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COURT OF APPEALS
DECISION
DATED AND FILED
March 11, 2009
David
R. Schanker
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 No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT II
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County of Winnebago,
Plaintiff-Respondent,
v.
Jack W. Roepke,
Defendant-Appellant.
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APPEAL
from a judgment of the circuit court for Winnebago County: Thomas
J. Gritton, Judge. Affirmed.
¶1 BROWN, C.J. Jack
W. Roepke appeals his operating while intoxicated conviction by claiming that
probable cause to arrest was largely based on a positive Preliminary Breath
Test (PBT) reading and that, because the deputy lacked the threshold facts that
must exist before a law enforcement officer may request a PBT, there was
insufficient probable cause. But we hold
that since Roepke was in a roll-over accident while speeding, had alcohol on
his breath, and admitted to drinking, there existed “a quantum of proof greater
than the reasonable suspicion necessary to justify an investigative stop … but
less than the level of proof required to establish probable cause for arrest.” County of Jefferson v. Renz, 231 Wis. 2d 293, 316, 603 N.W.2d 541 (1999). Thus, under Renz, the deputy had
authority to request that Roepke take a PBT. We affirm.
¶2 A Winnebago county sheriff’s deputy responded to a report of
a traffic accident near the intersection of U.S. Highways 10 and 441 at the Racine Street
off-ramp on December 8, 2007. Upon
arriving, the deputy saw car parts across one lane of traffic, a vehicle that
was pulled over on the side of the road and another vehicle which was upside
down, in the gorge area between the highways and the ramp. The driver of the car in the ditch had
extricated himself from the vehicle and was identified as Roepke. Roepke told the deputy that he was going seventy
miles per hour and lost control of his vehicle, but was unsure how. He also admitted that he had drunk about two
beers prior to driving his vehicle. The
deputy smelled the odor of alcohol on him.
It was determined that he was in need of medical assistance and
therefore the deputy decided that field sobriety tests would not be appropriate
because his dexterity was impaired from the collision. Instead, Roepke administered a PBT test which
showed a 0.179 blood alcohol content. Then,
while Roepke was in the ambulance, waiting to be conveyed to the hospital, the
deputy informed him that he was under arrest for operating while
intoxicated.
¶3 Renz is the law regarding the use of PBTs. In that case, the supreme court held that a
law enforcement officer is not required to have probable cause as a condition
precedent to asking a suspect to submit to a PBT. Renz, 231 Wis. 2d at 295. Rather, when a law enforcement officer has
facts that are stronger than those justifying an initial stop but not enough
facts to determine whether the driver was driving while intoxicated, then the
PBT may be used as a “tool to determine whether to arrest a suspect and to
establish that probable cause for an arrest existed.” Id.
at 304.
¶4 In Renz, the defendant was
stopped because of loud exhaust coming from his vehicle. Id.
at 296. During the initial conversation,
the officer smelled a strong odor of alcohol.
Id. The defendant admitted that he had three
beers earlier in the evening and, when asked, agreed to perform field sobriety
tests. Id. at 296-97. The defendant recited the alphabet correctly,
his speech was not slurred, and he exhibited only one of four possible clues of
intoxication in the one-legged stand test and two of eight possible clues of
intoxication in the heel-to-toe test. Id. at
297-98. He did not do all that well on
the finger-to-nose test and fared worst with the horizontal gaze nystagmus
test, where he exhibited all six clues for intoxication. Id. at
298. The supreme court decided that,
given the mixed results and because the defendant “was able to substantially
complete all of the tests,” the officer was in that grey area between
reasonable suspicion to stop and probable cause for an arrest which justified
giving the PBT. Id. at 316-17.
¶5 Roepke argues that he was not in that grey area. He points out, unlike the facts in Renz,
no field sobriety tests were given and all the deputy really had to go on was
the odor of intoxicants on his breath. He
cites State v. Swanson, 164 Wis.
2d 437, 453 n.6, 475 N.W.2d 148 (1991), abrogated
on other grounds by State v. Sykes,
2005 WI 48, 279 Wis. 2d 742, 695 N.W.2d 277, for the proposition that
unexplained erratic driving, an odor of alcohol and the coincidental time of
the incident may provide reasonable suspicion, but do not, in the absence of
any other evidence, rise to the level of probable cause. He apparently suggests that Swanson
should also be read to prohibit a law enforcement officer from using those same
facts in an effort to jump from the reasonable suspicion level to the
intermediate level between reasonable suspicion and probable cause.
¶6 We have five responses to Roepke’s attempt to make this a Swanson-controlled
case. First, the proposition from Swanson
that Roepke wants us to use is from a footnote that really had nothing
whatsoever to do with the issues in the case itself. See Swanson, 164 Wis. 2d at 453 n.6. In fact, a careful reading of Swanson
shows that the supreme court specifically stated it was not addressing whether
there was probable cause to arrest for operating under the influence: “[W]e need not address whether probable cause
existed to arrest Swanson for any of the other offenses [aside from possession
of a controlled substance].” Id. at
453. The footnote was obiter dictum and we decline to follow it.
Second, the dictum did not discuss how the hypothetical facts contained
therein would find usefulness in a PBT situation such as what we have
here. Third, later cases establish that
the totality of the circumstances test is the correct analysis for deciding
whether probable cause to arrest existed.
State v. Koch, 175 Wis.
2d 684, 701, 499 N.W.2d 152 (1993).
Fourth, we have concluded that probable cause to arrest, over and above
any grey area, may exist even if there were no field sobriety tests. See,
e.g., State v. Kasian, 207 Wis. 2d 611, 621, 622,
558 N.W.2d 687 (Ct. App. 1996). Fifth,
more than erratic driving occurred in this case. The vehicle had gone off the road and
overturned. Roepke admitted he had lost
control and could not explain why. This
makes the situation much more serious than the mere “erratic driving” comment
by the supreme court in its dictum.
¶7 Wisconsin courts speak of
probable cause as a commonsense concept. It is judged by the factual and practical
considerations of everyday life on which reasonable and prudent persons, not
legal technicians, act. State
v. Truax, 151 Wis.
2d 354, 360, 444 N.W.2d 432 (Ct. App. 1989).
As a result, it is not possible to compare cases and generic
hypotheticals with dissimilar facts and draw a conclusion as to whether
probable cause exists. The same can be
said for that grey area in between reasonable suspicion to stop a vehicle and
probable cause to arrest.
¶8 We are satisfied that based on the facts of this case, the
deputy made a commonsense decision that he was in a grey area with respect to
whether to charge Roepke with operating while intoxicated. The deputy observed the severity of the
collision and smelled alcohol on Roepke.
Roepke told the deputy that he had been travelling at seventy miles per
hour, did not know why he lost control of his vehicle, and had been
drinking. Roepke could not perform field
sobriety tests because of his medical condition. Once the deputy determined that these facts
left him in that grey area, he had every right to request that Roepke take the
PBT so that he could have some degree of certainty, one way or the other, about
whether to arrest. We affirm.
By the Court.—Judgment
affirmed.
This opinion will not be published. See
Wis. Stat. Rule 809.23(1)(b)4.