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PBT – Probable Cause

State v. Herbert L. Hamilton, 2011AP1325-CR, District 4, 11/23/11

court of appeals decision (1-judge, not for publication); for Hamilton: Dixie Lippit; case activity

Although driver in single-car accident didn’t exhibit signs commonly associated with intoxication, the smell of alcohol on his breath coupled with his loss of control of the car provided probable cause to administer a preliminary breath test under § 343.303:

¶15      First, the officer testified to a slight odor of alcohol.  The court credited this testimony despite Hamilton’s denial that he had been drinking.

¶16      Second, as the circuit court correctly noted, a reasonable officer was entitled to infer from the denial, despite the odor to the contrary, that Hamilton was showing a consciousness of guilt.  In addition, given the officer’s testimony that in his experience people chew gum to get rid of the odor of alcohol, a reasonable officer could infer that Hamilton’s gum chewing was further evidence of Hamilton’s consciousness that he was guilty of driving while intoxicated.

¶17      Third, although the officer did not see physical signs that Hamilton was intoxicated, his observations of the scene were an ample basis from which a reasonable officer could infer that Hamilton had consumed enough alcohol to impair his driving.  The officer could see that only one set of tire tracks left the road and the tracks ended up where Hamilton’s car was located; the car parts strewn along the tire tracks matched Hamilton’s car; the culvert provided a logical though not conclusive source of the damage to Hamilton’s car; and the officer saw no red paint on Hamilton’s car where Hamilton said the other car had hit his.  Driving off the road as the tire tracks had shown is certainly an indication of impaired driving.

Time of the incident (7:00 p.m.) is “neutral,” thus “does not weigh in his favor,” ¶19. Apparently, time of day either weighs in favor of intoxication, or not at all. See,  State v. Post, 2007 WI 60, ¶36, 301 Wis. 2d 1, 733 N.W.2d 634 (while 9:30 p.m. time of occurrence less significant than poor driving at “bar time,” it “does lend some further credence” to suspicion of drunk driving). What it comes down to, then, is bad driving, a faint odor of alcohol, and denial of drinking. Did the denial – i.e., consciousness of guilt – tip the balance? What if Hamilton had forthrightly acknowledged having had a little alcohol? Otherwise, we’re left merely with an accident and evidence of minimal drinking (not enough for field sobriety testing). Note, though, that Hamilton himself called the police to the scene – but to investigate a claimed hit-and-run. The court mentions this fact, but doesn’t stress it, ¶18. Isn’t is significant, though, that the officer’s investigation apparently rejected the idea of another car’s involvement (¶¶4-5)? After all, if the accident were caused by a hit-and-run rather than Hamilton’s erratic driving, then probable cause evaporates. Hamilton’s (seemingly) false claim of a hit-and-run would also evince consciousness of guilt, wouldn’t it? And if that’s so, then the multi-dimensional quality of his consciousness of guilt should add quite a bit to the probable cause calculus.

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