State v. Lange
| Decision Date | 16 June 2009 |
| Docket Number | No. 2008AP882-CR.,2008AP882-CR. |
| Parties | STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Mitchell A. LANGE, Defendant-Appellant. |
| Court | Wisconsin Supreme Court |
For the plaintiff-respondent-petitioner there were briefs and oral argument by Timothy David Kiefer, assistant district attorney.
For the defendant-appellant there was a brief by Steven M. Cohen, Madison, and oral argument by Steven M. Cohen.
The State seeks review of an unpublished decision of the court of appeals reversing an order and a judgment of the Circuit Court for Dane County, Diane M. Nicks, Judge.1 The circuit court denied defendant Mitchell A. Lange's motion to suppress the results of a blood test analyzing a sample of his blood. The defendant entered a no-contest plea and was found guilty of operating a motor vehicle while under the influence of an intoxicant as a second offense contrary to Wis. Stat. § 346.63(1)(a) (2005-06).2
¶ 2 We are asked to determine whether a law enforcement officer complied with the Fourth Amendment to the United States Constitution when obtaining a blood sample from the defendant without a warrant to do so. Our prior cases establish that a warrantless blood sample taken at the direction of a law enforcement officer is consistent with the Fourth Amendment under the following circumstances: "(1) the blood draw is taken to obtain evidence of intoxication from a person lawfully arrested for a drunk-driving related violation or crime, (2) there is a clear indication that the blood draw will produce evidence of intoxication, (3) the method used to take the blood sample is a reasonable one and performed in a reasonable manner, and (4) the arrestee presents no reasonable objection to the blood draw."3
¶ 3 The defendant challenges the blood draw on a single ground, namely that he was not lawfully arrested for operating a motor vehicle while under the influence of an intoxicant when his blood was taken. More specifically, the defendant argues that his arrest for operating a motor vehicle while under the influence of an intoxicant was not lawful because the arresting officer lacked probable cause to believe that the defendant was operating a motor vehicle while under the influence of an intoxicant. The defendant does not challenge the constitutionality of the blood draw except on the ground of the constitutionality of the arrest.
¶ 4 Accordingly, we state the issue on review as follows: Did the law enforcement officer, at the time of the defendant's arrest, have probable cause under the circumstances of the instant case to believe that the defendant was guilty of operating a motor vehicle while under the influence of an intoxicant?
¶ 5 We conclude that the circuit court did not err in concluding that the state met its burden of establishing that at the time of the arrest the law enforcement officer had probable cause to believe that the defendant was operating a motor vehicle while under the influence of an intoxicant. Accordingly, we reverse the decision of the court of appeals reversing the order of the circuit court.
¶ 6 We briefly summarize the facts relating to the defendant's arrest and the blood draw. We will furnish additional facts later in the opinion when discussing the legal issue presented.
¶ 7 The facts are not disputed. Some facts are taken from a written report filed by the arresting officer, Officer Margaret Hoffman of the Maple Bluff Police Department. The defendant filed a portion of Officer Hoffman's report with the circuit court in conjunction with his motion to suppress. The remaining facts may be found in the testimony of Officer Hoffman and a second Maple Bluff police officer, Officer Don Penly, at the suppression hearing.
¶ 8 Officer Penly and Officer Hoffman were the only persons who testified at the suppression hearing. The defendant did not controvert their testimony or the contents of Officer Hoffman's written report.
¶ 9 Officer Hoffman, and to a lesser extent Officer Penly, observed the defendant driving unlawfully and then crashing his vehicle at about 3:00 A.M. on Sunday, January 21, 2007. The circumstances relating to the defendant's unlawful driving and his crash are described below.
¶ 10 The crash left the defendant with substantial personal injuries and damage to his vehicle. The defendant's vehicle was on its roof when Officer Hoffman discovered it, its front end caved in. A utility pole was cut in two and hanging by its wires. Officer Hoffman heard loud music and a car alarm. The area reeked of gasoline, which poured through the defendant's car. Officer Hoffman immediately contacted dispatch, requesting the help of fire and emergency response services.
¶ 11 The defendant was no longer in his vehicle. Officer Hoffman found the defendant lying face-down on the sidewalk. Blood was running out of his mouth and nose. He was unconscious but was breathing and had a pulse. Officer Hoffman updated dispatch about the extent of the defendant's injuries.
¶ 12 Officer Hoffman did not search for evidence that the defendant was intoxicated. She testified that she did not try to smell the defendant for the odor of intoxicants, because gasoline was all over the accident scene; did not search the defendant's vehicle, because she perceived a risk that it would ignite; and did not perform a field sobriety test on the defendant, because the defendant was injured and unconscious. Officer Hoffman testified that her top priorities were to keep the defendant alive and to keep both the defendant and herself safe, rather than to investigate for evidence of a crime.
¶ 13 Officer Penly joined Officer Hoffman at the accident scene shortly after Officer Hoffman arrived. Officer Penly was off duty at the time but informed Officer Hoffman that he would go back on duty so that he could assist her. At the suppression hearing, Officer Penly supplied testimony describing the accident scene essentially as Officer Hoffman described it.
¶ 14 Officers from the Madison Police Department soon arrived and took control of the crash scene. The defendant was transported to the emergency room at the University of Wisconsin Hospital. Officer Hoffman and Officer Penly made a brief visit to the Maple Bluff Police Department and then drove to the emergency room to find the defendant.
¶ 15 At the emergency room of the hospital, multiple doctors and nurses were working on the defendant. Officer Penly and Officer Hoffman advised a nurse that they would need a legal blood draw. The nurse told them that they would have to wait until the defendant had been given a CT scan.
