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OWI — probable cause to arrest; information from ER nurse regarding blood alcohol test

Marathon County v. Eric G. Fischer, 2013AP760, District 3, 9/4/13; court of appeals decision (1-judge; ineligible for publication); case activity

Police lacked probable cause to arrest Fischer because a “tip” from an ER nurse that Fischer’s BAC was “0.15 percent” did not provide a reliable basis to conclude Fischer was operating while intoxicated.

Fischer was the operator of a motorcycle that crashed. (¶2). Police collected scant information at the scene before Fischer was taken to the hospital. (¶3). There, Fischer told the officer he’d swerved to avoid a turkey, which the officer found plausible, and the officer noted no indications of impairment. (¶4). The officer concluded his investigation and was about to leave the hospital when an ER nurse told him Fischer had admitted to drinking. (¶¶4-5). The officer spoke again with Fischer, who admitted to having two drinks with lunch. The officer also noticed a “slight” odor of alcohol from Fischer’s oxygen mask. (¶6). He administered a PBT, which read 0.06. (¶7). The officer concluded he had no probable cause to arrest Fischer for OWI, and again prepared to leave. (¶8).  He was again approached by the same ER nurse, who said the hospital had obtained a blood sample “and it was a 0.15 percent.” (¶8). The officer didn’t see a document reflecting this result or ask the nurse how she knew this information. (¶9). He then arrested Fischer.

Because the information available before the putative blood test result did not add up to probable cause, the question is whether the officer could properly rely on the blood test result conveyed by the nurse in concluding there was probable cause. The answer is “no.” Noting the tip must be assessed based on the informant’s veracity and basis for knowledge, see State v. Rutzinski, 2001 WI 22, ¶¶17-18, 241 Wis. 2d 729, 623 N.W.2d 516, the court finds a lack of information showing the nurse had a basis for knowing what the blood test result:

¶18      Here, the nurse previously provided information to Heindel that proved to be reliable—specifically, that Fischer admitted to consuming alcohol—and Heindel independently corroborated that fact. This indicates some degree of veracity. However, the nurse provided no basis for her knowledge that Fischer’s blood alcohol content was .15%.  …. As for the contents of the tip at issue, Heindel did not know the metrics used by the hospital when it calculated the blood test result and no one advised him that the result indicated impairment.  Accordingly, we conclude that, even with the nurse’s assumed veracity, the lack of an established basis of knowledge combined with the tip’s lack of detail does not, by itself, establish sufficient indicia of reliability such that the tip, by itself, could be included in the probable cause determination….

¶19      Further, and more problematic, Heindel had actual information—in the form of the preliminary breath test result he conducted—that indicated Fischer was not impaired. Yet, without conducting any sort of investigation, such as inquiring how the nurse obtained her information, confirming the test result indicated impairment, or even asking to view the test result, Heindel simply abandoned his own investigative work and determined the unknown nurse’s information was more reliable and accurate than the test he actually performed.  Stated another way, Heindel chose rank hearsay over the report of an instrument that is designed to give him an indication of impairment, that he operates himself, and that he relies on daily.  Although we agree with the State that a blood test result can be more accurate than a preliminary breath test result, in this case, Heindel needed something more before he discarded his own investigative work in favor of information from an unknown nurse without an established basis of knowledge.

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