Review of an unpublished court of appeals decision; case activity
Issues (composed from the State’s Petition for Review)
Did the police have probable cause to arrest Dean Blatterman for operating with a prohibited alcohol concentration, where police were aware Blatterman had three prior OWI convictions, and thus had a .02 PAC threshold?
Did the police have a legitimate community caretaker concern when they transported Blatterman ten miles from the site of the traffic stop to a hospital?
As explained with more specifics in our post on the court of appeals decision, after stopping Blatterman the police took him to a hospital 10 miles away, in part because they thought he might need medical treatment (something he refused at the scene after an ambulance arrived). The main issue litigated below was whether, under State v. Quartana, 213 Wis. 2d 440, 446, 570 N.W.2d 618 (Ct. App. 1997), the police exceeded the scope of a permissible investigative stop because they: (1) moved the suspect outside the vicinity of the stop; and (2) lacked a reasonable purpose for doing so. The court of appeals held the hospital was not within the vicinity of the stop, so it didn’t reach the second part of the test. (¶¶24-27). The court also rejected the state’s alternative claim that if Blatterman was effectively under arrest by being moved to the hospital, there was probable cause for the arrest, particularly in light of information that his legal alcohol limit was .02. The court specifically rejected the argument about the significance of the .02 limit because it was undeveloped and unsupported by citation to authority. (¶¶28-29).
The state, represented now by the AG’s office, complains (PFR at 13) that the court of appeals was “too harsh” on the state, as its court of appeals brief devoted several pages to the probable cause argument and neglected only to cite State v. Goss, 2011 WI 104, 338 Wis. 2d 72, 806 N.w.2d 918 (for purposes of determining probable cause to administer a PBT, the .02 threshold necessarily requires less information than in a case involving a .08 threshold). Probable cause to administer a PBT is, of course, a lesser standard than probable cause to arrest, County of Jefferson v. Renz, 231 Wis. 2d 293, 603 N.W.2d 541 (1999), so the court will now decide whether the logic of Goss regarding probable cause to give a PBT also applies to determining probable cause to arrest.
As for the community caretaker issue, the court of appeals cursorily discussed it (¶32), but said the state “has not shown a path” through the panoply of applicable doctrines. (¶33). Despite the state’s disingenuous complaints (PFR at 11-12, 18-20), the court of appeals’ characterization is apt, for the DA’s court of appeals brief contains not a word about the applicable law on the doctrine. Waiver of this argument by the state aside, the supreme court need not reach the issue if it concludes there was probable cause to arrest. But if it does, the decision will be the first published decision addressing use of the community caretaker doctrine to transport a detained person, as opposed to making a traffic stop, e.g., State v. Kramer, 2009 WI 14, 315 Wis. 2d 414, 759 N.W.2d 598, or entering a home without a warrant, e.g., State v. Pinkard, 2010 WI 81, 327 Wis. 2d 346, 785 N.W.2d 592. (One unpublished and uncitable court of appeals decision, State v. Darla J. Tilley, No. 00-2540-CR (Wis. Ct. App. Aug. 21, 2001) (per curiam) has used the doctrine to uphold the search of the defendant’s belongings after she was taken into protective custody and moved to a mental health facility).