On Point: 4. Probable cause to arrest

State v. Terry Sanders, 2017AP636-CR, District 3, 1/9/18 (one-judge decision; ineligible for publication); case activity (including briefs)

Sanders challenges his arrest for OWI, saying the officer lacked probable cause based on a “mixed bag” of facts that included inconclusive field sobriety tests and things an officer “would likely see [being done] by day by sober folks.” (¶9). The court of appeals does not agree.

State v. Travis J. Rose, 2018 WI App 5; case activity (including briefs)

A police officer investigating reports of Rose’s erratic driving concluded Rose was not intoxicated by alcohol, but continued to detain him and, after securing consent, searched Rose’s car, where he found narcotics. The court of appeals holds the officer’s continued detention of Rose, and thus the consent to search the car, were lawful because the officer had reasonable suspicion to continue his investigation.

State v. Sarah A. Schmidt, 2017AP724-CR, District 2, 10/11/17 (one-judge decision; ineligible for publication); case activity (including briefs)

For operating while intoxicated, no less—even though there was scant evidence of impaired driving and the driver exhibited no slurred speech and apparently normal balance and motor coordination.

State v. Denton Ricardo Ewers, 2016AP1671-CR, 8/22/2017, District 3 (not recommended for publication); case activity (including briefs)

An employee at Family Dollar called the police to report that man who appeared “dazed and confused” and whose breath smelled of intoxicants had come into the store before leaving in a gold Ford Focus and heading west. An officer looked for the Focus but could not find it. Two hours later, the employee called back to say the same man, still “dazed and confused,” had once again been in the store, and once again had departed to the west in his gold Ford Focus. This time, the officer located the car and stopped it. The driver, Ewers, seemed intoxicated, which he eventually proved to be.

State v. Jarred S. Martens, 2016AP2384, District 4, 7/13/17 (one-judge decision; ineligible for publication) case activity (including briefs)

Martens argues police didn’t have probable cause to arrest him for OWI because he didn’t do field sobriety tests and the absence of those tests means the state has to point to other, especially significant evidence to support probable cause. The court of appeals says the law doesn’t support this proposition, and even if it did there was enough evidence to arrest Martens.

State v. David W. Howes, 2017 WI 18, on certification from the court of appeals; case activity (including briefs)

The supreme court granted certification in this case to decide an important question: Does Wisconsin’s implied consent statute create a categorical “consent” exception to the warrant requirement as to unconscious drivers, thus allowing police to collect blood without having to get a warrant or establish exigent circumstances or some other exception? But the court doesn’t answer that question, leaving the law in a muddle. On top of that, the court reverses the circuit court’s suppression order, though without a majority agreement as to why the blood draw was legal, and with some justices invoking a theory the state didn’t argue in the circuit court.

State v. Michael Chough, 2016AP406-CR, District 2, 1/25/17 (one-judge decision; ineligible for publication); case activity (including briefs)

Chough’s challenge to the reliability of expert testimony regarding his blood alcohol content at the time he was driving fails under State v. Giese, 2014 WI App 92, 356 Wis. 2d 796, 854 N.W.2d 687.

State v. Jimmie C. Johnson, 2015AP1233-CR, 2015AP2260-CR, 1/11/17, District 1 (not recommended for publication); case activity (including briefs)

When J.T. stepped out of her car in the parking lot of the West Allis Chuck E. Cheese she spotted a purple “Crown Royal” bag outside the driver’s door of the Chevy Tahoe next to her. It contained 69 aluminum foil folds. She took a photo of the license plate, went into the Chuck E. Cheese where she watched man get into the Tahoe, drive off, turn around, return to the parking spot and search for something. He then when into the Pet World next door where a video camera captured him searching for something.

Washington County v. Daniel L. Schmidt, 2016AP908, District 2, 11/30/16 (one-judge decision; ineligible for publication); case activity (including briefs)

Schmidt makes a three-pronged attack on the revocation of his driving privileges for refusing a chemical test, arguing he was seized without reasonable suspicion, arrested without probable cause, and did not improperly refuse a test. The court of appeals rejects each claim.

Village of Bayside v. Amber E. Schoeller, 2016AP256 & 2016AP257, District 1, 8/9/16 (one-judge decision; ineligible for publication); case activity (including briefs)

The circuit court’s factual findings—which Schoeller doesn’t argue are clearly erroneous—doom her claims that the officer didn’t have probable cause to arrest her and that the evidence isn’t sufficient to prove she’s guilty of OWI.