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COURT OF APPEALS
NOTICE
DECISION
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.
September 13, 2001
A party may file with the Supreme Court a
                                                                                                     Cornelia G. Clark                                                    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.
No.                                                                                                  01-1020-FT
                                                                                                     STATE OF WISCONSIN                                                   IN COURT OF APPEALS
DISTRICT IV
CITY OF STEVENS POINT,
PLAINTIFF-RESPONDENT,
V.
MICHAEL C. WIRTZ,
DEFENDANT-APPELLANT.
APPEAL from a judgment of the circuit court for Portage County:
THOMAS T. FLUGAUR, Judge.  Affirmed.
¶1                                                                                                   LUNDSTEN,  J.1    Michael C.  Wirtz  appeals  from a  jury verdict
finding him guilty under WIS. STAT. § 346.63(1)(a) for operating a motor vehicle
while under the influence of an intoxicant.   Wirtz contends on appeal that the trial
1  This is an expedited appeal under WIS. STAT. Rule 809.17 (1999-2000), decided by one
judge pursuant to WIS. STAT. § 752.31(2)(c).   All references to the Wisconsin Statutes are to the
1999-2000 version unless otherwise noted.




No.   01-1020-FT
court erred in refusing to grant his motion for a mistrial after the prosecutor for the
City of Stevens Point (City) elicited testimony from the arresting officer that Wirtz
refused  to  answer  questions  after  he  was  read  his  Miranda  rights.    For  the
following reasons, we affirm.
Background
¶2                                                                                        On August 25, 2000, Wirtz was arrested and subsequently charged
with operating a motor vehicle while under the influence of an intoxicant and with
a prohibited alcohol concentration, contrary to WIS. STAT. § 346.63(1)(a) and (b)
respectively.   A jury trial ensued.
¶3                                                                                        At the trial, Officer Ben Uitenbroek testified that he is employed by
the Stevens Point Police Department.   At the time of trial, Officer Uitenbroek had
been employed as a police officer for approximately two years, having previously
received  four  hundred  hours  of  law  enforcement  credit.    Officer  Uitenbroek
testified that in the course of duty he has seen well over a hundred incidents of
underage  drinking  and  has  been  involved  in  forty  to  fifty  operating  while
intoxicated cases.
¶4                                                                                        Officer   Uitenbroek   testified   that   on   August                   25,   2000,   at
approximately 1:00 a.m., he was driving on Stanley Street, a four-lane road, when
he observed a white Corvette convertible swerve between the two eastbound lanes.
Officer Uitenbroek followed the vehicle for several blocks, noting that it swerved
between the two eastbound lanes approximately four times.    The vehicle then
crossed the centerline, by at least a tire width, into the nearest westbound lane.
¶5                                                                                        At that point, Officer Uitenbroek activated his warning lights in an
attempt to stop the vehicle.   When it did not stop, the officer activated his siren as
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No.   01-1020-FT
well.   After the vehicle pulled over, Officer Uitenbroek approached the driver and
identified Wirtz by his driver’s license.   Officer Uitenbroek testified that Wirtz’s
breath smelled of alcohol and he spoke with slow, slurred speech.   Additionally,
Wirtz’s eyes were pink and bloodshot.
¶6                                                                                       Based on the odor of alcohol, Officer Uitenbroek asked Wirtz if he
had been drinking.   Wirtz responded that he had drunk two to three beers.   Officer
Uitenbroek asked Wirtz to exit the vehicle to perform several field sobriety tests.
When he exited the vehicle, Wirtz leaned on the door for balance.
¶7                                                                                       Officer Uitenbroek explained to the jury that field sobriety testing is
composed of divided-attention tests, and is utilized by officers to determine a
person’s ability to  operate  a  motor  vehicle.    Officer  Uitenbroek testified that
through his training he has learned that when people consume alcoholic beverages,
their coordination and their ability to perform divided-attention tests can become
impaired.
¶8                                                                                       Officer Uitenbroek indicated that when asked to recite the alphabet,
Wirtz paused midway through, missed several letters, and finished with a slur.
Officer Uitenbroek asked Wirtz to stand on one leg while raising the other six
inches off the ground and, while keeping his hands at his sides, count to thirty.
Wirtz held his foot only an inch from the ground and had to put it down after
counting to six.   He then began counting again while holding his arms out to the
side for balance.   Finally, Officer Uitenbroek asked Wirtz to walk nine steps heel-
to-toe in a straight line with his hands at his sides, pivot on one foot and walk nine
steps back heel-to-toe.   Wirtz stepped off the line, turned with both feet instead of
a pivot, and held his arms out to keep his balance.
