Preview:

COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION
Case No.:                                                               98-2055
Complete Title
of Case:
VILLAGE OF THIENSVILLE,
PLAINTIFF-RESPONDENT,
V.
JON R. OLSEN,
DEFENDANT-APPELLANT.
Opinion Filed:                                                          November 25, 1998
Submitted on Briefs:                                                    November 2, 1998
JUDGES:                                                                 Brown, Nettesheim and Anderson, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYS:                                                              On behalf of the defendant-appellant, the cause was submitted on the
briefs of Eric E. Eberhardt of Huiras, Farrell & Antoine of Port
Washington.
Respondent
ATTORNEYS:                                                              On behalf of the plaintiff-respondent, the cause was submitted on the brief
of Michael P. Herbrand of Houseman, Feind, Gallo & Malloy of Grafton.




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.
November 25, 1998
A party may file with the Supreme Court a
                                                                                        Marilyn L. Graves                                                             petition  to  review  an  adverse  decision  by  the
                                                                                        Clerk, Court of Appeals                                                       Court of Appeals.  See § 808.10 and RULE 809.62,
                                                                                        of Wisconsin                                                                  STATS.
No.                                                                                     98-2055
                                                                                        STATE OF WISCONSIN                                                            IN COURT OF APPEALS
                                                                                        VILLAGE OF THIENSVILLE,
                                                                                        PLAINTIFF-RESPONDENT,
                                                                                        V.
JON R. OLSEN,
DEFENDANT-APPELLANT.
APPEAL from a judgment of the circuit court for Ozaukee County:
WALTER J. SWIETLIK, Judge.   Affirmed.
Before Brown, Nettesheim and Anderson, JJ.
BROWN, J.                                                                               Section 805.17(3),  STATS.,  states  in  pertinent
part:                                                                                   “Upon its own motion ... the court may amend its findings or conclusions or
make  additional  findings  or  conclusions  and  may  amend  the  judgment
accordingly.”   Jon R. Olsen, the defendant in this operating while intoxicated case,
maintains that before the trial court can exercise its authority to reconsider on its




No. 98-2055
own, either the parties or the court must have previously considered the legal issue
upon which the court now wishes to comment.   We have two responses.   First,
there are no prerequisites established by the statute except perhaps timeliness.
Second, even if there were, the subject matter of the reconsideration here was
factual in nature, not legal.   The court was simply changing its mind about what it
believed to be the important factual issue to be decided.   This the court has a right
to do under the statute.   We affirm.
The trial to the court took place on March 27, 1998.   The Village of
Thiensville’s case against Olsen was largely mine-run.   The Village police arrived
after a call from a citizen.   They found Olsen’s car in a drift of snow, resting
partially down an incline.   The arresting officer detected the odor of alcohol on
Olsen’s breath and observed that he was “slow in responding.”   Olsen performed
field sobriety tests and, in the officer’s opinion, he failed.   Olsen was arrested and
taken to the police station.   There, an intoxilyzer test was performed and a breath
alcohol  reading  of  0.25%  was  registered.    The  citizen  who  called  the  police
testified that Olsen had an odor of alcohol on his breath five minutes after the car
was disabled.  Also, the officer found an empty half-pint bottle of vodka in the car.
Olsen’s defense was that he was not intoxicated when he drove the
car.   Rather, he was watching the Packer game at his sister’s apartment where he
had consumed three or four cans of beer.   He decided to take a break and go to a
liquor store to purchase cigarettes and, while there, also bought one-half pint of
vodka to take back.   On the way back, he took a short detour to observe a house
for sale in which he had an interest.   He got stuck while trying to turn around.   He
testified that it was not until after trying to get his car out of the drift that he
decided to drink the entire one-half pint of vodka because his afternoon was “kind
of ruined.”   While not stated to the trial court, Olsen’s claim apparently was that
2




