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Probable Cause to Arrest, OWI

Marquette County v. Carl G. Culver, 2011AP1523, District 4, 6/21/12

court of appeals decision (1-judge, ineligible for publication); case activity

The police had probable cause to arrest Culver, the driver in a one-car accident, given the smell of intoxicants on his breath and his “inconsistent answers” to questions about the accident:

¶13      We conclude, under the totality of the circumstances, that the facts known to Sergeant McCoy at the time he placed Culver under arrest, were such that a reasonable officer could conclude that Culver was operating a motor vehicle while under the influence of an intoxicant.  McCoy observed an odor of intoxicants emanating from Culver’s breath.  McCoy knew that Culver had failed to successfully navigate a turn, causing Culver’s vehicle to land in a nearby ditch upside down.  After smelling the odor of alcohol on Culver’s breath, McCoy asked Culver whether he had been drinking that evening, to which Culver answered in the negative.  After McCoy informed Culver that he could smell alcohol on Culver’s breath, Culver told McCoy that he in fact had been drinking.  Culver’s inconsistent answers are evidence of his consciousness of guilt.  The record also shows that Culver was confused about where his vehicle was located, as evidenced by Culver misinforming McCoy that the vehicle landed in a ditch north of County Highway A when in fact the vehicle was found south of County Highway A.

¶14      As we indicated, Culver cites to Swanson, 164 Wis. 2d 437, in support of the position that an officer must first perform field sobriety tests before deciding whether there is probable cause to arrest for OWI.  Id. at 453-54 n.6.  That reading of Swanson was rejected in Wille.  See Wille, 185 Wis. 2d at 684.

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