State v. Rodolfo Rogel Rodriguez

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.
August 14, 2024
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2024AP481-FT Cir. Ct. No. 2023TR6647

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

IN THE MATTER OF REFUSAL OF RODOLFO ROGEL RODRIGUEZ:

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

RODOLFO ROGEL RODRIGUEZ,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Kenosha County:
ANGELINA GABRIELE, Judge. Affirmed.
No. 2024AP481-FT

¶1 GROGAN, J.1 Rodolfo Rogel Rodriguez appeals from a judgment
entered after the circuit court found he improperly refused to submit to a chemical
test in violation of WIS. STAT. § 343.305(9) after he was arrested for driving while
under the influence. On appeal, he claims the circuit court erroneously exercised
its discretion2 when it excluded evidence during the refusal hearing. This court
affirms.

I. BACKGROUND

¶2 In September 2023, a City of Kenosha police officer initiated a
traffic stop of Rodriguez for suspected drunk driving.3 Two Kenosha County
deputy sheriffs, Deputy Sheriff Patrick Jones and Deputy Sheriff Museitif,4 arrived
at the scene shortly thereafter. When Jones made contact with the driver
(Rodriguez), he observed that Rodriguez’s eyes were red and glossy, that
Rodriguez smelled of alcohol, and that he had a case of beer in his backseat.

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(c) (2021-22).
This is an expedited appeal under WIS. STAT. RULE 809.17 (2021-22).

All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.
2
Counsel for both parties refer to the erroneous exercise of discretion standard as the
“abuse of discretion” standard. While the phrases are interchangeable, Wisconsin courts
abandoned the phrase “abuse of discretion” in favor of “erroneous exercise of discretion” more
than three decades ago. See City of Brookfield v. Milwaukee Metro. Sewerage Dist., 171
Wis. 2d 400, 423, 491 N.W.2d 484 (1992) (“Henceforth this court will use erroneous exercise of
discretion, in place of abuse of discretion. We are not changing the standard of review, just the
locution.”).
3
The Record identifies the officer only as “Deputy Bourdo.”
4
Deputy Museitif is identified in the Record by his last name only. For the purposes of
this opinion, this court will use the spelling of Deputy Museitif’s name as reflected in the
transcript from the refusal hearing rather than the spelling reflected in the parties’ respective
briefs (Musetif).

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No. 2024AP481-FT

Rodriguez agreed to perform field sobriety tests, all of which showed multiple
clues indicating impairment. Jones thereafter placed Rodriguez under arrest and
found a beer cap in Rodriguez’s pocket during the search incident to arrest, which
he explained supported his belief that Rodriguez had consumed alcohol. It is
undisputed that Jones read Rodriguez the Informing the Accused form (the Form)
verbatim and that Rodriguez refused to consent to a chemical test of his blood
after Jones read the Form.

¶3 After receiving notice that his license would be revoked for
improperly refusing a chemical test, Rodriguez requested a refusal hearing. Jones
was the only witness who testified at the February 2024 refusal hearing. He was
also the only law enforcement officer present at the hearing. During
cross-examination, Rodriguez’s counsel asked Jones if he remembered Rodriguez
having “questions about his ability to get his own test done” after being read the
Form. Jones answered that he did not recall. When the prosecutor immediately
thereafter objected on the basis that this line of questioning was not relevant,
Rodriguez’s counsel asserted that this information was relevant because if an
officer “provided additional misinformation directly after[]” reading the Form
verbatim, the refusal may be lawful under the framework set forth in County of
Ozaukee v. Quelle, 198 Wis. 2d 269, 280, 542 N.W.2d 196 (Ct. App. 1995),
abrogated on other grounds by Washburn County v. Smith, 2008 WI 23, ¶¶64,
72, 308 Wis. 2d 65, 746 N.W.2d 243.

¶4 The circuit court implicitly overruled the objection and told
Rodriguez’s counsel to “go ahead with your question.” Defense counsel then
confirmed with Jones that Jones did not “recall if [Rodriguez] had questions about
his ability to get his own test done[.]” When Jones responded that he did not
recall, defense counsel queried: “You asked Deputy Museitif to clarify what the

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No. 2024AP481-FT

independent testing option was, so would that be accurate and fair?” Jones
responded that he did not recall.

¶5 Defense counsel then played a portion of Jones’s body camera video,
which counsel believed showed Museitif providing Rodriguez with information
about independent testing. After playing the video, defense counsel asked Jones
whether he had been “able to hear Deputy Museitif talking in the background[,]”
and Jones responded “No.” Defense counsel then asked Jones if it would “be
helpful to hear Deputy Museitif’s body camera” video to better hear what Museitif
had purportedly said to Rodriguez.5 (Emphasis added.) The prosecutor objected,
stating that she did not “understand the relevance” for the purpose of the refusal
hearing, and the circuit court sustained the objection. When defense counsel
immediately thereafter indicated that he wanted “to quote Deputy Museitif, if
possible[,]” the court stated that it had “sustained the objection” and told defense
counsel to “move on.”

