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Lack of field sobriety tests doesn’t set higher bar for probable cause

State v. Jarred S. Martens, 2016AP2384, District 4, 7/13/17 (one-judge decision; ineligible for publication) case activity (including briefs)

Martens argues police didn’t have probable cause to arrest him for OWI because he didn’t do field sobriety tests and the absence of those tests means the state has to point to other, especially significant evidence to support probable cause. The court of appeals says the law doesn’t support this proposition, and even if it did there was enough evidence to arrest Martens.

Martens relies primarily on State v. Swanson, 164 Wis. 2d 437, 453 n.6, 475 N.W.2d 148 (1991), abrogated on other grounds by State v. Sykes, 2005 WI 48, 279 Wis. 2d 742, 695 N.W.2d 277, which observed that “[u]nexplained erratic driving, the odor of alcohol,” and driving at bar time are insufficient to support probable cause to arrest for OWI “in the absence of a field sobriety test….” But Washburn Cty. v. Smith, 2008 WI 23, ¶¶33-34, 308 Wis. 2d 65, 746 N.W.2d 243, held that “Swanson did not announce a general rule requiring field sobriety tests in all cases as a prerequisite for establishing probable cause to arrest” for OWI and reaffirmed that probable cause is assessed case by case based on the totality of the circumstances. Under that standard there was probable cause to arrest Martens for OWI:

¶13     …. In addition to two separate sources reporting erratic or strange driving behavior, the deputies had direct evidence of erratic driving: late at night and for no obvious reason, Martens had driven a vehicle into a stranger’s field and then stopped there, with the engine running. Then there was the odor of intoxicants, slurred speech, and bloodshot and glossy eyes. On top of all that, it was highly significant that when the deputies approached, Martens appeared to be either asleep or unconscious, was not easily roused, and even after he was roused he appeared to have trouble responding to their queries. Considered together, these facts easily established reason to believe that Martens had driven under the influence. ….

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