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Police had probable cause to arrest for operating with a restricted controlled substance

Forest County v. Brian M. Steinert, 2020AP1465, District 3, 1/19/22 (one-judge decision; ineligible for publication); case activity (including briefs)

Steinert challenged his refusal citation on the ground the police didn’t have probable cause to arrest him, see § 343.305(9)(a)5.a. The court of appeals rejects his challenge.

Steinert was stopped for an equipment violation. The officers noted some possible indicia of intoxication (but no odor of intoxicants) and Steinert was in possession of a syringe and admitted to having used meth some 8 hours earlier. He was arrested for possession of drug paraphernalia–erroneously, as the County concedes, because a syringe by itself isn’t paraphernalia, § 961.571(1)(b)1. (¶¶3-9, 11-14).

But that doesn’t make the arrest illegal because the legality of an arrest doesn’t depend on the arresting officer articulating the correct legal basis for the arrest; instead, “even when an officer acts under a mistaken understanding of the crime committed, an objective test is used to determine the legality of the arrest.” State v. Repenshek, 2004 WI App 229, ¶¶10-11, 277 Wis. 2d 780, 691 N.W.2d 369. In this case there was probable cause to believe Steinert was operating with a restricted controlled substance, as that crime requires only that the driver had a detectable amount of the substance in his or her blood, not that the substance impaired the ability to drive. (¶16).

¶17     Before Steinert was placed under arrest at the scene of the traffic stop, [Deputy] Johnson had observed that Steinert’s speech was slow and that he was stumbling over his words. The officers also knew that a syringe, which is commonly used to inject illegal drugs, had been found on Steinert’s person…. In addition, Johnson had prior experience with Steinert, which involved methamphetamine. Steinert also told the officers that he had used methamphetamine approximately 8.5 hours before the stop, and Johnson knew, based on his training and experience, that methamphetamine can remain in a person’s system for up to twenty-four hours. Taken together, these facts gave rise to probable cause that Steinert had operated a motor vehicle with a detectable amount of a restricted controlled substance in his blood.

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