¶6 After the circuit court denied defense counsel’s request to quote
Museitif, counsel then asked Jones whether “Deputy Museitif provide[d]
extraneous information not included in the informing the accused[.]” The
prosecutor objected again, asserting both that the question asked for irrelevant
information and that it was “outside this officer[’]s [Jones’s] knowledge”—
particularly given that Jones had already confirmed he could not hear what
Museitif purportedly said when defense counsel played Jones’s own body camera
footage. The court sustained the objection.

5
It is not clear from the Record what Deputy Sheriff Museitif purportedly said that
Rodriguez believes supports his argument that his refusal was proper.

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No. 2024AP481-FT

¶7 During closing arguments, Rodriguez’s counsel told the circuit court
he had requested that all three law enforcement officers involved in the traffic stop
attend the refusal hearing.6 Defense counsel then asserted that because only Jones
had attended/testified, the court’s rulings—which ultimately prohibited him from
introducing evidence about Museitif providing Rodriguez with “misleading”
“extra information[,]”—denied him the opportunity to prove the refusal was
proper under Quelle. After closing arguments, the court ruled the police had
probable cause to believe Rodriguez had been driving under the influence,
Rodriguez had been “lawfully stopped and arrested,” he had been informed “in
compliance with [WIS. STAT. §] 343.305,” and Jones had read the Form “verbatim,
apparently twice.” It further determined Rodriguez did not have “good cause or
any reason … to refuse,” and, therefore, Rodriguez’s refusal was “unlawful or
improper.” Based on its decision, the court revoked Rodriguez’s driving
privileges for two years. Rodriguez appeals.

II. DISCUSSION

¶8 The sole issue raised on appeal is whether the circuit court
erroneously exercised its discretion when it excluded evidence regarding
Museitif’s purported statements made during the traffic stop and denied
Rodriguez’s request to play Museitif’s body camera video during Jones’s
testimony.

6
Defense counsel did not provide any other information about this request. He did not
indicate whether he had asked the prosecutor to ensure the officers’ presence or whether the
prosecutor had agreed to produce all three officers. There is also no evidence in the Record as to
whether Rodriguez himself made any effort to secure Museitif’s presence at the refusal hearing.

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No. 2024AP481-FT

¶9 This court reviews a circuit court’s decision to admit or exclude
evidence under an erroneous exercise of discretion standard. State v. Mayo, 2007
WI 78, ¶31, 301 Wis. 2d 642, 734 N.W.2d 115. This court will sustain a circuit
court’s decision as long as it “examined the relevant facts, applied a proper legal
standard, and reached a reasonable conclusion using a demonstrated rational
process.” Id. Application of the implied consent law to an undisputed set of facts
is a question of law this court reviews de novo. State v. Rydeski, 214 Wis. 2d 101,
106, 571 N.W.2d 417 (Ct. App. 1997).

¶10 “A refusal to submit to a chemical test for intoxication cannot result
in revocation of operating privileges unless the person has first been adequately
informed of his rights under the law.” Smith, 308 Wis. 2d 65, ¶51. Rodriguez
does not dispute that Jones accurately read the Form; rather, he argues that after
being read the Form, Museitif provided additional information he believes was
misleading, which he says therefore rendered his refusal proper under the
three-pronged inquiry set forth in Quelle.7

¶11 In Quelle, the court of appeals set forth the following three-pronged
test courts should use to determine whether the notice given to a driver complied
with Wisconsin’s implied consent law:

(1) Has the law enforcement officer not met, or exceeded
his or her duty under [WIS. STAT.] §§ 343.305(4) and
343.305(4m) to provide information to the accused
driver;

7
There are three questions that must be addressed at a refusal hearing: (1) “[w]hether
the officer had probable cause to believe the person was driving or operating a motor vehicle
while under the influence”; (2) “[w]hether the officer complied with” the notice requirements in
WIS. STAT. § 343.305(4), i.e., read the Form to the driver; and (3) whether the driver improperly
refused. Sec. 343.305(9)(a)5.a.-c. Because Rodriguez asserts only the evidentiary issue on
appeal, this court limits its analysis to that issue.

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No. 2024AP481-FT

(2) Is the lack or oversupply of information misleading;
and

(3) Has the failure to properly inform the driver affected
his or her ability to make the choice about chemical
testing?

Quelle, 198 Wis. 2d at 280; see also Smith, 308 Wis. 2d 65, ¶72 (applying the
Quelle three-prong inquiry to fact situations in which a “law enforcement officer
provided all the statutorily required information but then provided more
information in excess of his duty under § 343.305(4)”).

