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Probable cause for OWI arrest; video of refusal sufficiently authenticated

State v. Steven N. Jackson, 2015AP2682, 9/22/16, District 4 (1-judge decision; ineligible for publication); case activity (including briefs)

Steven Jackson was arrested for OWI and also charged with a refusal to submit to a blood test. On appeal of the refusal, he first argues that the officers lacked probable cause to arrest him.

The court of appeals disagrees, noting the following facts:

[T]here were two accidents involving Jackson’s truck with footprints leading away from the driver’s side of the vehicle at the site of the second accident, and Deputy Olson observed rips, a blood stain on Jackson’s shirt, and red bumps on Jackson’s head consistent with his having been in a motor vehicle accident. From these facts, it can reasonably be inferred that Jackson was operating his truck at the time his truck “smashed” against a telephone pole.

In addition … Jackson smelled of intoxicants and had “red, bloodshot and glassy” eyes. Olson also observed Jackson perform the field sobriety tests, observed that Jackson’s balance and coordination were impaired, and that Jackson could not accurately recite the alphabet. It was also around bar time on the weekend….

Finally, Olson observed that Jackson’s preliminary breath test result indicated that Jackson’s blood alcohol level was significantly over the legal limit.

(¶¶14-16).

The officer who issued Jackson the notice of intent to revoke his license died before the refusal hearing. The trial court admitted a squad car recording that seemingly depicted the officer reading the Informing the Accused form and Jackson refusing the test; another officer testified that the voice was that of the deceased officer and that the date and time of the recording jibed with the sequence of events as he understood them.

Jackson argues that the recording was insufficiently authenticated (this being a civil matter, Jackson had no confrontation right). The court of appeals rejects his argument, based on State v. Curtis, 218 Wis. 2d 550, 582 N.W.2d 409 (Ct. App. 1998), that a recording must be identified by one of the participants in the conversation, noting that there is “no language in Curtis that holds that eyewitness testimony is the only means of authenticating a recording such as the recording at issue here.” (¶25). It goes on to note that the authentication statute, Wis. Stat. § 909.015, provides as an example of acceptable authentication “[t]estimony of a witness with knowledge that a matter is what it is claimed to be,” which, in the court’s view, describes the testifying officer here.

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