State v. Swan

• Decision Date: 05 May 2016
• Docket Number: No. 2015AP1718–CR.,2015AP1718–CR.
• Citation: 370 Wis.2d 262,881 N.W.2d 359 (Table)
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Zachary W. SWAN, Defendant–Appellant.
• Court: Wisconsin Court of Appeals

370 Wis.2d 262
881 N.W.2d 359 (Table)

STATE of Wisconsin, Plaintiff–Respondent,
v.
Zachary W. SWAN, Defendant–Appellant.

No. 2015AP1718–CR.

Court of Appeals of Wisconsin.

May 5, 2016.

¶ 1 SHERMAN, J.¹

Zachary Swan appeals a judgment of conviction for operating a motor vehicle with a prohibited alcohol concentration (PAC), second offense. Swan contends that the arresting officer did not have probable cause to request that he perform a preliminary breath test (PBT) and that the results of that test, and any evidence obtained thereafter, should have been suppressed.

¶ 2 Upon Swan's motion for reconsideration, this court has withdrawn its prior opinion that affirmed the judgment on the grounds that Swan had not argued that the circuit court's denial of his motion to suppress on the basis of issue preclusion was erroneous. Swan argued in his reconsideration motion that in light of the fact that both he and the State failed to address the circuit court's apparent denial of Swan's motion on the basis of issue preclusion in their briefs on appeal, he should be permitted to do so. The State did not oppose Swan's motion. For the reasons discussed below, I affirm.

BACKGROUND

¶ 3 Swan was originally cited in municipal court with violation of Wisconsin's absolute sobriety law, Wis. Stat. § 346.63(2m) (which prohibits a person who has not attained the legal drinking age from driving with any alcohol concentration of more than zero but not more than 0.08) and PAC, first offense. Swan moved to suppress evidence obtained following his PBT on the basis that the officer who administered the PBT did not have probable cause to do so. The municipal court determined that the officer did not have probable cause to administer the PBT and granted Swan's motion.

¶ 4 The matter was appealed to the circuit court, for a trial de novo. Swan again moved to suppress evidence obtained following his PBT.

¶ 5 At the hearing on Swan's motion, the sole witness to testify was Officer Trenton Bowe. Officer Bowe testified that at approximately 2:36 a.m. on July 16, 2012, he was dispatched to a residence “for an entry in progress.” Officer Bowe testified that when he made contact with the owner of the residence, the owner's grandson, who he was informed was “not to be there,” ran out of the house. Officer Bowe testified that he chased after the grandson, who smelled of alcohol, and that he observed the grandson approach the driver's side of a running vehicle and say to the driver “[s]omething along the lines of just get out of here.” Officer Bowe testified that he informed the driver, who was later identified as Swan, not to leave and that after the grandson was caught, he returned to Swan's vehicle.

¶ 6 Officer Bowe testified that he identified Swan as the driver and ascertained that Swan was nineteen years old. Officer Bowe testified that Swan informed him that the grandson had asked him to drop the grandson off at the residence and to wait for him. Officer Bowe testified that he observed a “half empty Captain Morgan's bottle” on the back seat of Swan's vehicle, which Swan informed him belonged to the grandson. Officer Bowe also testified that Swan appeared to be “really nervous” and Swan's speech was “kind of muffled,” but that he did not observe the odor of intoxicants on Swan and Swan's eyes did not appear glossy.

¶ 7 In November 2013, the circuit court issued a decision and order denying Swan's motion to suppress. It is undisputed that after the circuit court denied Swan's motion to suppress, the municipal charges against Swan were dismissed.

¶ 8 In October 2014, the State filed a complaint charging Swan with PAC, second offense, in violation of Wis. Stat. § 346.63(1)(b), based on the same underlying acts as the originally charged first offense. See County of Walworth v. Rohner, 108 Wis.2d 713, 722, 324 N.W.2d 682 (1982) (State has exclusive authority to prosecute second offenses for drunk driving). In the second offense action, which is presently before this court on appeal, Swan moved the circuit court to suppress the results of his preliminary breath test (PBT) and evidence obtained following that test on the basis that there was no probable cause to administer the PBT.

¶ 9 The circuit court denied Swan's motion to suppress on the basis of issue preclusion, noting that the circuit court in the municipal action had already held a hearing and issued a decision in which the court determined that Officer Bowe had probable cause to administer the PBT, which was made part of this record, and that it was “not necessary” for Officer Bowe to testify as to facts of...