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Arrest – Probable Cause – OWI

County of Washington v. Michael D. Brazee, 2010AP687, District 2, 9/8/10

court of appeals decision (1-judge, not for publication); for Brazee: Walter Arthur Piel, Jr.; BiC; Resp.; Reply

Probable cause to arrest found notwithstanding absence of PBT, given erratic driving, admission of drinking 8-10 beers, and failed field sobriety test performance:

¶17    Brazee seems to be asserting that under Renz I and Renz II, because Vanderheiden did not request and obtain PBT results, Vanderheiden’s testimony falls short of providing the requisite higher quantum of evidence needed for probable cause to arrest. See Renz II, 231 Wis. 2d 293, 317. We do not agree and hold that the record reflects the requisite quantum of evidence needed to show the officer had probable cause to arrest.

¶18    Vanderheiden’s testimony not only indicates the relevance of the defendant’s field sobriety tests, it indicates the relevance of the totality of the circumstances before the officer at the time. Despite the fact that Vanderheiden did not use the word “fail” in his testimony, he clearly related that Brazee failed the tests and that this failure indicated Brazee was operating while under the influence of intoxicants. …

¶19      Vanderheiden’s testimony relates the significance of Brazee’s performance on the field sobriety tests and provides the requisite proof that he had probable cause to arrest Brazee. Vanderheiden testified that he was faced with a driver whom he observed swerving over solid lines, who almost crashed into his squad, whose breath smelled of intoxicants, who admitted to having consumed eight to ten beers before driving and whose performance on the field sobriety tests caused Vanderheiden to “believe[] the defendant to be intoxicated.” Thus, while a PBT would have added to the quantum of evidence, under these facts, it was not necessary to provide Vanderheiden with probable cause to arrest.

County ofJefferson v. Renz, (Renz I), 222 Wis. 2d 424, 588 N.W.2d 267 (Ct. App. 1998), reversed, County of Jefferson v. Renz, (Renz II), 231 Wis. 2d 293, 603 N.W.2d 541 (1999), figured prominently in Brazee’s argument. The court of appeals in Renz I held that absence of testimony about the significance of field test performance doomed the claim that the arrest was supported by probable cause to believe Renz drove under the influence. However, the supreme court reversed in Renz II, distinguishing between probable cause to request a PBT (which the officer possessed) and probable cause to arrest. Although Brazee’s reliance on Renz I isn’t entirely clear, he apparently argues that while that decision allows a PBT without express linkage to field sobriety testing, it doesn’t allow an arrest on such testing without explanation of the “significance” of the tests. The court as indicated above rejects the argument. More interesting, though, is the court’s footnoted treatment of the impact of the reversal, ¶14 n. 2:

Two months after the parties filed their appellate briefs, our supreme court held that “when the supreme court overrules a court of appeals decision, the court of appeals decision no longer possesses any precedential value, unless this court expressly states otherwise.” Blum v. 1st Auto & Cas. Ins. Co., 2010 WI 78, ¶42, No. 2008AP1324.  However, because the supreme court reversed Renz I and did not expressly overrule the case, Blum does not apply. See County of Jefferson v. Renz, (Renz II), 231 Wis. 2d 293, 295-96, 317, 603 N.W.2d 541 (1999).

In other words, the court of appeals appears to regard Renz I as still viable, because the supreme court only “reversed” without “expressly overrul(ing)” it. On the one hand, this might be a stilted view of Blum, drawing a distinction between “overruling” and “reversing” the decision that Blum itself did not make, at least not explicitly. Nor is such a distinction implicit in the court’s discussion, ¶¶49-52 (stressing the need for a bright-line rule, and reiterating that the “law-making” function is reserved to the supreme court, error-correcting to the court of appeals) — especially ¶49, which says in part: “Thus, when this court accepts review of a case, it does so to clarify and develop the law and provide guidance for lower courts. This purpose would not be served by requiring this court to address specifically every holding in a court of appeals decision to protect the coherence of this court’s holding.” But on the other hand, there is authority for the position taken in footnote 2, such as Sumner v. Gen. Motors Corp., 245 Mich. App. 653, 633 NW 2d 1 (2001):

… As our Supreme Court aptly pointed out, an important difference exists between overruling a case and reversing a case. … Stated differently, “overrule” is a term that “denotes what a superior court does to a precedent that it expressly decides should no longer be controlling law,” whereas “reverse” is a narrower term that “describes an appellate court’s change to the opposite result from that by the lower court in a given case.” A Dictionary of Modern Legal Usage (2d ed.), p. 632. Thus, to reverse is to change the result in the case at bar; to overrule is to declare that a rule of law no longer has precedential value. An appellate court must take care to recognize the distinction between the two actions. See, e.g., People v. Collins, 438 Mich. 8, 11, 475 N.W.2d 684 (1991) (Supreme Court overruling a rule of law from a previous Supreme Court case and reversing the decision of the Court of Appeals that was before the Supreme Court for review).

Perhaps it’s unwise to make too fine a point of this; our supreme court will some day get around to discussing the distinction between reversing and overruling the court of appeals. In the meanwhile, the important idea is that the distinction has been made, and there will be times it’s to your advantage to draw on it.

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