State v. Schindler (In re Schindler)

• Docket Number: 2023AP755
• Decision Date: 25 January 2024
• Parties: In the matter of the refusal of Jacob Karl Schindler: v. Jacob Karl Schindler, Defendant-Appellant. State of Wisconsin, Plaintiff-Respondent,
• Court: Wisconsin Court of Appeals

1

In the matter of the refusal of Jacob Karl Schindler:

State of Wisconsin, Plaintiff-Respondent, v. Jacob Karl Schindler, Defendant-Appellant.

No. 2023AP755

Court of Appeals of Wisconsin, District IV

January 25, 2024

This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)4.

APPEAL from an order of the circuit court for Jefferson County No 2023TR124, BENNETT J. BRANTMEIER, Judge. Affirmed.

TAYLOR, J. ^[1]

¶1 Jacob Karl Schindler appeals an order of the Jefferson County Circuit Court revoking his operating privileges based on his refusal to submit to chemical testing of his blood pursuant to Wisconsin's implied consent law. On appeal, Schindler argues that his operating privileges should not have been revoked because the arresting deputy lacked probable cause to arrest him for operating a motor vehicle while under the influence of alcohol. I conclude that the deputy had probable cause to believe that Schindler had operated a motor vehicle while under the influence of alcohol. Accordingly, I affirm the decision of the circuit court revoking Schindler's operating privileges.

BACKGROUND

¶2 Around 11:30 p.m. on January 7, 2023, Deputy Ehrin Eisenberg of the Jefferson County Sheriffs Department was dispatched to investigate a report of a vehicle that had run off the road. When Eisenberg arrived, he observed a vehicle 50 to 75 feet down a ravine on the side of the road. Based on the location of the vehicle, Eisenberg believed that the vehicle ran through a stop sign at a three-way "T-intersection" before driving off the road and down the ravine.

¶3 When Eisenberg exited his squad car, he heard "engines revving" from the vehicle, as though the driver was spinning the vehicle's wheels in the mud. With another deputy, Eisenberg walked to the vehicle and made contact with the driver, who he later learned was Schindler. Eisenberg smelled alcohol coming from the vehicle and observed that Schindler's eyes were bloodshot and glassy and that his speech was slurred. A dog was the only other occupant in the vehicle.

¶4 Eisenberg repeatedly asked Schindler to turn off the vehicle and Schindler eventually complied. Eisenberg then asked Schindler to step out of the vehicle, but Schindler refused to do so. Eisenberg also asked Schindler whether he had consumed any alcohol, but Schindler stated that he refused to answer any questions. Eisenberg opened the door to the vehicle and again asked Schindler to step out. Schindler again refused. Schindler then began reaching for a pen, but Eisenberg grabbed Schindler's hand and pulled him from the vehicle before he could do so.

¶5 With the other deputy, Eisenberg assisted Schindler to his feet and held him against Schindler's vehicle. Eisenberg asked Schindler to place his hands behind his back, but Schindler refused to do so. Eisenberg managed to handcuff one of Schindler's hands, but Schindler was grabbing the top rail of the vehicle with his other hand and would not allow Eisenberg to handcuff that hand. Eisenberg delivered several knee strikes to the back of Schindler's leg and was then able to handcuff both of Schindler's hands behind his back. During this struggle, Eisenberg called for additional backup support.

¶6 Once handcuffed, Eisenberg held Schindler against Schindler's car until the backup officer arrived a few minutes later, and then walked Schindler to Eisenberg's squad car and placed him in the vehicle while he was still handcuffed. Eisenberg did not tell Schindler that he was under arrest. According to Eisenberg, Schindler was being detained at that point as part of the officers' ongoing investigation and due to his uncooperative behavior.

¶7 While Schindler was sitting in the squad car, one of the other officers at the scene asked Schindler to perform standardized field sobriety tests, and Schindler refused. Schindler was not asked to conduct a preliminary breath test. After Schindler refused the field sobriety tests, Eisenberg informed Schindler that he was under arrest for operating a vehicle while intoxicated. At some point, Eisenberg learned that Schindler had three prior convictions for operating a vehicle while intoxicated (OWI) or having a prohibited alcohol concentration (PAC). As a result, Schindler was legally prohibited from operating a vehicle with a PAC greater than 0.02. However, it is not clear from the record whether Eisenberg learned of Schindler's prior convictions before he told Schindler that he was being arrested.

¶8 Eisenberg then read Schindler the "Informing the Accused" form and requested that Schindler submit to an evidentiary chemical test of his blood. Schindler refused. At that point, Eisenberg obtained a search warrant for a blood draw and transported Schindler to a hospital for the draw. The results of the blood test showed that Schindler had a blood alcohol concentration of 0.234.

