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Order revoking operating privileges for unlawful refusal of blood test upheld

State v. Jeffrey A. Jacobi, 2017AP1816, 5/30/18, District 1, (1-judge opinion, ineligible for publication); case activity (including briefs)

Based on facts specific to this case, the court of appeals held that the arresting officer had probable cause to believe Jacobi was intoxicated when he bumped into a car while driving his motorcycle. It also wagged its finger at appellate counsel for carelessness in compiling the record and for misrepresenting the record. It also noted his failure to file a reply brief.

Two minutes after an accident occurred on East Brady Street in Milwaukee an officer arrived and saw a motorcycle tipped over in the middle of the street with a single boot pinned beneath it. The driver of the car involved in the accident told that a man on a motorcycle had pumped her car and tipped over. She didn’t notice an odor of alcohol, staggering or other evidence of OWI. About 17 minutes later, Jacobi returned to the scene wearing only 1 boot. He had trouble balancing, red glassy eyes and the odor of alcohol on his breath. The officer asked Jacobi to perform 3 FSTs. He performed and failed only one and refused to do the others. The officer arrested him and obtained a search warrant for a blood draw.

The court of appeals held that the facts below, it was objectively reasonable for the officer to believe that Jacobi was OWI at the time of the accident:

  •  When the police arrived two minutes after the accident, they saw a motorcycle, registered to Jacobi, tipped over and abandoned in the street with one black leather boot trapped underneath it.
  • The motorcycle had rear-ended another car which remained at the scene.
  • Within seventeen to twenty-two minutes after the accident, Jacobi returned to the scene wearing one black leather boot which matched the boot trapped under the motorcycle, and with his other foot unshod.
  • Jacobi was intoxicated upon his return to the scene.
  • Jacobi’s eyes were bloodshot, his speech slurred, he had an odor of alcohol, he was unable to stay standing, he failed the HGN test, refused the two other field sobriety tests, and refused the request for blood draw.
  • Jacobi denied any drinking that evening despite his undisputed intoxication. Opinion ¶¶12-15.

The court of appeals expressed displeasure with Jacobi’s lawyer for failing to ensure that an important police report was part of the record. It assumed the asserted facts were true because the State conceded them. But it said: “We caution Jacobi’s counsel for his apparent carelessness in compiling the record and then falsely claiming the report was in the record. ” Opinion ¶4 n.3.

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