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OWI – Refusal – Probable Cause to Arrest

Town of Mukwonago v. John J. Uttke, 2011AP2021, District 2, 1/18/12

court of appeals decision (1-judge, not for publication); for Uttke: Michael C. Witt; case activity

Uttke’s driver’s license was revoked for refusal to submit to a blood test upon OWI arrest, and he requested a “refusal hearing,” unsuccessfully challenging the existence of probable cause to arrest, § 343.305(9). The court of appeals affirms:

¶9        We first address whether Officer Heckman had probable cause to arrest Uttke.  In State v. Kasian, 207 Wis. 2d 611, 622, 558 N.W.2d 687 (Ct. App. 1996), the arresting officer came upon the scene of a one-vehicle accident.  The officer observed a damaged van next to a telephone pole with its engine still running.  Id.  The injured driver was lying next to the van and smelled like alcohol.  Id.  Later at the hospital, the officer observed that the driver’s speech was slurred.  Id.  We held that this evidence constituted probable cause that the driver was operating while intoxicated.  Id. 

¶10      As the facts of Kasian are similar to this case, we hold that Heckman had probable cause to arrest Uttke for operating while intoxicated.  Heckman came upon a one-vehicle accident and noted that there were skid marks and blood marks where Uttke crashed his motorcycle.  As Heckman arrived at the scene of the accident, he was informed by another officer that Uttke smelled like alcohol.  When Heckman first made contact with Uttke at the hospital, he confirmed for himself that Uttke smelled like alcohol.  A reasonable police officer in this position would conclude that Uttke was operating while intoxicated.

Uttke also and unsuccessfully argues that his refusal was excused by a physical ailment rather than intoxication, § 343.305(9)(a)5.c. He bears the burden of persuasion on this issue, and falls short, ¶11: “The only evidence Uttke submits of his physical inability to refuse to take the test was that he had a head injury and that he thought the year was 2001.  Uttke did not, however, offer any medical evidence as to the extent of his head injury.  Furthermore, his confusion about the current year could have easily stemmed from inebriation.”

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