The court of appeals correctly affirmed the circuit court’s decision to suppress OWI evidence in this case, where an officer admitted that the New Glarus Police Department’s “protocol” was to administer PBTs on motorists whether they had probable cause for OWI or not. But court of appeals did so by taking a heavy-handed approach to waiver, a rule of administration that appellate courts have the discretion to apply or not.
An officer stopped Large for a defective tail lamp on her car. After the officer noticed an open can of beer, Large admitted to drinking earlier in the evening and to driving without a license. The officer returned to his squad car and learned that Large’s license had been revoked and her car should have had an interlock device. But he did not realize that she was subjected to a .02, rather than a .08, PAC.
The officer administered field sobriety tests, and Large passed them. Large argued that the stop should have ended then and there. The officer should have immediately handed her the citations for her traffic/interlock device violations and let her go. But, of course, that did not happen.
Pursuant to “department protocol,” the officer administered a PBT even though he lacked probable cause to do so. He then returned to his squad car, learned that Large had a .02 PAC, arrested her for OWI, and had her blood drawn. The results showed a .042 blood alcohol content.
Large moved to suppress the PBT results on the grounds that the officer unlawfully extended the stop to conduct a PBT without reasonable suspicion or probable cause. The circuit court agreed. It was also deeply troubled by the police department’s “protocol” of routinely administering PBT’s without probable cause and by the fact that the veteran officer in this case had no clue that this “protocol” was unlawful. It suppressed the PBT and all subsequently obtained evidence and sua sponte dismissed the State’s case.
On appeal, the parties agreed that the circuit court lacked authority to dismiss the State’s case. The State’s sole issue–at least in its initial brief–was whether the circuit court erred by finding the officer lacked probable cause to believe the defendant was operating with a PAC over .02 and thus in suppressing the evidence
In her response brief, Large argued that the circuit court granted suppression partly because the officer lacked probable cause to extend the stop to conduct the PBT. The initial brief (filed by a DA) did not attempt to refute this holding. Large also defended the circuit court’s decision to suppress all evidence subsequent to the PBT as fruit of the poisonous tree under Wong Sun v. United States, 371 U.S. 471 (1963).
The State attempted to address these matters in its reply brief but the court of appeals refused to consider “arguments advanced for the first time” in a reply brief under A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 491, 492, 588 N.W.2d 285 (Ct. App. 1998). Opinion, ¶23. It held that by failing to address the circuit court’s ruling on the extension of the stop and suppression of all evidence following the PBT in her initial brief, the State abandoned the issues. Opinion, ¶24.
In A.O. Smith, the court of appeals ordered oral argument, and the appellant presented an issue that it had made in the circuit court but did not brief on appeal. The new issue surprised both the respondent and the court of appeals. The court noted a long line of cases holding that an appellant abandons issues that it presented in the circuit court but does not raise in its initial appellate brief. It analogized an issue raised for the first time at oral argument to an issue first raised in a reply brief, which appellate courts have the discretion to ignore. It underscored that this waiver rule is only one of administration. A.O. Smith, 222 Wis. 2d at 491-493.
Note that the waiver rule applies to new “issues.” It does not apply to new “arguments” in support of an issue. State v. Weber, 164 Wis. 2d 788, 791, 476 N.W.2d 867 (1991). Also, this rule does not apply to a respondent who may, in its response brief, raise any basis for affirming the circuit court’s decision. Ahrens v. Town of Fulton, 2000 WI App 268, ¶9 n.3, 240 Wis. 2d 124, 621 N.W.2d 643. Logically, if the respondent can raise a new basis for affirming, the appellant must be permitted to address it in the reply brief.