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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.
December 30, 1999
                                                                                                                                                              A  party  may  file  with  the  Supreme  Court  a
                                                                                                                                                              petition  to  review  an  adverse  decision  by  the
                                                                                           Marilyn L. Graves
                                                                                                                                                              Court of Appeals.   See § 808.10 and RULE 809.62,
                                                                                           Clerk, Court of Appeals
                                                                                                                                                              STATS.
                                                                                           of Wisconsin
No.                                                                                        99-1189-FT
STATE OF WISCONSIN                                                                         IN COURT OF APPEALS
                                                                                           DISTRICT III
EAU CLAIRE COUNTY,
PLAINTIFF-RESPONDENT,
V.
TAMARA J. KNUTH,
DEFENDANT-APPELLANT.
APPEAL  from  a  judgment  of  the  circuit  court  for  Eau Claire
County:   GREGORY A. PETERSON, Judge.   Affirmed.
¶1                                                                                         DEININGER, J.1    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
1  This appeal is decided by one judge pursuant to § 752.31(2)(c), STATS., and expedited
under RULE 809.17, STATS.




No. 99-1189-FT
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
¶2                                                                                     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.
¶3                                                                                     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.
¶4                                                                                     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
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motion to suppress.   A month later, Knuth entered a guilty plea and was convicted
of OMVWI.   She appeals the judgment of conviction.
ANALYSIS
¶5                                                                                          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.
¶6                                                                                          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 nonjurisdictional 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.
¶7                                                                                          We acknowledge that Knuth’s guilty plea “avoid[ed] an unnecessary
and protracted trial when the sole issue [was] a review of a suppression motion.”
Id. at 275, 542 N.W.2d at 198.   We also acknowledge that “this does not appear to
be a case where the defendant took a chance on a more lenient sentence,” and that
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Knuth’s offense, like Quelle’s, is a  “garden-variety first offender driving while
intoxicated case.”   Id. at 275-76, 542 N.W.2d at 198.   Unlike the circumstance in
Quelle, however, the issue Knuth wishes to raise in this appeal was not “squarely
presented before the trial court.”   Id. at 275, 542 N.W.2d at 198.
¶8                                                                                        The issue, as Knuth frames it in this appeal, is whether the arresting
officer had probable cause for her arrest before administering the PBT.   In making
her arguments, she relies heavily on our opinion in County of Jefferson v. Renz,
222 Wis.2d 424, 588 N.W.2d 267 (Ct. App. 1998), rev’d, No. 97-3512 (Wis. Dec.
22, 1999).   We decided Renz on October 15, 1998, almost six months prior to the
hearing on Knuth’s motion to suppress, which was conducted on March 26, 1999.
There is no indication in the record, however, that Knuth cited Renz to the trial
court, or that she argued in the trial court that the administration of the PBT was
improper because the deputy lacked probable cause to arrest her for OMVWI
before asking Knuth to submit to the PBT.
¶9                                                                                        Knuth did object at one point during the deputy’s testimony that
there was insufficient foundation to admit evidence of the PBT result.   The court
concluded that the County had presented a sufficient basis for the deputy to testify
regarding the administration of the PBT and its result.   However, at the conclusion
of the hearing, the sum total of Knuth’s argument was:                                    “We just don’t think there
was enough probable cause, Your Honor, to arrest.”   Had Knuth articulated to the
trial court the Renz-based argument she now presents to us, the trial court would
have had the opportunity to make explicit findings and conclusions regarding the
presence or absence of probable cause prior to the administration of the PBT.   As
the record stands, we do not have the benefit of a trial court decision on the issue
Knuth  would  have  us  decide.    In  short,  the  issue  of  the  allegedly  improper
administration of the PBT under this court’s holding in Renz was not “squarely
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presented before the trial court.”   Cf. State v. Rogers, 196 Wis.2d 817, 827, 539
N.W.2d  897,  901  (Ct. App.  1995)  (“We will not  ... blindside trial courts with
reversals based on theories which did not originate in their forum.”).
¶10    We  also  note  that  the  fourth  reason  mentioned  in  Quelle  for
reviewing a forfeited issue is not present in this case.   We said in Quelle that there
were no published cases “applying the pertinent language” from a recent supreme
court case, implying that a published opinion from our court would be helpful to
bench and bar.   See Quelle, 198 Wis.2d at 276, 542 N.W.2d at 198.   This is a one-
judge  appeal  under                                                                         § 752.31(c),  STATS.,  and  this  opinion  will  thus  not  be
published.   See RULE 809.23(1)(b)4, STATS.   Knuth has not requested that the case
be converted to a three-judge appeal so that a published opinion might result.   We
also  conclude  that  the  present  case  does  not  merit  our  own  request  for  its
conversion to a three-judge appeal.   Thus, the present appeal cannot yield a helpful
precedent, as we concluded was the case in Quelle.
¶11    In summary, Knuth forfeited her right to challenge the denial of her
suppression motion when she entered a plea of guilty to the charge of OMVWI
under  the  Eau Claire  traffic  ordinance,  a  civil  forfeiture  action.    We  are  not
convinced that reasons exist for us to forgo the forfeiture rule in this case.
¶12    Knuth asserts that it “would be unfortunate for her to now be denied
the opportunity to have the suppression motion decision reviewed, simply because
she expedited the process by avoiding an unnecessary trial.”    It may well be
“unfortunate for her,” as Knuth maintains, but an extension of the exception to the
guilty plea waiver rule under § 971.31(10), STATS., to civil forfeiture actions is a
matter for the legislature, not this court.   Moreover, we note that many appeals of
denials of suppression motions in civil forfeiture actions come to us without a full
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bench or jury trial having been conducted in the circuit court.   Rather, in cases
where the only potentially meritorious defense is based on the suppression of
evidence, the defendant will often proceed to a brief bench  “trial on stipulated
evidence,” such as police reports and chemical test results.   This procedure avoids
the entry of a guilty or no contest plea, while still minimizing litigation costs for
the defendant, the prosecuting entity and the circuit court.2
CONCLUSION
¶13    For  the  reasons  discussed  above,  we  affirm  the  judgment  of
conviction.
By the Court.—Judgement affirmed.
This opinion will not be published.  See RULE 809.23(1)(b)4, STATS.
2  Although we conclude that this case is governed by the guilty plea waiver rule, we note
that the supreme court has reversed our decision in County of Jefferson v. Renz, 222 Wis.2d 424,
588 N.W.2d 267 (Ct. App. 1998).   See County of Jefferson v. Renz, No. 97-3512 (Wis. Dec. 22,
1999).    Our review of the record convinces us that, had we reached the merits of Knuth’s
argument on appeal, the result would have been the same.   That is, the testimony of the deputy,
which we have summarized in the opinion, sufficiently establishes that he had “probable cause to
believe” that Knuth was OMVWI before requesting the PBT, as the supreme court has now
interpreted that phrase.   See Renz, No. 97-3512, slip op. at ¶44 (Wis. Dec. 22, 1999) (concluding
that “probable cause to believe” for purposes of requesting a PBT means “a level of proof greater
than the reasonable suspicion necessary to justify an investigative stop but less than that required
to establish probable cause for arrest.”).
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