In re Smith
| Decision Date | 28 March 2008 |
| Docket Number | No. 2006AP3163.,2006AP3163. |
| Citation | 746 N.W.2d 243,2008 WI 23 |
| Parties | In the Matter of the Refusal of Eric D. SMITH: Washburn County, Plaintiff-Respondent, v. Eric D. Smith, Defendant-Appellant-Petitioner. |
| Court | Wisconsin Supreme Court |
For the defendant-appellant-petitioner there were briefs by Kevin J. Mulrooney, Kirk B. Obear, and Melowski, Obear & Cohen, S.C., Elkhart Lake, and oral argument by Kirk B. Obear.
For the plaintiff-respondent there was a brief and oral argument by Daniel J. Tolan, Assistant District Attorney.
The defendant, Eric D, Smith, seeks review of an unpublished decision of the court of appeals affirming an order of the Circuit Court for Washburn County, Eugene D. Harrington, Judge.1 At a statutory refusal hearing, the circuit court revoked the defendant's operating privileges for refusing to submit to a test to determine the presence or quantity of alcohol. The circuit court determined that the defendant improperly refused to submit to chemical testing under Wisconsin's Implied Consent Law, Wis. Stat. § 343.305 (2003-04).2 The circuit court ordered the defendant's operating privileges revoked for twelve months. The charge of operating a motor vehicle while under the influence of an intoxicant remains pending.
¶ 2 The issues at a statutory refusal hearing are limited to, inter alia, whether the officer had probable cause to believe that the person was driving or operating a motor vehicle while under the influence and whether the officer complied with Wis. Stat. § 343.305(4) governing the information the officer shall read to the person from whom the test specimen is requested.3
¶ 3 Two issues are presented on review of the decision of the court of "appeals affirming the circuit court's order revoking the defendant's operating privileges during the refusal hearing:
I. Did the circuit court err in determining in the refusal hearing that the law enforcement officer had probable cause to arrest the defendant for operating a motor vehicle while under the influence of an intoxicant?
II. Did the circuit court err in determining in the refusal hearing that the defendant improperly refused to submit to chemical testing?
¶ 4 This court is reviewing the rulings of the circuit court at the refusal hearing.
¶ 5 We affirm the decision of the court of appeals affirming the circuit court's order revoking the defendant's operating privileges. The circuit court did not err in concluding that the state presented sufficient evidence at the refusal hearing to establish the officer's probable cause to believe that the defendant was operating a motor vehicle while under the influence of an intoxicant. The circuit court did not err in holding that the defendant improperly refused to submit to chemical testing.
¶ 6 We shall state the facts relevant to each issue in discussing that issue.
¶ 7 The defendant urges that the evidence presented at the refusal hearing established that the law enforcement officer had only a reasonable suspicion that the defendant operated a motor vehicle while under the influence of an intoxicant. In deciding whether the circuit court erred in determining in the refusal hearing that Deputy Sutherland had probable cause to arrest the defendant for operating a motor vehicle while under the influence of an intoxicant, we first state the facts surrounding the arrest and then answer the question of probable cause.
¶ 8 Here are the facts. At approximately 2:40 a.m. on July 23, 2006, Deputy Shawn Sutherland of the Washburn County Sheriffs Department observed the defendant's vehicle traveling on a two-lane highway at a rate of speed that appeared to be well above the posted speed limit of 55 miles per hour. The Deputy's stationary radar indicated that the defendant's vehicle was traveling at 76 miles per hour, 21 miles per hour in excess of the posted speed limit.
¶ 9 The Deputy activated his emergency lights and followed the defendant. While in pursuit, the Deputy observed that the defendant seemed to have "a delayed response" in pulling over. Deputy Sutherland estimated that the defendant continued to travel down a curved portion of the highway for approximately three-tenths of a mile after the officer activated his emergency lights. The Deputy also observed the defendant's vehicle cross the highway's double-yellow centerline twice before the defendant pulled over.
¶ 10 Once the defendant pulled over, the Deputy approached the driver's side of the vehicle and initiated conversation with the defendant. The Deputy detected the odor of alcohol on the defendant's breath and asked the defendant how much he had been drinking that night. The defendant responded that he had consumed "a couple of beers" at Grandma Link's Restaurant and Bar.
¶ 11 Later in the conversation, the defendant also told the Deputy that he would be lying if he said he had just a couple beers. Deputy Sutherland asked the defendant how long he had been drinking that night. The defendant replied that he had consumed more than two beers between the hours of 4:00 p.m. and just prior to being stopped at 2:40 a.m.
