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Arrest – Probable Cause – OWI

State v. Mitchell A. Lange, 2009 WI 49, reversing unpublished opinion
For Lange: Steven M. Cohen

Issue/Holding: Probable cause to arrest for OWI was based on the following factors:

¶24      First, the driving that Officer Hoffman and Officer Penly witnessed is relevant. The driving was not merely erratic and unlawful; it was the sort of wildly dangerous driving that suggests the absence of a sober decision maker behind the wheel. …

¶30      Second, the officers’ experience is a consideration. …

¶31      Officer Penly and Officer Hoffman discussed their observations, as well as the question whether they had probable cause to arrest the defendant for operating while under the influence at the hospital. Officer Penly informed Officer Hoffman that in his opinion, probable cause existed to arrest the defendant for operating while under the influence.

¶32      Third, the time of night is relevant. Officer Hoffman’s and Officer Penly’s uncontroverted testimony was that they encountered the defendant about when Saturday night bar-time traffic arrives in Maple Bluff from downtown Madison. It is a matter of common knowledge that people tend to drink during the weekend when they do not have to go to work the following morning.

¶33      Fourth, by the time of the arrest, Officer Hoffman had discovered that the defendant had a prior conviction for operating a motor vehicle while under the influence of an intoxicant. Officer Hoffman could take this evidence into account when determining whether she had probable cause to believe that the defendant was under the influence of an intoxicant while operating his vehicle.[14]

¶34      Fifth, the defendant’s collision with the utility pole cut off the law enforcement officers’ opportunity for further investigation. The defendant was unconscious, bloody, and lying amid a gasoline-soaked crash scene when Officer Hoffman discovered him. It is neither surprising nor significant that Officer Hoffman failed to detect any odors of intoxicants, to ascertain whether the defendant’s speech was slurred or his balance impaired, to obtain an admission that the defendant had been drinking, to administer a field sobriety test to the defendant, or to discover any empty cans or bottles in the defendant’s compacted and evidently flammable vehicle.

Typical indicia of usage—odors, admissions, etc.—may strengthen probable cause but aren’t necessary to its existence, ¶36. But, the court also emphatically rejects Lange’s claim that refusal to suppress will mean that any accident in and of itself furnishes probable cause; instead, there must be “totality-of-the-circumstances” support, evidenced in this case by the factors listed above, ¶39. The fact that Lange couldn’t be questioned because he was unconscious at the scene, and remained so at the hospital, appears to be significant, but how much so is left unsaid, ¶36. A 3-Justice concurrence spills a bit of ink stressing a point that doesn’t seem to be in dispute, namely that a field sobriety test isn’t a prerequisite for OWI probable cause, ¶¶42-43.


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