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No.   01-1020-FT
¶9                                                                                         Based on his training, Officer Uitenbroek concluded that Wirtz was
driving under the influence of an intoxicant.    Wirtz was arrested at that time.
After the arrest, Officer Uitenbroek conducted a routine search of the vehicle.   In
the search, he recovered a wine bottle with some fluid still in it and two wine
glasses.   Wirtz was then transported to the police station, where he was asked to
submit to a chemical test of his breath.
¶10   At this point in the trial, the prosecutor asked Officer Uitenbroek
whether  Wirtz  was  given  a  Miranda  warning,  to  which  Officer  Uitenbroek
responded, “That is correct.”   The following colloquy took place:
Q.                                                                                         And otherwise, you intended to ask him a series of
                                                                                           questions; is that correct?
A.                                                                                         Yes.
Q.                                                                                         And did he agree to discuss this or at least answer
                                                                                           your questions, sir?
                                                                                           MR. SCHMIDT:   Objection.
                                                                                           MR. MOLEPSKE:
Q.                                                                                         Well, did he answer any of the questions?
A.                                                                                         No, he did not.
Wirtz made an oral motion for a mistrial, which was denied by the court.
¶11    Officer Patrick Stanislawski then took the stand and testified that on
the  night  in  question,  he  was  called  to  assist  Officer  Uitenbroek  as  backup.
Officer  Stanislawski  testified  that  he  is  certified  in  the  operation  of  the
Intoximeter.   As part of his duties, Officer Stanislawski assists other officers in
giving the Intoximeter test to individuals arrested for driving under the influence.
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No.   01-1020-FT
¶12    After explaining to the jury how the Intoximeter test is conducted,
Officer Stanislawski testified that he  used the Intoximeter to take a chemical
analysis of  Wirtz’s breath on two occasions.    The first test revealed a blood
alcohol concentration of .107 and the second test revealed a concentration of .103.
On cross-examination, Officer Stanislawski testified that the Intoximeter has a
.005 margin of error.
¶13    Wirtz then testified as an adverse witness.    Wirtz stated that he
awoke at 12:30 a.m. the preceding day and worked until 5:00 p.m.   Wirtz then
went to a supper club around 8:00 p.m. where he consumed two glasses of wine.
He  then  proceeded  to  Partner’s  Pub  where  he  consumed  three  beers.    Wirtz
admitted swerving between the two eastbound lanes on Stanley Street but testified
it was because his girlfriend, who was a passenger in the car, tried to kiss him
while he was driving.
¶14    The jury found Wirtz guilty under WIS. STAT.  § 346.63(1)(a) for
operating a motor vehicle while under the influence of an intoxicant and under
§ 346.63(1)(b)  for  operating  a  motor  vehicle  with  a  prohibited  alcohol
concentration.   The trial court dismissed the citation for operating a motor vehicle
with a prohibited alcohol concentration.   This appeal ensued.
Discussion
¶15    The sole issue we address on appeal is whether the trial court erred
when it refused to grant Wirtz’s motion for a mistrial.
¶16    Wirtz contends the trial court erred in refusing to grant his motion
for a mistrial.    He claims the prosecution improperly elicited testimony from
Officer Uitenbroek that Wirtz refused to answer questions after he was read his
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No.   01-1020-FT
Miranda rights.   Specifically, Wirtz suggests that the evidence of intoxication was
so weak that Officer Uitenbroek’s prejudicial testimony denied him a fair trial.
¶17    In  Doyle  v.  Ohio,  426  U.S.  610,  618  (1976),  the  United  States
Supreme  Court  held  that  it  is  fundamentally unfair  and  a  deprivation  of  due
process to implicitly assure an arrestee that his silence will not be used against him
and then use evidence of that silence to impeach an explanation subsequently
offered at trial.   The source of the unfairness is the implied promise contained in
the  Miranda  warnings  “that silence  will carry no  penalty.”    Id.    Subsequent
decisions by the Court have reaffirmed the critical importance of the implied
promise inherent in a Miranda warning that an arrestee’s silence will not be used
to impeach him at trial.   See, e.g., Wainwright v. Greenfield, 474 U.S. 284, 290-92
(1986); Fletcher v. Weir, 455 U.S. 603, 606 (1982); Anderson v. Charles, 447
U.S. 404, 407-08 (1980).
¶18    Similarly, the Wisconsin Supreme Court has held that prosecutorial
use of a defendant’s silence at trial in an attempt to infer guilt is “a direct violation
of the defendant’s right to remain silent guaranteed by the state constitution and
the fourteenth amendment of the federal constitution.”   Reichhoff v. State, 76 Wis.