No. 98-2055
the high test score was due to the vodka and that the vodka was consumed when
he was no longer operating his vehicle.
Immediately after the parties had rested, the trial court announced
that “the only issue in the case is when did he drink the bottle of vodka.”   The trial
court said that it had no problem with the Village’s case-in-chief, that the arresting
officer believed Olsen to be under the influence and the breath test confirmed it.
However, the trial court observed that the citizen who called the police did not
testify that Olsen was under the influence of alcohol.   The court believed Olsen’s
story that he drank the vodka sometime after the car went off the road.    The
Village  objected  to  the  trial  court’s  analysis,  arguing  that  Olsen’s  story  was
incredible.    But the  court was convinced that because  Olsen testified that he
purchased  the  vodka  shortly  before  the  car  was  disabled,  and  because  this
evidence was not contradicted, Olsen’s testimony was credible.   The trial court
found Olsen not guilty.
Just days later, the trial court, on its own motion, set the matter on
for a hearing to reconsider its judgment.1   At the hearing on the motion, the court
wasted no time in explaining why it moved to reconsider on its own motion.   To
paraphrase  the  court,  it  held  that  it  had  not  given  sufficient  weight  to  the
presumption  established  by  the  breath  test.     This  presumption  holds                         “not
withstanding the fact that he may have consumed an alcoholic beverage in the
interim.”   The trial court concluded that the “burden of proof then shifts to the
defendant to establish that the consumption of the one-half pint of Vodka would
1   The appellate record does not show the exact date that the trial court notified the parties
of its intent to reconsider.   Olsen’s brief states that the motion was “just days later” and the
Village does not dispute this.   Because the timeliness of the motion is not at issue on appeal, we
will assume that the factual assertion stated in Olsen’s brief is true.
3




No. 98-2055
have materially affected the breath test to the extent that it would put it over the
legal limit.”
Following the trial court’s holding, it allowed colloquy regarding the
decision.   We read Olsen’s objection to have argued the following:   The issue at
trial was  “when did Olsen drink the vodka” and not  “assuming the vodka was
consumed after the car was disabled, what effect would the vodka have on the
breath test.”   Thus, Olsen contended that the trial court was changing the issue
which was the subject of debate at the trial.   Olsen complained that the court was,
in reality, changing the rules by now requiring him to obtain an expert to show the
effect of the vodka upon the breath test results.
The   trial   court   responded   by   reiterating   its   reason   for
reconsideration—that it had not accorded to the Village the proper weight of the
statutory presumption at the time of trial.   Once accorded, Olsen’s defense was
insufficient to rebut the presumption.   The trial court changed its finding to guilty,
assessed a forfeiture and Olsen appeals.
Construction  of  a  statute  is  a  question  of  law.    See  O’Neill  v.
Buchanan, 186 Wis.2d  229, 233, 519 N.W.2d 750, 752 (Ct. App.  1994).   We
review statutory construction issues de novo, without deference to the trial court.
See id.
Olsen’s theory is that reconsideration assumes a question which has
been  previously  considered.    He  reads  O’Neill  to  so  hold  and  contends  that
O’Neill   governs this case.   Olsen then asserts that neither prior to nor during the
course of  the  trial did either  party argue  or present testimony relating to the
statutory presumptions of intoxication or the respective burdens of proof.   Thus,
the trial court did not have the occasion to consider such arguments.
4




No. 98-2055
O’Neill  does  not  support  Olsen’s  position.     In  that  case,  the
appellant, an interested party to a will construction, did not appear at the hearing
construing the will.   He later moved for relief under § 806.07, STATS., claiming
excusable  neglect.    Alternatively,  he  asked  for  reconsideration  of  the  order
construing the will.   The trial court denied both motions and we affirmed.   In
doing so, we held that  “[t]his course of events is akin to default by a party.”
O’Neill, 186 Wis.2d at 234, 519 N.W.2d at 752.   We opined that “[i]f a party has
not  yet appeared  and  presented arguments  in the  litigation,  the  court has not
considered that party’s arguments in the first instance.”   Id.   Although we did
observe  how  “reconsideration  assumes  that  the  question  has  previously  been
considered,” this must be read in the context of the discussion concerning the
effect of a default upon a person’s standing to move to reconsider.   See id.   The
statement certainly cannot be read as a blanket holding construing § 805.17(3),
STATS., as requiring a condition precedent.    Moreover, Olsen’s reliance upon
O’Neill completely ignores footnote 3 of our opinion which stated, “We note that
our opinion does not address the authority of the court to reconsider a decision
upon its own motion.”   See O’Neill, 186 Wis.2d at 235 n.3, 519 N.W.2d at 753.
O’Neill does not help Olsen.
We consider § 805.17(3), STATS., to be unambiguous.   The statute
plainly  allows  a  court                                                                   “[u]pon  its  own  motion”  to                                         “amend  its  findings  or
conclusions.”   See § 805.17(3) (emphasis added).   There is no condition precedent
listed except perhaps that the court must act within twenty days of its original
decision.                                                                                   There  is  no  requirement,  therefore,  that  the  reason  for  the
reconsideration must have been a subject of discussion, testimony or debate at the
original trial or hearing.   Good reason exists for such a rule.   A judge’s job is to do
justice.   A judge endeavors to come to the right result.   The law gives a judge the
5




