City of Monona v. Erick J. Erickson, 2024AP312, District IV, 5/30/25 (one-judge decision; ineligible for publication); case activity
The COA affirmed Erick J. Erickson’s conviction following a bench trial for operating with a prohibited alcohol concentration and revocation of his operating privileges because he unreasonably refused to submit to a preliminary breath test (PBT). COA found that the circuit court correctly denied Erickson’s motion to suppress because police had probable cause to request the PBT and probable cause to arrest Erickson.
On a snowy night in Monona, Erickson entered a retail store and asked to borrow or buy a shovel to dig his car out of the snow, which was parked in a nearby lot. Store personnel did not give him a shovel, but the manager called police because he believed Erickson was drunk and had been operating a vehicle. (¶ 5).
Two officers responded and encountered Erickson trying to shovel his car out of the snow with an umbrella. Both officers smelled alcohol on Erickson’s breath, noticed his speech was slurred, and saw that he parked his car in an unplowed area of the parking lot – even though a large portion of the lot had been plowed. (¶¶ 6-7).
The officers asked Erickson to perform a preliminary breath test (PBT); he initially consented but did not provide a breath sample sufficient to create a meaningful result. (¶ 8). Erickson then sat in the driver’s side of his car and started to drink from a bottle of water. The officer told him not to drink from it, but Erickson said he was thirsty and took a drink. Erickson then scrolled through his phone, and the officers told him to stop looking at his phone and continue the PBT. Erickson submitted to the PBT, but did not provide a sufficiently long and steady breath to produce a result. When an officer held the breath test tube to Erickson’s face to get him to try it again, Erickson tried to get out of the car. The officer blocked him from leaving the car, and Erickson told the officers that they were violating his rights and resumed looking at his phone. An officer told Erickson that if he did not cooperate with the PBT, they would ask him to perform field sobriety tests. Erickson disputed that the officers had evidence that he drove on a public roadway as opposed to a private parking lot, and asked to speak with a sergeant. Erickson was then placed in handcuffs. (¶¶ 31-32). Police obtained a warrant to test Erickson’s blood, which showed a blood alcohol concentration of .092. (¶ 11).
Erickson was convicted of operating with a prohibited alcohol concentration as a first offense. The circuit court also found that he unreasonably refused to submit to a breath test. On appeal, Erickson argued that his motion to suppress should have been granted because there was not sufficient evidence for the police to request that he submit to a PBT nor was there sufficient evidence to arrest him.
Regarding the PBT, the Court noted that police are required under Wis. Stat. § 343.303 to have probable cause that a driver was operating under the influence or had a prohibited alcohol concentration before requesting that the driver to submit to a PBT. (¶ 16). And “probable cause to believe” is a level of proof greater than reasonable suspicion, but less than probable cause to arrest. (¶ 16). The Court found police had probable cause to believe Erickson was under the influence in light of the following: 1) he drove his car into an unplowed area of the parking lot and tried to dig out of the snow with an umbrella; 2) the officer smelled alcohol on his breath; 3) his speech was slurred; and 4) his answers to the officers’ questions were evasive. (¶¶ 18-21). “Considered together, these facts were more than sufficient to justify a request that Erickson submit to a PBT under Wis. Stat. § 343.303.” (¶ 22).
As for probable cause to arrest, the Court found – in addition to the facts discussed above — Erickson’s attempt to retract his initial statement to the officers that he had been driving, inability to follow the officers’ commands not to drink water, scrolling through his phone while avoiding answering the officers’ questions, and confrontational mannerisms “easily established” probable cause. (¶ 33).