¶9 Schindler was charged with refusing to submit to a chemical test contrary to WIS. STAT. § 343.305(9).^[2] At the refusal hearing, Eisenberg testified about the events of Schindler's arrest as set forth above. The circuit court determined that Eisenberg had probable cause to believe that Schindler was operating a motor vehicle while under the influence of alcohol because Schindler smelled of alcohol, had slurred speech, had bloodshot and glassy eyes, and there was a one-car accident. The court also found that Eisenberg properly read the Informing the Accused form to Schindler and that Schindler refused to submit to testing. As a result, the court entered an order revoking Schindler's operating privileges. Schindler appeals.^[3]

DISCUSSION

I. Wisconsin's Implied Consent Statute.

¶10 WISCONSIN STAT. § 343.305 provides that any person who drives or operates a motor vehicle on a public roadway in Wisconsin is deemed to have given their "implied consent" to chemical testing of a sample of their blood, breath, or urine if they are arrested for an OWI-related offense.^[4] Sec. 343.305(2), (3)(a). A law enforcement officer who arrests a driver for an OWI-related offense and seeks chemical testing pursuant to the implied consent law is required to read the Informing the Accused script to the driver. Sec. 343.305(4).^[5]

¶11 If the person refuses to submit to chemical testing, the person is informed that the State intends to immediately revoke their operating privileges and that they may request a refusal hearing in court. WIS. STAT. § 343.305(9)(a). The issues that a defendant may raise during a refusal hearing are limited by statute to those set forth in § 343.305(9)(a)5. One of the issues that may be raised is "[w]hether the officer had probable cause to believe the person was driving or operating a motor vehicle while under the influence of alcohol ... and whether the person was lawfully placed under arrest for violation of [an OWI-related statute]." Sec. 343.305(9)(a)5.a.

¶12 A circuit court's "[f]indings of fact shall not be set aside unless clearly erroneous." WIS. STAT. § 805.17(2). Here, the parties do not dispute the "pertinent" facts that were set forth at the refusal hearing through Eisenberg's testimony. For this reason, I only address the legal question of whether there was probable cause to arrest Schindler, which I review independently. See State v. Woods, 111 Wis.2d 701, 710, 345 N.W.2d 457 (1984) ("If the historical facts are undisputed, probable cause for an arrest is a question of law that is subject to independent review on appeal, without deference to the trial court's conclusion.").

II. Eisenberg Had Probable Cause to Believe Schindler Was Operating a Vehicle Under the Influence of Alcohol.

¶13 On appeal, Schindler argues that the circuit court erred in revoking his driving privileges for refusing to permit chemical testing of his blood because Eisenberg did not have probable cause at the time of arrest to believe that Schindler had been operating a motor vehicle under the influence of alcohol. Schindler contends that his arrest occurred when he was placed in Eisenberg's squad car while handcuffed and, as a result, that his refusal to perform field sobriety testing may not be considered in determining whether there was probable cause to believe that he had been driving under the influence of alcohol. The State responds that Schindler was not arrested until after he refused to perform field sobriety testing. According to the State, Schindler had been handcuffed and placed in Eisenberg's squad car due to Schindler's failure to cooperate in the deputy's investigation.

¶14 I begin by addressing the timing of Schindler's arrest.

A. Timing of the Arrest.

¶15 In Wisconsin, "the test for whether a person has been arrested is whether a 'reasonable person in the defendant's position would have considered himself or herself to be 'in custody,' given the degree of restraint under the circumstances.'" State v. Blatterman, 2015 WI 46, ¶30, 362 Wis.2d 138, 864 N.W.2d 26 (citation omitted). "The circumstances of the situation including what has been communicated by the police officers, either by their words or actions, shall be controlling under the objective test." Id. (citation omitted).

¶16 "[A] police officer may, under certain circumstances temporarily detain a person for purposes of investigating possible criminal behavior even though there is not probable cause to make an arrest." Id., ¶18 (citing Terry v. Ohio, 392 U.S. 1, 22 (1968)); WIS. STAT. § 968.24. A temporary investigative detention "requires a reasonable suspicion, grounded in 'specific and articulable facts,' and reasonable inferences from those facts, that an individual was engaging in illegal activity." State v. Pickens, 2010 WI.App. 5, ¶14, 323 Wis.2d 226, 779 N.W.2d 1 (2009) (citing Terry, 392 U.S. at 21). Additionally, the "investigative means" used in...