COURT OF APPEALS

DECISION

DATED AND FILED

 

March 26, 2014

 

Diane M. Fremgen

Clerk of Court of Appeals

 

 

 

NOTICE

 

 

This opinion is subject to further editing.� If published, the official version will appear in the bound volume of the Official Reports.�

 

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.� See Wis. Stat. � 808.10 and Rule 809.62.�

 

 

 

 

Appeal No.�

2013AP2725-CR

Cir. Ct. No.� 2013CT1063

STATE OF WISCONSIN�

IN COURT OF APPEALS

 

DISTRICT II

 

 

 

 

State of Wisconsin,

 

��������� Plaintiff-Appellant,

 

���� v.

 

Jeffrey D. Marker,

 

��������� Defendant-Respondent.

 

 

 

 

����������� APPEAL from a judgment of the circuit court for Winnebago County:� scott C. woldt, Judge.� Reversed.�

�1������� NEUBAUER, P.J.[1]   The State appeals from the dismissal of its case against Jeffrey D. Marker for operating a motor vehicle while under the influence of a controlled substance, second offense, contrary to Wis. Stat. � 346.63(1)(a).[2]� The circuit court dismissed the case without prejudice because it found that there was no evidence of intoxication in the complaint.� We reverse.

�2������� A complaint is sufficient if it states facts that, when taken together with the reasonable inferences therefrom, establish probable cause.� Lofton v. State, 83 Wis. 2d 472, 478, 266 N.W.2d 576 (1978).� �A complaint is sufficient if a fair-minded magistrate could reasonably conclude that the facts alleged justify further criminal proceedings and that the charges are not merely capricious.�� Id. (citation omitted).� �The sufficiency of a complaint is a matter of law� we review de novo.� State v. Adams, 152 Wis. 2d 68, 74, 447 N.W.2d 90 (Ct. App. 1989).

�3������� To convict someone of a controlled substance OWI, the State must prove:

1.      The defendant � (operated) a motor vehicle on a highway.

���� �.

2.      The defendant was under the influence of (name controlled substance) at the time the defendant � (operated) a motor vehicle.

���� �.

 

��������� ����The Definition of �Under the Influence�

���� �Under the influence� means that the defendant�s ability to operate a vehicle was impaired because of consumption of a controlled substance.

���� [Not every person who has consumed (name controlled substance) is �under the influence� as that term is used here.]� What must be established is that the person has consumed a sufficient amount of (name of controlled substance) to cause the person to be less able to exercise the clear judgment and steady hand necessary to handle and control a motor vehicle.

���� It is not required that impaired ability to operate be demonstrated by particular acts of unsafe driving.� What is required is that the person�s ability to safely control the vehicle be impaired.�

WI JI�Criminal 2664 (footnotes omitted).

�4������� The complaint charged Marker with OWI, second offense, and alleged that Marker �did operate a motor vehicle while under the influence of a controlled substance, contrary to [Wis. Stat. ��] 346.63(1)(a), 346.65(2)(am)2, 343.30(1q)(b)3.�� The complaint included a detailed report written by the arresting officer that included the following facts.� The officer received a call from dispatch regarding a citizen�s report of a reckless driver northbound on Hwy. 41.� The complainant indicated the vehicle had almost hit several vehicles.� The complainant provided the license plate number of the vehicle, and the officer ran that license plate and retrieved the year, make, model, and color of the vehicle.� The officer located the vehicle and followed it.� He observed the vehicle swerve within its lane and also observed that the vehicle had an obstruction hanging from the rearview mirror.� The officer stopped the vehicle and, upon making contact with the driver (Marker), noticed that Marker had �very slow and slurred speech.�� The officer noticed that Marker seemed impaired.� When the officer told Marker that there had been a call about his reckless driving, Marker told the officer that �he had already gotten stopped earlier that day for similar driving behavior � and was given a warning.�� Marker told the officer that he was taking several prescription medications and even gave the officer a list of those medications, which included, among others, Dilantin, Chlordizep, Topamax, Keppra, Crestor, Plavix and Oxycodone, Diazepam and Lorazepam as needed.� The officer conducted field sobriety tests, during which Marker exhibited poor balance and difficulty following the instructions.� The officer then placed Marker under arrest for OWI, after which Marker was taken to the hospital.� Marker was evaluated by a drug recognition expert, who opined that Marker �was under the influence of CNS [central nervous system] depressants and was unable to operate a motor vehicle safely.�� The results of the blood test taken at the hospital are included in the complaint and show that Marker�s blood tested positive for Phenytoin, Topiramate, Oxazepam, Lorazepam, Chlordiazepoxide and Nordiazepam.

�5������� The circuit court found that �[t]here�s absolutely nothing in this Complaint showing intoxication� and dismissed the complaint.� In our de novo review, we conclude that the complaint states more than enough facts to establish probable cause for charging Marker with controlled substance OWI.� We need not reiterate all the facts; the officer observed several signs of operating while under the influence of a controlled substance, i.e., that Marker�s ability to drive safely was impaired, and his conclusion that Marker was under the influence was confirmed by the evaluation of the drug recognition expert and the blood analysis.

�6������� Marker�s only argument on appeal is that the blood report�s indication that the drugs were found at �low therapeutic concentration� means that the other facts alleged do not add up to probable cause.� We disagree.� Slurred speech, the call from the complainant about erratic driving, Marker�s own voluntary admission to the officer that Marker had been pulled over earlier that day, the poor performance on the field sobriety tests�these are sufficient to establish probable cause even without the blood test results.� Furthermore, that the drugs were at low therapeutic levels does not mean that they could not have an impairing effect in combination.� The significance of the drugs� levels would be a question for trial, not a detail that renders the rest of the alleged facts meaningless and strips the complaint of probable cause.

�7������� We reverse.

����������� By the Court.�Judgment reversed.

����������� This opinion will not be published.� See Wis. Stat. Rule 809.23(1)(b)4.

 

 


[1]  This appeal is decided by one judge pursuant to Wis. Stat. � 752.31(2)(c) (2011-12).� All references to the Wisconsin Statutes are to the 2011-12 version unless otherwise noted.

[2]  Wisconsin Stat. � 346.63(1)(a) provides, in relevant part:

���� (1)� No person may drive or operate a motor vehicle while:

���� (a) Under the influence of an intoxicant, a controlled substance, a controlled substance analog or any combination of an intoxicant, a controlled substance and a controlled substance analog, under the influence of any other drug to a degree which renders him or her incapable of safely driving, or under the combined influence of an intoxicant and any other drug to a degree which renders him or her incapable of safely driving �.