|
COURT OF
APPEALS DECISION DATED AND
RELEASED January
4, 1996 |
NOTICE |
|
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62(1), Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-1650-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
KENNETH
E. HANSON,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Dane County: STUART A. SCHWARTZ, Judge.
Affirmed.
DYKMAN,
J. This is a single-judge appeal decided pursuant to § 752.31(2)(c),
Stats. Kenneth E. Hanson appeals from a judgment convicting him of
operating a motor vehicle while intoxicated, contrary to § 346.63(1)(a), Stats.
He asserts that the police did not have probable cause to arrest him
and, therefore, the trial court erred by denying his motion to suppress the
results of an intoxilyzer test showing his blood alcohol content to be
.11. We conclude that the police had
probable cause to arrest Hanson thereby permitting the intoxilyzer test to be
used as evidence against him. We,
therefore, affirm.
BACKGROUND
On
September 24, 1993, Hanson was driving a truck on Highway 18/151 in the Town of
Fitchburg. He stopped at a weigh
station to have his truck weighed and because the truck was overweight, he was
asked to park it and show the inspectors his papers and log book. Three inspectors noted a strong odor of
intoxicants on Hanson. Two of them
administered preliminary breath tests on him, the results of which were .16 and
.15. The inspectors took Hanson to the
Fitchburg Police Department where they administered an intoxilyzer test. The result was .11. The police issued him two citations for
violating § 346.63(1)(a) and (b), Stats.[1]
We
have taken these facts from two police reports which the parties stipulated
would form the record before the trial court.
The parties refer to other citations which are not of record. Rule
809.19(1)(d) & (e), Stats.,
require parties to cite the record to support facts and arguments. State v. Lass, 194 Wis.2d 592,
605, 535 N.W.2d 904, 909 (Ct. App. 1995).
We will not consider arguments that are not supported by the
record. Id. at 605-06,
535 N.W.2d at 909. A party wishing to
rely upon matters not in the record must move this court to supplement the
record. See Rule 809.14(1), Stats. Hanson has
failed to do this. We, therefore,
consider only the two citations we have mentioned.
DISCUSSION
Section
343.303, Stats., requires that a
law enforcement officer have probable cause to believe that a person has been
driving while intoxicated before requesting the driver to take a preliminary
breath test. However, if the driver is
operating a commercial vehicle while on duty and an officer detects any presence
of alcohol on the driver, the officer may request a preliminary breath
test. Id. This is because no one may drive a
commercial motor vehicle while having a measured alcohol concentration above
0.0. Section 346.63(7)(a)1, Stats.
Hanson
argues that his arrest for operating while intoxicated under § 346.63(1), Stats., was without probable cause
because the arrest could not have been for violating § 346.63(7). That is so, he asserts, because there is no
statutory provision for blood alcohol testing after an arrest for violating
§ 346.63(7). But Hanson only
assumes that the officers arrested him in order to determine whether they could
also cite him for a violation of § 346.63(1), Stats. The only
reason the police arrested Hanson and brought him to the Fitchburg Police
Department was to administer an intoxilyzer test. There is no record of a citation or an arrest for violating
§ 346.63(7). There are two
citations of record, one for violating § 346.63(1)(a) and one for
violating § 346.63(1)(b). The criminal
complaint includes two counts for violations of these same two paragraphs. The trial court dealt with these two charges
only. It said: "I will accept [Hanson's] plea at this
time. I will dismiss Count No. 2 of the
criminal complaint under 93-CT-1898. I
will adjudge the defendant guilty on Count 1." Because the citations, the complaint, the judge's comments and
the judgment of conviction do not show that Hanson was arrested for a violation
of § 346.63(7), we will not consider that charge further. But even if we were to do so, the result
would be the same.
The
police smelled intoxicants on Hanson while he was at the weigh station. The odor of intoxicants coupled with the
fact that Hanson was operating a commercial motor vehicle gave the police the
right, under § 343.303, Stats.,
to request a preliminary breath test.
They did so, and Hanson took two tests, the results of which were .15
and .16. These tests, plus the strong
odor of intoxicants, gave the police probable cause to arrest Hanson for a
violation of § 346.63(1)(b), Stats.
Hanson
cites County of Dane v. Sharpee, 154 Wis.2d 515, 519-20, 453
N.W.2d 508, 510-11 (Ct. App. 1990), as holding that a preliminary breath test
may not be the sole determinant of probable cause in an operating while
intoxicated case. But that is not what Sharpee
holds. In Sharpee,
a defendant charged with operating while intoxicated argued that a preliminary
breath test which showed a blood alcohol concentration of .01 negated a finding
of probable cause to arrest. Id.
at 518, 453 N.W.2d at 510. We
disagreed, and noted that a preliminary breath test was only one of several
facts which the arresting officer could consider. Id. at 820, 510 N.W.2d at 511. In that context, we noted: "The preliminary breath test is one of
several elements going into the existence of probable cause to arrest—it is
part of the `totality of circumstances' upon which the officer's determination
of probable cause must rest. It is not
the sole determinant." Id.
