COURT OF APPEALS DECISION DATED AND FILED July 8, 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 |
IN COURT OF APPEALS |
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DISTRICT II |
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State of
Plaintiff-Respondent, v. Craig J. Immel, Defendant-Appellant. |
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APPEAL from a judgment of the
circuit court for
¶1 SNYDER, J.[1] Craig J. Immel appeals from a judgment of conviction for operating a motor vehicle while under the influence of an intoxicant, third offense. He contends that his arrest was not supported by probable cause and was therefore illegal. We disagree and affirm the judgment.
¶2 At approximately 1:50 a.m. on March 25, 2007,
¶3 An ambulance arrived and Immel was taken to St. Agness Hospital. Deike went to St. Agnes also, to continue his investigation. At the hospital, Immel was conscious and speaking to other people. Deike identified himself to Immel, and Immel turned away and would not answer any questions. Based upon the one-car accident investigation and the odor of intoxicants on Immel, Deike placed him under arrest for OWI.
¶4 Immel argues that Deike did not have probable cause to effect an arrest. He asserts that the accident, the odor of intoxicants, and the time of day that the accident occurred were insufficient to justify his arrest. In particular, Immel takes issue with Deike’s failure to administer field sobriety tests.
¶5 Probable cause exists where the totality of the circumstances
within the officer’s knowledge at the time would lead a reasonable officer to
believe a violation of the law has occurred.
State v. Nordness, 128
¶6 Immel contends that Deike did not articulate sufficient facts
to establish probable cause and that the officer needed an objective factor
such as a field sobriety test or an objective sign of physical impairment. He cites to State v. Swanson, 164
Unexplained erratic driving, the odor of alcohol, and the coincidental time of the incident form the basis for a reasonable suspicion but should not, in the absence of a field sobriety test, constitute probable cause to arrest someone for driving while under the influence of intoxicants. A field sobriety test could be as simple as a finger-to-nose or walk-a-straight-line test. Without such a test, the police officers could not evaluate whether the suspect’s physical capacities were sufficiently impaired by the consumption of intoxicants to warrant an arrest.
Swanson, 164
¶7 However, as the State points out, the language in Swanson
has since been qualified. See Kasian, 207
¶8 Immel further emphasizes that Deike did not testify as to whether Immel was able to speak clearly to hospital staff or to whether Immel’s eyes were glassy or bloodshot. Immel implies that there were additional observations that Deike could have made that may have contributed to the totality of circumstances demonstrating probable cause. With this, we agree. There are additional indicators of intoxication that often serve as precursors to an OWI arrest. However, Immel offers no case law to support his position that without all of these observations, probable cause cannot exist. Our task is to consider whether probable cause can derive from the factors the officer did articulate, not to ponder those he did not.
¶9 Probable cause in the context of an OWI arrest may be
demonstrated in many ways. Here, Deike
observed a serious single car accident that occurred close to bar time and that
involved a person who smelled of intoxicants. That is sufficient to lead a reasonable
officer to believe a violation of the law has occurred. See Kasian, 207
By the Court.—Judgment 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)(f) (2007-08). All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.