANALYSIS
. The County argues that Knuth forfeited her right to appeal the denial of her motion to suppress evidence when she pled guilty to first offense OMVWI in this civil forfeiture action. The County is correct. See County of Racine v. Smith, 122 Wis.2d 431, 434-37, 362 N.W.2d 439, 441-42 (Ct. App. 1984). We held in Smith that the "guilty plea waiver rule" applies to both civil and criminal cases, and that the statutory exception for criminal cases, § 971.31(10), Stats., does not apply in civil forfeiture actions, such as the one before us. See id. at 438, 362 N.W.2d at 442-43. We suggested in Smith that the legislature might wish to create an exception similar to that set forth in § 971.31(10) for civil forfeiture cases, see id. at 437-38, 362 N.W.2d at 442, but the legislature has not chosen to do so.
. Knuth responds, correctly, that the forfeiture rule, or waiver rule as it is most-often called, is a rule of administration, not a rule of jurisdiction. That is, this court may review a non-jurisdictional issue in spite of the entry of a guilty or no contest plea, although we are under no obligation to do so. See County of Ozaukee v. Quelle, 198 Wis.2d 269, 275-76, 542 N.W.2d 196, 198 (Ct. App. 1995). Knuth asserts that the same reasons which led us to not apply the forfeiture rule in Quelle, should also govern in this case. We disagree.
. We acknowledge that Knuth's guilty plea "avoid an unnecessary and protracted trial when
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