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COA rejects defendant’s changed story, affirms probable cause for OWI

State v. Smolarek, 6/16/22, District 4, (1-judge opinion, ineligible for publication); case activity (including briefs)

Smolarek was involved in a motorcycle accident. After allegedly admitting that he had smoked marijuana much earlier that day, an officer arrested him. A blood test showed that he had been driving under the influence of THC. Smolarek moved to suppress arguing that the officer got his story wrong. He admitted that he had smoked marijuana after the accident. So the officer lacked probable cause to arrest him.

Smolarek pointed to the witness statement that he wrote shortly after his arrest. It indicated that he smoked marijuana after the accident. The circuit court did not buy his story. It relied on the officer’s testimony that Smolarek initially told her that he smoked marijuana before driving his motorcycle. He only changed his story after he was arrested.

The court of appeals held that it must defer to the circuit court’s credibility determinations and weighing of evidence from the suppression hearing. Opinion, ¶10 (citing State v. Poellinger, 153 Wis. 2d 493, 506, 451 N.W.2d 752 (1990)). It also held that the circuit court’s findings were amply supported by the officer’s testimony. Id. (citing Reusch v. Roob, 2000 WI App 76, ¶8, 234 Wis. 2d 270, 610 N.W.2d 168).

According to the court of appeals, Smolarek also argued that his admission to the officer could not support probable cause without corroborating evidence. The court of appeals declined to consider the argument because Smolarek cited no case law to support it. Opinion, ¶11.

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