¶ 16 Officer Hoffman was able to see the defendant's driver's license at a nurse station. She learned from a Dane County agency that the defendant's driver's license was valid but that the defendant had a prior conviction for operating a motor vehicle while under the influence of an intoxicant.
¶ 17 When the defendant returned from his CT scan, a nurse informed Officer Hoffman that she needed to act fast if she wanted to get blood drawn. Medical personnel were frantically working on the defendant, who was still unconscious. Officer Hoffman formally placed the defendant under arrest for operating a vehicle while under the influence of an intoxicant.4 She then asked a nurse to draw blood from the unconscious defendant.5
¶ 18 Officer Hoffman had the defendant's blood tested for the presence of intoxicants.
¶ 19 A warrantless arrest is not lawful except when supported by probable cause.6 Probable cause to arrest for operating while under the influence of an intoxicant refers to that quantum of evidence within the arresting officer's knowledge at the time of the arrest 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.7 The burden is on the state to show that the officer had probable cause to arrest.8
¶ 20 The question of probable cause must be assessed on a case-by-case basis, looking at the totality of the circumstances.9 Probable cause is a "flexible, common-sense measure of the plausibility of particular conclusions about human behavior."10 When the facts are not disputed, 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.11 In determining whether there is probable cause, the court applies an objective standard, considering the information available to the officer and the officer's training and experience.12
¶ 21 In arguing that Officer Hoffman did not have probable cause to arrest him for operating a motor vehicle while under the influence of an intoxicant, the defendant asserts that many common indicators of intoxication did not exist in the present case: The defendant did not admit alcohol consumption. There were no odors of intoxicants, no slurred speech or difficulty balancing, no known visits to a bar, no inconsistent stories or explanations, no intoxicated traveling companions, no empty cans or bottles, and no suggestive field sobriety tests.13
¶ 22 The defendant contends that the time of the incident (3:00 A.M.) and the officers' observations of his driving, which the defendant characterizes as "erratic," represented the only potential evidence of intoxication.
¶ 23 We agree with the defendant that Officer Hoffman did not observe the common indicators of intoxication that law enforcement officers often detect when investigating whether a driver is intoxicated. Nevertheless, we conclude that the totality of circumstances within Officer Hoffman's knowledge at the time of the arrest would lead a reasonable police officer to believe, as Officer Hoffman and Officer Penly each believed in the present case, that the defendant was under the influence of an intoxicant while operating his vehicle....
To continue reading
Request your trial
-
State v. Blatterman
...law enforcement officer to believe that the defendant was operating a motor vehicle [at a prohibited alcohol concentration].”12 State v. Lange, 2009 WI 49, ¶ 19, 317 Wis.2d 383, 766 N.W.2d 551.1. Timing of arrest ¶ 30 In Wisconsin, the test for whether a person has been arrested is whether ......
-
State v. Tullberg
...basis. Smith, 308 Wis.2d 65, ¶¶ 34–35, 746 N.W.2d 243 ; State v. Ward, 2000 WI 3, ¶ 26, 231 Wis.2d 723, 604 N.W.2d 517 ; State v. Lange, 2009 WI 49, ¶¶ 42–43, 317 Wis.2d 383, 766 N.W.2d 551 (Ziegler, J., concurring); State v. Kennedy, 2014 WI 132, ¶ 21, 359 Wis.2d 454, 856 N.W.2d 834.23 Bec......
-
State v. Hess
...He could not have been arrested without a warrant because the defendant did not commit a crime. See Wis. Stat. § 968.07(1)(d); State v. Lange, 2009 WI 49, ¶ 19, 317 Wis.2d 383, 766 N.W.2d 551 ("A warrantless arrest is not lawful except when supported by probable cause."). The bench warrant ......
-
State v. Howes
...officer to believe that the defendant was operating a motor vehicle [at a prohibited alcohol concentration]." Id. (quoting State v. Lange , 2009 WI 49, ¶19, 317 Wis.2d 383, 766 N.W.2d 551 ). "The burden is on the state to show [it] had probable cause to arrest." Id. (internal quotation mark......
-
Probable cause and reasonable suspicion: arrests, seizures, stops and frisks
...Pfaff , 676 N.W.2d 572 (Wis. App. 2004) (erratic driving alone can support an arrest for operating under the inluence); State v. Lange , 766 N.W.2d 551 (Wis. 2009). HGN tests combined with a “fair” performance on ield sobriety tests and the smell of alcohol on a driver’s breath are suficien......
-
Probable Cause and Reasonable Suspicion: Arrests, Seizures, Stops and Frisks
...Pfaff , 676 N.W.2d 572 (Wis. App. 2004) (erratic driving alone can support an arrest for operating under the inluence); State v. Lange , 766 N.W.2d 551 (Wis. 2009). HGN tests combined with a “fair” performance on ield sobriety tests and the smell of alcohol on a driver’s breath are suficien......
-
Probable Cause and Reasonable Suspicion: Arrests, Seizures, Stops and Frisks
...Pfaৼ , 676 N.W.2d 572 (Wis. App. 2004) (erratic driving alone can support an arrest for operating under the inluence); State v. Lange , 766 N.W.2d 551 (Wis. 2009). HGN tests combined with a “fair” performance on ield sobriety tests and the smell of alcohol on a driver’s breath are su൶cient ......
-
Probable cause and reasonable suspicion: arrests, seizures, stops and frisks
...Pfaff , 676 N.W.2d 572 (Wis. App. 2004) (erratic driving alone can support an arrest for operating under the influence); State v. Lange , 766 N.W.2d 551 (Wis. 2009). HGN tests combined with a “fair” performance on field sobriety tests and the smell of alcohol on a driver’s breath are suffic......