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COA holds leaving tavern at 2:00 a.m. + open drink in car + odor of intoxicants = probable cause to arrest

State v. Randaro V. Jones, 2020AP1046, District 1 (one-judge decision; ineligible for publication) 9/7/22, case activity (including briefs)

This is not an OWI case; rather, it’s an appeal from a conviction of recklessly endangering safety by using a firearm while intoxicated. But the blood test that led to this charge came as a result of an arrest for OWI-first, so the issue is whether there was probable cause for that arrest.

A Milwaukee officer monitoring taverns saw several people leave a bar at 2:00 a.m., get into a particular Escalade, and drive off. Shortly afterward, the officer heard a gunshot, and headed in the direction he thought the shot had come from. He quickly encountered the Escalade. It was parked and running with its lights on in the middle of the street; Jones, standing near the open driver’s-side front door, was the only person around. The officer patted Jones down and, while doing so, noticed an odor of intoxicants on Jones. After putting Jones in the squad car, the officer returned to the Escalade and noted a spent shell casing on the ground and what looked and smelled like a watered-down alcoholic drink in a plastic cup in the vehicle. He also found a pistol in the pocket behind the front passenger seat.

The officer arrested Jones at this point. (He would later conduct field-sobriety tests at the police station, but there’s no dispute between the parties that this happened after Jones’s arrest, and so couldn’t help establish probable cause.) After the arrest, the officer secured a blood draw of Jones. The court of appeals now rejects Jones’s argument that the arrest was unlawful as lacking in probable cause:

A known visit to a bar, the odor of alcohol, and an alcohol container are “common indicators” of intoxication. See Lange, 317 Wis. 2d 383, ¶¶21, 23. Additionally, “the time of night is relevant” as an indicator of “bar-time traffic.” See id., ¶32. Thus, under the totality of the circumstances, common sense would dictate that there was more than a possibility that Jones was intoxicated. Consequently, this court concludes that these facts are sufficient to establish probable cause for Jones’s arrest.

Jones relies on State v. Anker, 2014 WI App 107, 357 Wis. 2d 565, 855 N.W.2d 483, to support the proposition that Officer Wilkiewicz lacked probable cause of intoxication to arrest him. However, this court concludes that Anker is inapplicable. At issue in Anker was whether the defendant “was arrested or merely subjected to a brief investigatory detention,” not whether probable cause existed for the defendant’s arrest. Id., ¶15. Whether Jones was arrested or detained is not at issue in this case, and the issue presented is whether Officer Wilkiewicz had probable cause to arrest Jones. Anker did not analyze the existence of probable cause because the State had conceded the point by failing to brief the issue. Id., ¶¶2-3, 13. Thus, this court concludes that Anker is inapplicable to the matter at hand and rejects Jones’s reliance on it.

(¶¶13-14).

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