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COA holds OWI arrest supported by probable cause

County of Jefferson v. Julianne Trista Wedl, 2022AP328, 9/9/22, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Wedl was driving her car when she came upon another vehicle engulfed in flames. An off-duty police officer also happened by and stopped. When the first on-duty officer arrived, he approached Wedl, who seemed to be in shock. He conversed with her and detected an odor of intoxicants when she spoke. He didn’t tell her he suspected anything, though: he said someone would get her statement about the burning car shortly, and suggested she wait in the back of his squad as it was chilly out.

Without telling Wedl, this officer arranged for a second to come to the scene to investigate her for possible OWI. When that second officer arrived, the off-duty cop asked if he was needed, and was told he wasn’t, and could go. The second officer approached Wedl, who was not in the squad car, but standing outside. She was distraught and crying. She said she’d been driving home, and described her encounter with the burning car. The officer didn’t notice any slurring, odd speech, or walking or balance problems, but did observe a “strong” odor of intoxicants on Wedl’s breath and glassy, bloodshot eyes. The officer asked Wedl if she’d been drinking, and she said she had: that she had either “a few” or “a couple” “regular sized” glasses of wine. At this point, the officer told Wedl he wanted her to perform field sobriety tests; these led to her arrest.

Wedl argues that the first officer lacked reasonable suspicion to detain her, and that the second lacked reasonable suspicion to continue her detention.

The court of appeals holds that the first officer–who suggested she wait in the back of his squad for someone who could take her statement about the car–did not detain her, and thus didn’t need to have reasonable suspicion. It says that this officer didn’t bring about Wedl’s presence at the scene, didn’t “command[]” or tell her to remain there, didn’t invoke his official authority to cause her to stay, and didn’t restrain her freedom of movement. (¶¶23-26). It also rejects Wedl’s argument that the officer’s “ruse” of not telling her of his suspicion and surreptitiously summoning another officer should weigh in favor of a seizure, noting that an officer’s subjective beliefs of a person’s guilt don’t enter the picture unless they’re communicated to the person. (¶27 (citing State v. Williams, 2002 WI 94, ¶23, 255 Wis. 2d 1, 646 N.W.2d 834)). The court says that

[s]tepping back, it appears that Wedl remained on the scene, believing herself to be a witness and not a suspect, because of a desire or engrained social pressure to cooperate with the investigation. To be sure, individuals “may feel tethered by social norms to [comply with] an officer’s request and may consent in order to avoid the taboo of disrespecting an officer of the law.” Vogt, 356 Wis. 2d 343, ¶31. However, the fact that individuals may willingly respond to police requests “‘hardly eliminates the consensual nature of the response’” and does not transform the consensual encounter into a seizure. Id., ¶24 (quoted source omitted); see also Young, 294 Wis. 2d 1, ¶37. Because any show of authority by Williams was insufficient, I conclude that he did not seize Wedl.

(¶28.)

Turning to the second officer, the court concludes that he seized Wedl when he told her he would be conducting field sobriety tests. (¶¶30-32). Calling it a “close case,” the court concludes that her admission to drinking some alcohol, the strong odor of intoxicants, and her glassy and bloodshot eyes were good enough to supply reasonable suspicion. It rejects her argument that her actions on-scene (she attempted to rescue anyone in the vehicle before being driven back by the fire) militated against reasonable suspicion. (¶¶39-45). Though Wedl’s actions were “brave,” the court says, “I do not agree that bravery is necessarily an indicator of sobriety.” (¶45).

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