¶ 12 The Deputy testified that he formed the opinion that the defendant was too intoxicated to operate a motor vehicle safely. The Deputy also testified that he formed this opinion on the basis of the excessive speed at which the defendant was driving; the fact that the defendant crossed the highway's centerline while being pursued; the odor of intoxicants on the defendant's breath; and the amount of alcohol that the defendant admitted to having consumed. Deputy Sutherland placed the defendant under arrest for operating a motor vehicle while under the influence of an intoxicant and transported the defendant to the Washburn County jail.4
¶ 13 The defendant urges that this court reverse the circuit court's holding of probable cause on the ground that the evidence presented at the refusal hearing established that the law enforcement officer had only a reasonable suspicion that the defendant operated while intoxicated, which is not sufficient to justify an arrest.
¶ 14 The issue presented is whether the circuit court erred in ruling in the refusal hearing that the law enforcement officer had probable cause to arrest the defendant for operating a motor vehicle while under the influence of an intoxicant. The circuit court could not revoke the defendant's operating privileges based on the defendant's refusal to submit to chemical testing unless the defendant's arrest was based on probable cause.5
¶ 15 In the context of a refusal hearing following an arrest for operating a motor vehicle while intoxicated, "probable cause" refers generally to that quantum of evidence that would lead a reasonable law enforcement officer to believe that the defendant was operating a motor vehicle while under the influence of an intoxicant.6 The burden was on the state in the instant case to present evidence sufficient to establish the officer's probable cause to believe that the defendant was operating a motor vehicle while under the influence of an intoxicant.7
¶ 16 Whether probable cause to arrest exists in a given case is a question of law that this court determines independently of the circuit court and court of appeals but benefiting from their analyses.8
¶ 17 In arguing that the Deputy did not have probable cause to arrest him for operating a motor vehicle while under the influence of an intoxicant, the defendant contends that no evidence existed of slurred speech, difficulty standing, bloodshot eyes, or other indicia of intoxication. The defendant relies principally upon two decisions of this court to support his position that the Deputy did not have probable cause to arrest him for operating a motor vehicle while under the influence of an intoxicant: State v. Seibel, 163 Wis.2d 164, 471 N.W.2d 226 (1991), and State v. Swanson, 164 Wis.2d 437, 475 N.W.2d 148 (1991). Neither case supports the defendant.
¶ 18 In Seibel, a law enforcement officer arrested Seibel for homicide by negligent use of a motor vehicle after Seibel's motorcycle crossed a highway centerline, sideswiped an oncoming vehicle and caused the death of the vehicle's two occupants.9 Seibel subsequently agreed to provide the officer with a blood sample for purposes of a blood alcohol test.10 The State charged Seibel with two counts of homicide by intoxicated use of a vehicle, along with other crimes involving operation of a motor vehicle while under the influence of an intoxicant.11
¶ 19 Seibel moved to suppress the results of his blood alcohol test on the ground that probable cause did not exist to arrest him for operating a motor vehicle while under the influence of an intoxicant and that the State's act of drawing a blood sample from Seibel constituted an unlawful search in violation of the Fourth Amendment.12
¶ 20 The Seibel court did not address the question whether the State had probable cause to arrest Seibel for operating a motor vehicle while under the influence of an intoxicant.13 Rather, in Seibel the court concluded that when the officer had probable cause to arrest Seibel for homicide caused by negligent operation of a motor vehicle,14 the State need prove only reasonable suspicion to believe that the driver's blood contained evidence to take a blood sample incident to the arrest.
¶ 21 The Seibel court determined that the law enforcement officers had reasonable suspicion to believe that Seibel's blood contained evidence of the crime of homicide by negligent operation of a motor vehicle, namely evidence that Seibel had imbibed an amount of alcohol sufficient to lessen or impair his ability to exercise ordinary care behind the wheel.15 The court identified four indicia of drinking that collectively established reasonable suspicion: Seibel's unexplained erratic driving leading to a serious accident; a strong odor of intoxicants emanating from Seibel's traveling companions (who had...
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State v. Blackman
...we conclude that the evidence of Blackman's blood test should be suppressed.¶76 The dissent contends that Washburn County v. Smith , 2008 WI 23, 308 Wis.2d 65, 746 N.W.2d 243, contravenes our holding that the misrepresentation in the Informing the Accused Form requires suppression of the ev......
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... ... 24. For examples of cases where this court has assumed without deciding that a preliminary step in the analysis has been satisfied, see Washburn County v. Smith, 2008 WI 23, ¶ 86, 308 Wis.2d 65, 746 N.W.2d 243 ("Even assuming that the defendant has satisfied the first two prongs of the [ County of Ozaukee v. ] Quelle [198 Wis.2d 269, 542 N.W.2d 196 (Ct. App.1995)] inquiry, he has not satisfied the third prong."), and Nichols v. Progressive N. Ins ... ...
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