2d 375, 378, 251 N.W.2d 470 (1977) (footnote omitted).   As in the case at bar, the
prosecutor in Reichhoff elicited testimony not from the defendant himself but
from two police officers that defendant had remained silent after his arrest.   Id. at
377 & nn.1-2.
¶19    We are cognizant of the fact that this case differs from those cited
above in that it is a civil forfeiture action and not a criminal case.   Accordingly, a
Miranda warning was not required.   See Village of Menomonee Falls v. Kunz,
126 Wis. 2d 143, 146-48, 376 N.W.2d 359 (Ct. App. 1985).   Nonetheless, the crux
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No.   01-1020-FT
of Doyle and its progeny was the fact that the arrestee’s silence was induced by the
Miranda warning, which implicitly promises an arrestee that such silence will not
be used against him later at trial.   See Doyle, 426 U.S. at 617 (“Silence in the wake
of  these  warnings  may be  nothing  more  than the  arrestee’s exercise  of  these
Miranda rights.”); Fletcher, 455 U.S. at 606 (“[W]e have consistently explained
Doyle as a case where the government had induced silence by implicitly assuring
the defendant that his silence would not be used against him.”).
¶20    Accordingly, for purposes of this appeal we will presume, without
deciding,  that  the  prosecution’s  questioning  of  Officer  Uitenbroek  regarding
Wirtz’s failure to answer questions after receiving the Miranda warning was a
violation of Wirtz’s right to due process.   Nevertheless, we conclude that the error
was harmless.
¶21    Evidentiary errors are subject to the harmless error analysis, even
when those errors implicate constitutional rights.   See McLemore v. State, 87 Wis.
2d 739, 757, 275 N.W.2d 692 (1979); Reichhoff, 76 Wis. 2d at 381.   In assessing
the effect of the type of constitutional error that occurred in this case, a reviewing
court must consider the impact of its repetition, the nature of the state's evidence,
and the nature of the defense.   McLemore, 87 Wis. 2d at 757.
¶22    In deciding the effect of a constitutional error, this court must ask
whether  “there is a  ‘reasonable possibility’ that the constitutional error  ‘might
have contributed to the conviction.’”   State v. Billings, 110 Wis. 2d 661, 668, 329
N.W.2d 192 (1983).   Alternatively stated, we must “‘be sure that the error did not
affect the result or had only a slight effect.’”   State v. Harris, 199 Wis. 2d 227,
255, 544 N.W.2d 545 (1996) (quoting State v. Dyess, 124 Wis. 2d 525, 540, 370
N.W.2d 222 (1985)).
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No.   01-1020-FT
¶23    In reversing the defendant’s conviction and remanding for a new
trial, the Reichhoff court specifically noted that the case before it was “not a case
where the prosecution casually asked one witness, on one occasion” whether the
defendant professed innocence at the time of arrest or whether he remained silent.
Reichhoff, 76 Wis. 2d at 381.   Rather, in that case, the prosecutor asked multiple
questions of several witnesses regarding defendant’s silence and commented about
it at length in his closing statement.  Id.
¶24    Such is not the case here.    The prosecutor elicited one statement
from Officer Uitenbroek, and no other witnesses, that Wirtz remained silent after
receiving his Miranda warning.   No further comments were made about Wirtz’s
silence either at that time or in the prosecutor’s closing argument.   Additionally, as
discussed  at  length  above,  the  City’s  evidence  against  Wirtz  was  substantial.
Officer  Uitenbroek  testified  that  Wirtz  smelled  of  alcohol,  his  eyes  were
bloodshot, and his speech was slurred.   Wirtz had to hold onto the door of his
vehicle to exit it, he failed three field sobriety tests, and a chemical breath test
revealed  a  blood  alcohol  concentration  of  0.1.2    A  search  of  Wirtz’s  vehicle
revealed an almost empty wine bottle with two glasses.   Finally, Wirtz himself
testified  that  he  drank  approximately  five  alcoholic  beverages  prior  to  his
encounter with Officer Uitenbroek.
¶25    In light of the quantum and nature of the other evidence presented at
trial indicative of Wirtz’s intoxication at the time of his arrest, we are convinced
2  See WIS. STAT. § 885.235(1g)(c), relating to chemical tests for intoxication (“The fact
that the analysis shows that the person had an alcohol concentration of 0.1 or more is prima facie
evidence that he or she was under the influence of an intoxicant and is prima facie evidence that
he or she had an alcohol concentration of 0.1 or more.”).
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No.   01-1020-FT
that the jury would have found Wirtz guilty of the violations charged even without
the prosecution’s impermissible question.   Accordingly, we affirm.
By the Court.—Judgment affirmed.
This opinion will not be published.   WIS. STAT. RULE 809.23(1)(b)4.
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