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Turning off idling car didn’t scotch probable cause

City of West Allis v. James M. Gregg, 2018AP1326, District 1, 5/14/19 (one-judge decision; ineligible for publication); case activity (including briefs)

Sure, the car wasn’t running by the time the officer pulled up behind it with his squad lights flashing. But that doesn’t mean the officer lacked probable cause to believe the guy behind the wheel had been operating while intoxicated.

When the officer first saw Gregg’s vehicle the headlights were on and the vehicle was running, as exhaust was coming from the tailpipe. The officer did a U-turn to investigate. The vehicle had been turned off by the time Officer Kaye parked his squad and approached the vehicle; however, Gregg was in the driver’s seat and the keys were in his possession. Gregg admitted that he had been drinking, the officer could smell alcohol on Gregg’s breath, and his physical appearance indicated that he was impaired. He performed poorly on field sobriety tests. (¶¶2-3).

Gregg claims the officer lacked probable cause to believe he operated the car, citing Village of Cross Plains v. Haanstad, 2006 WI 16, ¶24, 288 Wis. 2d 573, 709 N.W. 2d 447, where there was no evidence the person sitting in the driver’s seat of a running car had “operated” the vehicle by “touch[ing] any controls of the vehicle necessary to put it in motion….” To no avail:

¶13     The circumstances are different in this case. Here, when Officer Kaye first observed Gregg’s vehicle it was running, although by the time the officer had parked his squad it had been turned off. This fact was noted by the circuit court, which then referenced the definition of “operating a motor vehicle” from Wis. J.I.—Criminal 2663: “the physical manipulation or activation of any of the controls of a motor vehicle necessary to put it in motion.” The court found that Gregg had “physically manipulated” the controls of the vehicle, and therefore had operated it.

¶14     Gregg argues that turning off the vehicle does not meet the definition of operating a motor vehicle because it is not a manipulation of the controls to put the vehicle in motion. However, this argument ignores the fact that Officer Kaye had seen the vehicle running. Therefore, at some point prior to being turned off, the ignition had been turned on; that is, the vehicle’s controls had been manipulated in a manner that would put it in motion. See Village of Elkhart Lake v. Borzyskowski, 123 Wis. 2d 185, 189, 366 N.W.2d 506 (Ct. App. 1985) (“Operation of a motor vehicle occurs either when a defendant starts the motor or leaves it running.”).

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