No. 98-2055
right to change his or her mind, so long as it is done in a timely fashion and the
parties are given a fair chance to be heard.   As was the case here, the statute also
allows  a  judge  to  engage  in  critical  analytical  thinking  that  was  not  at  all
considered by the court in the first instance.   A judge should not have to live with
the consequences of a decision that he or she, upon reflection, believes to be
wrong.   We reject Olsen’s argument for a contrary construction.
Moreover, Olsen misconstrues what the trial court did in this case.
The  trial  court  did  not  surprise  Olsen  after  judgment.    The  presumption  of
intoxication was present at the trial.   In fact, it was stipulated to by the parties.   It
never went away.   After testimony closed and before either of the parties had an
opportunity to make arguments to the court, the court announced that the issue, as
the court saw it, was “when did [Olsen] drink the bottle of vodka.”   This was not
an issue brought to the court’s attention by the parties.   It was an issue seized upon
by the court and the court alone.   After settling on the question, the court answered
it.   Olsen drank the vodka after operating the vehicle.   At that time, the court was
obviously convinced that answering the question it had decided was the key to the
case.   So, the trial court found Olsen not guilty.
But upon reflection, the trial court decided that it had asked the
wrong question or at least had not asked enough of the right question.   The issue
was not simply whether Olsen drank the vodka after operating the vehicle, but also
whether  an  affirmative  factual  finding  would  be  sufficient  to  overcome  the
presumption  created  by  the                                                                 .25  reading.     What  the  court  was  doing  was
reconsidering its earlier belief that the question should be solely whether Olsen
drank the vodka after operating the vehicle.   The trial court changed the question
that it had sua sponte asked initially in favor of a new sua sponte question.    After
the court was satisfied that it had now framed the question correctly, it found that
6




No. 98-2055
Olsen had not produced the quantum of evidence sufficient to convince it that the
presumption of intoxication had been rebutted.
Olsen claims that the trial court’s decision effectively forces persons
in  Olsen’s  position  to  prove  not  only  that  the  alcohol  was  consumed  after
operation of the vehicle ceased, but also that the postoperation alcohol was the
reason for the high breath test result.   This, he claims, is an error of law because
the law does not require, as a condition precedent to rebutting the presumption of
intoxication,  the  production  of  an  expert  to  prove  the  effect  of  postoperation
alcohol on a chemical test for intoxication     In Olsen’s words, a particular “type”
of evidence is not a necessary prerequisite to overcoming the presumption of
intoxication.
But a close look at the trial court’s decision shows that it did not
change its mind based on a belief that, as a matter of law, Olsen needed an expert
to rebut the presumption of intoxication.   Rather, the trial court simply decided
that the question the court itself had framed at the conclusion of evidence was
insufficient.   In sum, the trial court’s decision to reconsider was fact intensive, not
law intensive.   Perhaps had the testimony been that Olsen had not one drop of
alcohol while watching the Packers, and had there been no testimony of alcohol on
Olsen’s breath five minutes after he was seen driving his car, the trial court may
never have felt the need to reconsider its original decision.   In that case, had the
trial court answered the original question the same way that it did in this case, the
obvious inference would then have been that, of course, the test reading was solely
the result of the vodka.   But those were not the facts.   The trial court changed the
question because the facts in the case compelled it.   That finding is affirmed.
By the Court.—Judgment affirmed.
7




No. 98-2055
8

Download 14276.pdf

Wisconsin Law