COURT OF APPEALS DECISION DATED AND FILED December 9, 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
from a judgment of the circuit court for
¶1 BROWN, C.J.[1] Allen S. Bingham appeals the revocation of his operating privileges for operating while intoxicated on grounds that the arresting officer lacked probable cause to believe that he was “operating” the vehicle. He asserts that he did not drive the vehicle to where it was found and presents plausible, innocent scenarios that could have been the case. But the facts are that the officer found Bingham slouched down alone in the driver’s seat of a running vehicle on the side of the road with no room for anyone to sit in the passenger seat and no one around that could have driven the vehicle to where it was stopped. These are more than sufficient facts from which the officer could infer that Bingham “operated” the vehicle. The law does not require the officer to rule out all innocent explanations before establishing probable cause. We therefore affirm.
¶2 While on patrol a little after midnight, an officer drove
past a vehicle parked in a lane of traffic with its engine running and its headlights
on. He did not see anybody in it. He found this suspicious and thought someone
might be in the nearby marina looking at the boats or perhaps trying to steal
something. So he took a few seconds to drive
through the marina parking lot. When he
did not see anybody there, he pulled behind the vehicle again and approached it
from the passenger side. He still did
not see anybody. But as he looked in
further, he saw a man in the driver’s seat.
That man was Bingham. He was slid
down so low with his chin down on his chest that the officer could not see him
from behind the truck. The officer also
noticed the passenger side was filled with two laptop computers and other items
suggesting that there had not been anyone else in the vehicle that could have
driven it to where it was now parked.
¶3 The officer then made contact with Bingham. Bingham turned the vehicle off, pulled the
keys out, and said that he was not driving.
Bingham stated that he drove to Two Rivers from
¶4 Bingham appeals on the narrow issue of whether there was
sufficient evidence that he was “operating” the vehicle. When reviewing the sufficiency of the evidence
to support a conviction in circumstantial evidence cases, we may not substitute
our judgment for that of the trier of fact unless the evidence, viewed most
favorably to the verdict, is so lacking in probative value and force that no
trier of fact, acting reasonably, could have found the requisite guilt. State
v. Poellinger, 153
¶5
¶6 In Proegler, the defendant argued that
sleeping behind the steering wheel in a car, with the keys in the ignition and
the motor running, on the side of a highway did not fall within the statutory
definition of “operate.”
[a]n intoxicated person seated behind the steering wheel of a motor vehicle is a threat to the safety and welfare of the public. The danger is less than that involved when the vehicle is actually moving, but it does exist. While at the precise moment defendant was apprehended he may have been exercising no conscious volition with regard to the vehicle, still there is a legitimate inference to be drawn that defendant had of his choice placed himself behind the wheel thereof, and had either started the motor or permitted it to run. He therefore had the “actual physical control” of that vehicle, even though the manner in which such control was exercised resulted in the vehicle’s remaining motionless at the time of his apprehension.
¶7 Like the defendant in Proegler, Bingham may not have been
exercising conscious volition with regard to the vehicle at the moment he was
found behind the steering wheel of a running vehicle. However, one “could reasonably infer that the
car was where it was and was performing as it was because of [Bingham’s]
choice, from which it followed that [Bingham] was in ‘actual physical control’
of and so was ‘operating’ the car while he slept.” See id.
at 628 (citation omitted). As the Proegler court concluded, “[i]t
is in the best interests of the public and consistent with legislative policy
to prohibit one who is intoxicated from attempting to get behind the wheel
rather than to make a fine distinction once such a person is in the position to cause considerable harm.”
¶8 Bingham repeatedly claimed that someone else drove the
vehicle to that location and makes that same argument to the trial court and to
this court on appeal. He cites to Village of Cross Plains v. Haanstad, 2006 WI 16, ¶¶17-21, 288
the evidence here is undisputed that Haanstad did not drive the car to the point where the officer found her behind the wheel.... The Village offered no circumstantial evidence to prove that Haanstad had operated the vehicle. The Village does not contest that [Haanstad’s friend] was the individual who “operated” the vehicle by driving it, placing it in park, and leaving the motor running.
Haanstad,
288
¶9 But recently, we noted that Haanstad’s
applicability is limited to
instances where there is undisputed evidence that a person other than the
defendant had driven the vehicle. State
v. Mertes, 2008 WI App 179, ¶13
n.5, 315
¶10 Though Bingham claims he did not drive the vehicle, his only
evidence in support is that he was in a company vehicle, the ownership of the
items in the passenger seat was unknown to the officer, and some time passed
between when the officer first saw the vehicle and when the officer approached
the vehicle and found Bingham behind the wheel.
Bingham appears to argue that the officer had to rule out every
reasonable theory of innocence which might stem from these facts before probable
cause can be established. But probable cause may exist notwithstanding a possible innocent explanation for the defendant’s conduct.
¶11 Repeating what we detailed at the top, the facts here are that the officer found Bingham slouched behind the wheel of a vehicle with its engine running and its lights on. No one else was found in the vehicle or in the area. There also would not have been any room for anyone to have been in the passenger seat. And Bingham indicated that he was searching for a hotel or motel, suggesting that he had been driving on his way and had pulled over, parking the vehicle where the officer found it. His stance and odor provided reasonable grounds for believing that he was intoxicated. These facts provided sufficient evidence from which the officer could infer that Bingham had “operated” the vehicle while under the influence of an intoxicant, in violation of Wis. Stat. § 346.63(1). We affirm.
By the Court.—Judgment affirmed.
This opinion will not be published in the official reports. 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) (2007-08). All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.