¶12 Here, it is undisputed that Jones read the Form to Rodriguez
verbatim; however, Rodriguez asserted that his refusal was lawful because
Museitif provided him with additional, misleading information that ultimately led
to his refusal.8 Broadly speaking, evidence as to whether Museitif provided
Rodriguez with additional, misleading information after Jones read the Form is
relevant to the question of whether or not Rodriguez’s refusal was lawful pursuant
to Quelle. See Quelle, 198 Wis. 2d at 280; see also WIS. STAT. § 904.01
(“‘Relevant evidence’ means evidence having any tendency to make the existence
of any fact that is of consequence to the determination of the action more probable
or less probable than it would be without the evidence.”). The circuit court
recognized this when it initially allowed defense counsel to question Jones about
whether Rodriguez had asked additional questions about “get[ting] his own test
done” after being read the Form over the State’s relevancy objection.

8
Based on the Record, it does not appear that Rodriguez ever asserted that either of the
other law enforcement officers involved in the stop—Jones or Bourdo—provided additional,
misleading information.

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No. 2024AP481-FT

¶13 Rodriguez asserts the circuit court erred, however, when it later
sustained the State’s relevancy and lack of personal knowledge objections after
defense counsel further questioned Jones about Museitif’s purported statements
and attempted to play Museitif’s body camera video for Jones during Jones’s
testimony after Jones had already testified that he did not recall whether Rodriguez
had asked questions about obtaining his own test or whether Museitif had provided
Rodriguez with any information regarding additional testing and that he could not
hear Museitif talking in the background when defense counsel played Jones’s own
body camera footage to refresh his memory. Rodriguez contends that this
excluded evidence about Museitif providing a misleading “oversupply of
information” that “affected his … ability to make the choice about chemical
testing” was relevant under Quelle. See Quelle, 198 Wis. 2d at 280.

¶14 This court agrees that, generally speaking, evidence as to whether
Rodriguez received additional, misleading information, which he says impacted
his ability to make a choice regarding chemical testing, is relevant at a refusal
hearing. See id. However, there are circumstances when relevant evidence is
nevertheless inadmissible. Specifically, WIS. STAT. § 904.02 provides that “[a]ll
relevant evidence is admissible, except as otherwise provided by the constitutions
of the United States and the state of Wisconsin, by statute, by these rules, or by
other rules adopted by the supreme court.” (Emphasis added.) As applicable here,
one circumstance in which relevant evidence is inadmissible occurs when the
witness lacks personal knowledge:

A witness may not testify to a matter unless evidence is
introduced sufficient to support a finding that the witness
has personal knowledge of the matter. Evidence to prove
personal knowledge may, but need not, consist of the
testimony of the witness.

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No. 2024AP481-FT

WIS. STAT. § 906.02. Here, the relevant evidence Rodriguez sought to introduce
was that Museitif had provided him with additional information that was
misleading. However, Rodriguez attempted to introduce this information through
Jones, who testified he did not have personal knowledge about whether Museitif
had provided Rodriguez with any additional information. The circuit court
therefore did not err in sustaining the State’s objection that this line of questioning
(including the attempt to introduce what was purportedly Museitif’s body camera
video through Jones’s testimony) was “outside [Jones’s] knowledge.”9

¶15 Had Museitif been present at the refusal hearing, he could have
testified about his own statements, and Museitif’s body camera footage likewise
could have been introduced through Museitif. But Museitif did not testify at the
refusal hearing, and Rodriguez did not present any admissible evidence as to
Museitif’s statements. Thus, while defense counsel is correct that whether
“additional, extra information … that was misleading” was provided to Rodriguez
at the time Jones read the Form was relevant for the purpose of determining
whether his refusal was proper under Quelle, Rodriguez failed to introduce
relevant admissible evidence that he received any such information.

¶16 Based on the foregoing, this court concludes the circuit court did not
erroneously exercise its discretion in excluding Museitif’s purported statements
and body camera footage when Rodriguez attempted to introduce them through
Jones’s testimony. Although the circuit court did not explicitly state the basis for

9
Not only was this outside of Jones’s personal knowledge, it was also inadmissible
hearsay. See WIS. STAT. § 908.01(3) (“‘Hearsay’ is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.”); see also WIS. STAT. §§ 908.02-908.05 (identifying hearsay exceptions).

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No. 2024AP481-FT

its decision, the Record reflects that the prosecutor objected on both the basis of
relevance and lack of personal knowledge and that the circuit court sustained the
objections. Presumably, the circuit court excluded the evidence based on the latter
as that is what the Record supports. See State v. Hurley, 2015 WI 35, ¶29, 361
Wis. 2d 529, 861 N.W.2d 174 (“‘Regardless of the extent of the trial court’s
reasoning, [a reviewing court] will uphold a discretionary decision if there are
facts in the record which would support the trial court’s decision had it fully
exercised its discretion.’” (alteration in original; citation omitted)).

By the Court.—Judgment affirmed.

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

10