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Police had probable cause to arrest for OWI despite lapse between time of driving and time of police contact

State v. Dale F. Wendt, 2014AP174, District 2, 6/18/14 (1-judge; ineligible for publication); case activity

The information known to the deputy at the time he requested Wendt to take a blood test provided probable cause to believe Wendt had driven his vehicle while intoxicated earlier that evening, despite the deputy’s lack of information as to whether Wendt drank during the time that lapsed between his driving and his contact with the deputy.

Kalcik called police to report that Wendt, his neighbor, had driven over and angrily confronted him about being sold moldy hay. Kalcik also told the deputy he smelled alcohol on Wendt’s breath. After meeting with Kalcik the deputy drove to Wendt’s home, arriving about 75 minutes after the incident at Kalcik’s home. Wendt was unsteady on his feet, smelled like intoxicants, and had bloodshot and glassy eyes and slurred speech. Asked whether he had been drinking alcohol that day, Wendt said “Does that really matter[?]” He refused to do field sobriety tests, saying “It doesn’t really matter, I’m going to jail.” (¶¶2-4).

In addition to the usual signs of intoxication, “the dramatic belligerence that led to the deputy’s dispatch—Wendt being so angry about the moldy hay that he drove to the Kalcik’s home, threw hay on the ground, and reportedly threatened to kill Kalcik—was an indicator of intoxication.” (¶10, citing State v. Seibel, 163 Wis. 2d 164, 182, 471 N.W.2d 226 (1991) (“the defendant exhibited a belligerence and lack of contact with reality often associated with excessive drinking”)). And Wendt’s comment he was going to jail expressed consciousness of guilt, which also supports probable cause, State v. Wille, 185 Wis. 2d 673, 684, 518 N.W.2d 325 (Ct. App. 1994). (¶13). Taken together, the facts known to the officer provided probable cause, and Wendt’s refusal to submit to a blood test was unreasonable under § 343.305(9).

The standards for determining probable cause in refusal hearings are well established, so the analysis of the issue in this case can, and mostly does, follow a well-mapped route. But it also takes a misguided detour, which starts by characterizing Wendt’s “theory on appeal” as an argument that, “in between the time that he was at Kalcik’s and the time he was confronted by the officer, the State has not proven that he did not drink” and says that Wendt cites no authority for his claim that the state has to “prove the negative.” (¶12). It continues by criticizing Wendt for not offering evidence at the refusal hearing:

If Wendt wanted to, he could have taken the stand and testified that he had not been intoxicated when he was at Kalcik’s, but drank when he came home and then argued that this after-incident drinking was just as likely the cause of the high alcohol content in his blood. He would have thus asserted an affirmative defense to probable cause and it would have been the trial court’s obligation to assess his credibility. But he did not do that. As it stands, there is not even an ounce of proof that he even drank anything after he left Kalcik’s. Without that proof, we fail to understand how he can even begin to make the argument that he tenders to this court now. (¶12).

The opinion’s analysis here is incorrect. First, Wendt’s briefs don’t argue the state failed to prove a negative; instead, they point to what was known and not known by the deputy at the time of arrest and argue that under all the circumstances the deputy’s observations of Wendt should be given little, if any, weight in determining probable cause. Specifically: Over an hour passed between the incident at Kalcik’s and the deputy’s contact with Wendt; unlike the deputy, Kalcik noticed only an odor of alcohol and no other indicia of intoxication; and there was no information regarding whether Wendt consumed alcohol after leaving Kalcik’s house. Without knowing when Wendt was drinking, the deputy could only speculate about Wendt’s state of intoxication, if any, 75 minutes earlier, so his observations add little or nothing in support of probable cause. It may not be a knockdown argument, but it’s not, as the opinions says, an argument the state failed to “prove the negative.”

Second, criticizing Wendt for not testifying is wrong on several levels. At the time of arrest, the deputy didn’t know when Wendt had been drinking because he didn’t ask for (and Wendt didn’t volunteer) that information. That means Wendt’s testimony on this issue would have involved facts not known to the officer. But probable cause is based on what the officer knew at the time of the arrest, State v. Nordness, 128 Wis. 2d 15, 35, 381 N.W.2d 300 (1986), so Wendt’s testimony would have been irrelevant to the probable cause determination, id. at 37 n.6 (“Only evidence which speaks to the facts and circumstances available to the officer at the time of arrest is relevant to a determination of probable cause in a [refusal] hearing.”).

Finally, there’s no “affirmative defense” to probable cause. Even if Wendt had told the deputy he’d been drinking after he left Kalcik’s, probable cause can be found notwithstanding a possible innocent explanation, State v. Higginbotham, 162 Wis. 2d 978, 995, 471 N.W.2d 24 (1991), and the deputy would not have been required to rule out the exculpatory explanation or ignore the facts and reasonable inferences that support the inculpatory explanation, State v. Nieves, 2007 WI App 189, ¶14, 304 Wis. 2d 182, 783 N.W.2d 125. Similarly, Wendt’s testimony on the issue wouldn’t have mattered: When a court determines probable cause at a refusal hearing, it doesn’t weigh the state’s evidence against the defendant’s evidence; rather“[t]he trial court simply must ascertain the plausibility of a police officer’s account.” Id. at 36. Of course, that low threshold for probable cause at refusal hearings, along with the reasons the court gives for finding probable cause despite the lapse of time (¶13), means the result would probably have been the same even without the court’s mistaken criticisms of Wendt’s argument.

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