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COURT OF APPEALS DECISION DATED AND FILED January 18, 2012 A. John Voelker Acting Clerk of Court of Appeals |
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NOTICE |
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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.� |
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����������� APPEAL from an order of the circuit court for Waukesha County:� william domina, Judge.� Affirmed.� ��
�1������� REILLY, J.[1]�� John J. Uttke appeals from an order of the circuit court affirming his municipal court revocation for refusing to submit to a blood test after he was arrested for operating a motor vehicle while intoxicated.� Uttke argues that the officer did not have probable cause to arrest him, and that regardless, his refusal was lawful because it was due to a head injury he sustained when he crashed his motorcycle.� We disagree on both counts and affirm his revocation.��
BACKGROUND
�2������� Uttke crashed his motorcycle on the evening of November 21, 2009.� Town of Mukwonago police officer Christopher Heckman responded to the dispatch call.� When Heckman arrived at the scene of the crash, Officer Chet Wilson informed Heckman that Uttke was the operator of the motorcycle and that Wilson smelled alcohol on Uttke.� Uttke was already in an ambulance being treated for injuries.� Heckman briefly investigated the scene and noted skid marks and blood marks near where Uttke�s motorcycle lay.� The ambulance took Uttke to the hospital and Heckman followed.
�3������� When Heckman first made contact with Uttke at the hospital he noted the smell of alcohol emanating from Uttke.� As Uttke was in a neck brace, Heckman was unable to perform a field sobriety test on him.� Heckman, however, placed Uttke under arrest for operating while intoxicated based on the accident scene and the fact that Uttke smelled like alcohol.� Heckman then read the informing the accused form to Uttke and asked if Uttke would submit to a blood test.� Uttke refused and Heckman issued him a notice of intent to revoke his operating privileges.
�4������� When a person is arrested for operating while intoxicated an officer may ask the person to provide a blood test.� Wis. Stat. � 343.305(3)(a).� If the person refuses, the officer shall issue a notice of intent to revoke the person�s operating privileges.� Sec. 343.305(9)(a).� The person may request a �refusal hearing� under � 343.305(9).� The four issues considered at the refusal hearing are: (1) whether the officer had probable cause to believe that the person was driving under the influence of alcohol; (2) whether the officer properly read the informing the accused form per � 343.305(4); (3) whether the person refused the test; and (4) whether the refusal was due to a physical disability unrelated to the person�s consumption of alcohol.� Sec. 343.305(9)(a)5.
�5������� A refusal hearing was held in municipal court.� Uttke contested parts one and four of the test, arguing that there was not probable cause to support his arrest for operating while intoxicated and that regardless, because of a head injury he suffered in the crash he did not knowingly refuse to take the blood test.� The municipal court found that there was probable cause to support the arrest and that nothing in the record indicated that Uttke was physically unable to take the test.� The court thus found that Uttke unlawfully refused to take the blood test.
�6������� Uttke appealed and requested a new refusal hearing before the circuit court.� The circuit court conducted a de novo review and affirmed the municipal court.� The circuit court first found that there was probable cause to arrest Uttke, as Uttke smelled of alcohol and was involved in a one-vehicle accident.� Next, the court found that there was not enough evidence to support Uttke�s argument that his refusal to take the blood test stemmed from a physical ailment.� While Uttke was treated for a head injury, the court found that he was still lucid enough to understand that he was refusing a blood test.
�7������� Uttke now appeals to this court.
STANDARD OF REVIEW
�8������� To arrest someone for operating a motor vehicle while
intoxicated, an officer must have probable cause.� Washington Cnty. v. Smith, 2008 WI
23, �14, 308 Wis. 2d 65, 746 N.W.2d 243.�
In the context of a refusal hearing, probable cause refers to the amount
of evidence that would lead a reasonable police officer to believe that the
person was operating a motor vehicle while intoxicated.� Id., �15.� Whether there was probable cause to arrest is
a question of law that we review de novo.�
Id., �16.� Additionally,
whether a person�s refusal to submit to a blood test was due to a physical
inability unrelated to the use of alcohol is a question of law that we review
de novo.� State v. Hagaman, 133
Wis. 2d 381, 383-85, 395 N.W.2d 617 (Ct. App. 1986).� Finally, we defer to the factual findings of
the circuit court.� See Wis. Stat. � 805.17(2).�
DISCUSSION
�9������� We first address whether Officer Heckman had probable cause to arrest Uttke.� In State v. Kasian, 207 Wis. 2d 611, 622, 558 N.W.2d 687 (Ct. App. 1996), the arresting officer came upon the scene of a one-vehicle accident.� The officer observed a damaged van next to a telephone pole with its engine still running.� Id.� The injured driver was lying next to the van and smelled like alcohol.� Id.� Later at the hospital, the officer observed that the driver�s speech was slurred.� Id.� We held that this evidence constituted probable cause that the driver was operating while intoxicated.� Id.�
�10����� As the facts of Kasian are similar to this case, we hold that Heckman had probable cause to arrest Uttke for operating while intoxicated.� Heckman came upon a one-vehicle accident and noted that there were skid marks and blood marks where Uttke crashed his motorcycle.� As Heckman arrived at the scene of the accident, he was informed by another officer that Uttke smelled like alcohol.� When Heckman first made contact with Uttke at the hospital, he confirmed for himself that Uttke smelled like alcohol.� A reasonable police officer in this position would conclude that Uttke was operating while intoxicated.
�11����� We next address whether Uttke�s refusal to take the required blood test was due to a physical ailment and not Uttke�s consumption of alcohol.� Wisconsin Stat. � 343.305(9)(a)5.c. provides that a person is deemed not to have refused a blood test �if it is shown by a preponderance of evidence that the refusal was due to a physical inability to submit to the test due to a physical disability or disease unrelated to the use of alcohol.�� Uttke has not met this burden.� The only evidence Uttke submits of his physical inability to refuse to take the test was that he had a head injury and that he thought the year was 2001.� Uttke did not, however, offer any medical evidence as to the extent of his head injury.� Furthermore, his confusion about the current year could have easily stemmed from inebriation.� We hold that the circuit court properly found that Uttke did not establish by a preponderance of the evidence that his refusal stemmed from a physical disability unrelated to the use of alcohol.
CONCLUSION
�12����� Uttke�s revocation for refusing to submit to a blood test is affirmed.�
By the Court.�Order affirmed.
����������� 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)(b) (2009-10).� All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.