(footnote omitted).
This
quote from Sharpee cannot be taken out of the context of the
facts of that case. Probable cause is a
common sense, shorthand way of noting the relationship between cause and
effect. It is an inquiry into
likelihood. The very case upon which
Hanson relies describes probable cause:
As the very name implies, it is a test based on
probabilities; and, as a result, the facts faced by the officer "need only
be sufficient to lead a reasonable officer to believe that guilt is more than a
possibility." It is also a
commonsense test. The probabilities
with which it deals are not technical:
"[T]hey are the factual and practical considerations of everyday
life on which reasonable and prudent men [and women], not legal technicians,
act." Finally, courts will look to
the totality of the facts and circumstances faced by the officer at the time of
the arrest to determine whether he or she reasonably believed that the
defendant had committed an offense.
Id. at 518, 453 N.W.2d at 510 (citations and quoted sources omitted).
Based
on these considerations, we concluded that despite a low preliminary breath
test, the officer had probable cause to arrest the defendant for operating a
motor vehicle while intoxicated. The
preliminary breath test which suggested sobriety was outweighed by other
indicia of intoxication. A common sense
view of the Sharpee scene would be that through error or failure,
the preliminary breath test was dramatically inaccurate, or that Sharpee was
under the influence of something other than alcohol.
But
that is the exception. Preliminary
breath tests usually reflect, with fair but not perfect accuracy, the blood
alcohol concentration in a person's blood.
As Sharpee reveals, preliminary breath tests can sometimes
be substantially inaccurate. But a
preliminary breath test is sufficient for probable cause. By its very nature, probable cause deals
with probabilities. Probability is a
coarse sieve, leaving room for error.
Not all persons arrested on probable cause will be convicted at
trial.
In
Sharpee, the police officer who stopped the defendant's
automobile noticed a strong odor of intoxicants, slurred speech, bloodshot eyes
and a blank stare. Id. at
517, 453 N.W.2d at 509. Despite a
preliminary breath test indicating sobriety, the defendant was properly
arrested for operating while intoxicated.
Id. at 518-19, 453 N.W.2d at 510.
Here,
the facts are reversed. No field
sobriety tests were done. The only
information the officers had was a strong odor of intoxicants, leading to a
common sense belief that Hanson had recently consumed alcohol. The officers obtained two preliminary breath
tests which carry a presumption of rough accuracy. The tests read .15 and .16 respectively.[2] From this, the officers concluded that it
was probable that Hanson was operating his motor vehicle while intoxicated. We sustain this conclusion as reasonable.
Hanson
asserts that there was no evidence establishing the reliability of the
preliminary breath tests, no showing that the persons who administered the
tests were qualified to do so, nor any evidence that the preliminary breath
testing units were tested in accordance with administrative regulations. This assertion reflects Hanson's
misunderstanding of the concept of probable cause. It is possible that the preliminary breath tests were unreliable,
that the persons who administered them were unqualified and that the units were
untested. But it is not probable that
this was so. It is probable that the
legislature would not authorize the use of preliminary breath tests if the
results of those tests were inherently unreliable and haphazard. It is probable
that if preliminary breath tests were wholly inaccurate, this fact would have
been discovered by now. It is probable
that the persons who administered the tests have been trained and are qualified
to do so. A common sense knowledge of
law enforcement procedures buttresses this probability. Finally, because common sense and experience
tells us that administrative regulations are usually (though not always)
followed, we conclude that it is probable that the units were properly
tested. All that is necessary is that
guilt is more than a possibility. Id.
at 518, 453 N.W.2d at 510.
Hanson
also argues that State v. Swanson, 164 Wis.2d 437, 453-54 n.6,
475 N.W.2d 148, 155 (1991), and State v. Seibel, 163 Wis.2d 164,
471 N.W.2d 226, cert. denied, 502 U.S. 986 (1991), hold that something
more than the odor of intoxicants is necessary for probable cause to arrest for
operating while intoxicated. He asserts
that a preliminary breath test does nothing more than explain the odor of
intoxicants. But those cases involved
other indicia of intoxication, not preliminary breath tests. Thus, they do not support Hanson's argument.
Finally,
Hanson contends that if we affirm the procedure used by the police in this
case, the police will be administering tests to all commercial operators
without probable cause. But, under
§ 343.303, Stats., police
can administer preliminary breath tests to all commercial operators where the
police detect any presence of alcohol, a controlled substance or other drug, or
a combination thereof. Though Hanson decries this result, the legislature has
authorized this procedure and Hanson has not contested that statute's
validity. Accordingly, we affirm.
By
the Court.—Judgment affirmed.
Not
recommended for publication in the official reports. See Rule
809.23(1)(b)4, Stats.