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Police had probable cause to arrest for OWI for purposes of refusal statute

State v. Taras O. Haliw, 2021AP1095, District 4, 1/13/21 (one-judge decision; ineligible for publication); case activity (including briefs)

Haliw argues his license shouldn’t be revoked for refusing a chemical test for alcohol because the police didn’t have probable cause to arrest him for OWI, see § 343.305(9)(a)5.a. The court of appeals rejects his argument.

Haliw and his friend Owerko travelled in Owerko’s truck to Haliw’s cabin, stopping at a tavern en route. They arrived at the cabin in a snowstorm, and during the walk from the truck to the cabin Haliw lost his keys and Owerko lost his way. Haliw went to a neighbor’s house and out of concern for Owerko called police. The deputies who responded to the call followed footprints leading from the driver’s door to a body impression in the snow, where they found a backpack apparently belonging to Haliw. Owerko, who made it to the cabin, told police he was not driving, while Haliw initially admitted and then denied driving. Police arrested Haliw, who refused a chemical test. (¶¶2-4, 6).

Haliw moved to suppress and to challenge revocation for refusal on the ground police lacked probable cause to arrest him. Owerko testified at the suppression hearing that he was the only person who drove his truck that night and did not recall telling police he didn’t drive; the neighbor testified she was present when police talked to Haliw and she didn’t hear him admit he was driving. (¶¶5, 7). The circuit court credited the officers’ contrary testimony and found probable cause. (¶8).

The court of appeals affirms under the lower standard applicable at a refusal hearing compared to a suppression hearing—namely, whether “the officer’s account is plausible,” which means “the court will not weigh the evidence for and against probable cause or determine the credibility of the witnesses.” State v. Wille, 185 Wis. 2d 673, 681, 518 N.W.2d 325 (Ct. App. 1994). (¶16).

¶17     In this case, the officers’ testimony was sufficient to establish that they had probable cause to believe that Haliw had driven from the bar to the cabin that night. The facts relied on by the circuit court—Owerko’s purported denial that he was the driver, Haliw’s alleged admission and later recantation of driving, and the “other circumstances attendant thereto,” including [Deputy] Crary’s testimony that he followed footprints from the driver’s side of the truck to a body impression in the snow and pill bottles with Haliw’s name—were certainly “plausible.” ….

¶18     Haliw does not meaningfully argue that these facts lack plausibility, or that the plausible facts collectively amount to probable cause. Rather, he argues that the circuit court should have credited Owerko’s testimony and should not have credited the officers’ testimony. I reject this argument for two reasons. First, an appellate court will not normally substitute its judgment about the credibility of witness testimony for that of the circuit court. State v. Echols, 175 Wis. 2d 653, 671, 499 N.W.2d 631 (1993). Second, as explained above, Wisconsin cases have stated that, in the context of a refusal hearing, the court will not decide the case based on credibility determinations. Wille, 185 Wis. 2d at 681….

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