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Being slumped over in driver’s seat in running car with odor of intoxicants on breath, red and glassy eyes, slurred speech, unexplained injuries, slow movements created probable cause to arrest

State v. Michael E. Hale, 2018AP812, 11/8/18, District 1 (one-judge decision; ineligible for publication) case activity (including briefs)

Hale appeals the circuit court’s order that he unreasonably refused a chemical test; the only issue on appeal is whether the officer had probable cause.

The court finds it unclear whether Hale means probable cause to arrest, or the lower standard of probable cause to request a preliminary breath test, see County of Jefferson v. Renz, 231 Wis. 2d 293, 316, 603 N.W.2d 541 (1999), but simplifies the analysis by applying the higher standard. It finds it met:

The circuit court found that the officer observed several indicators of intoxication. As noted above, I am bound to uphold the circuit court’s findings of historical and evidentiary fact unless those are contrary to the great weight and clear preponderance of the evidence. The following historical and evidentiary facts found by the circuit court created the requisite probable cause to arrest Hale for operating a motor vehicle while under the influence of an intoxicant:

  • The officer found Hale slumped over in the driver’s seat while the
    vehicle was parked in a fire lane with the engine running.
  • The officer smelled the odor of intoxicants on Hale’s breath.
  • The officer observed that Hale’s eyes were red and glassy.
  • The officer observed that Hale’s speech was slurred.
  • The officer observed that Hale had suffered injuries to his left hand
    and head and was unable to answer how he sustained those injuries.
  • The officer observed that Hale’s movements were slow and delayed
    when Hale exited the vehicle.

(¶12). It rejects Hale’s argument that in another case, State v. Felton, 2012 WI App 114, 344 Wis. 2d 483, 824 N.W.2d 871, probable cause was found where there were still more indicia of operation while intoxicated. (¶13).

It also disagrees with Hale that the citizen witness who called the police provided insufficient reasonable suspicion for the officer’s initial detention of Hale:

Assuming that Hale is in fact challenging whether the tip provided the officer with reasonable suspicion, he is incorrect. The citizen caller reported that a driver had driven away from the convenience store, seemed “off,” and had suffered apparent injuries. After arriving at the convenience store, the officer searched for the vehicle and located it in a fire lane in front of a nearby business with the engine running. The officer observed that Hale was slumped over in the  driver’s seat and that Hale had apparent injuries to his left hand and head. Thus, the officer independently corroborated the caller’s statements. Accordingly, I conclude that the tip was sufficiently reliable. See State v. Miller, 2012 WI 61, ¶32, 341 Wis. 2d 307, 815 N.W.2d 349 (explaining that, when an informant is more reliable, “there does not need to be as much detail in the tip or police corroboration in order for police to rely on that information”); see also Powers, 275 Wis. 2d 456, ¶14 (independent verification of tip is relevant as to whether there was reasonable suspicion).


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