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Officer had probable cause for OWI arrest based on circumstantial evidence

State v. Brandon Daniel Mulvenna, 201AP2341-CR, 7/9/20, District 4 , (1-judge opinion, ineligible for publication); case activity (including briefs)

Mulvenna wasn’t operating his motorcycle when an officer, responding to a call, arrived to find him trying to lift it while it was facing south on a northbound only roadway. Mulvenna had bloodshot eyes and slurred speech and smelled of alcohol. He refused field sobriety tests, so the officer cuffed him and placed him in the back of his squad car. The sole issue is whether the officer had probable cause for the arrest. The court of appeals answered “yes,” and noted some appellate rules violations.

An OWI has two elements: (1) the defendant drove or operated a motor vehicle on a highway; and (2) we was under the influence of an intoxicant at the time. Wis. Stat. § 346.63(1)(a). Mulvenna argued that in his case the officer lacked probable cause of the first element because there was no direct evidence that he had recently operated the motorcycle.

The court of appeals noted that the officer only needed circumstantial evidence of an OWI, and he had it. See County of Milwaukee v. Proegler, 95 Wis. 2d 614, 626-28, 291 N.W.2d 608 (Ct. App. 1980); see WIS. JI—CRIMINAL 170 (“Circumstantial evidence is evidence from which a jury may logically find other facts according to common knowledge and experience.”) It held:

¶20 A reasonable inference (indeed, the most reasonable inference) is that Mulvenna was driving or operating the motorcycle when it overturned and Mulvenna then attempted to right the motorcycle but was unable to do so. And, he did all that while intoxicated.

Rules violations: Mulvenna also argued that the circuit court erred in denying the suppression of evidence obtained through the unlawful arrest. The court of appeals refused to address the argument because Mulvenna failed to specify the evidence that should have been suppressed.  It also warned appellate counsel about citing to an unpublished per curiam opinion. Opinion, ¶1 n.2.


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