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Complaint was sufficient to establish probable cause for operating controlled substance OWI

State v. Jeffrey D. Marker, 2013AP2725-CR, District 2, 3/26/14; court of appeals decision (1-judge; ineligible for publication); case activity

The circuit court erred in dismissing a complaint charging Marker with operating under the influence of a controlled substance because the complaint was sufficient to establish probable cause, applying Lofton v. State, 83 Wis. 2d 472, 478, 266 N.W.2d 576 (1978). After police received a tip about a reckless driver, an officer tracked down the vehicle, which he stopped after observing it weave in its lane. Marker had slurred speech, performed poorly on field sobriety tests, and admitted taking numerous prescription medications, which was confirmed by blood test results. (¶4). The levels of those substances in his blood don’t preclude a probable cause finding:

¶6        Marker’s only argument on appeal is that the blood report’s indication that the drugs were found at “low therapeutic concentration” means that the other facts alleged do not add up to probable cause. We disagree. Slurred speech, the call from the complainant about erratic driving, Marker’s own voluntary admission to the officer that Marker had been pulled over earlier that day, the poor performance on the field sobriety tests—these are sufficient to establish probable cause even without the blood test results. Furthermore, that the drugs were at low therapeutic levels does not mean that they could not have an impairing effect in combination. The significance of the drugs’ levels would be a question for trial, not a detail that renders the rest of the alleged facts meaningless and strips the complaint of probable cause.

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