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State v. Hansen3/16/2000
APPEAL from a judgment of the circuit court for Richland County: EDWARD E. LEINEWEBER, Judge. Reversed and cause remanded with directions.
Chad Hansen appeals from a judgment of conviction for operating a motor vehicle while under the influence of an intoxicant (OMVWI). He asserts that the officer who arrested him had insufficient evidence to do so. We agree, and therefore reverse and remand, with instructions to grant Hansen's motion to suppress evidence of his blood test.
. At about midnight on January 10, 1998, Deputy Rick Wickland of the Richland County Sheriff's Department was dispatched to a one car roll-over accident. He soon arrived at the scene of the accident and observed tracks suggesting that Hansen's vehicle had drifted to the right, Hansen had overcorrected and his vehicle had ended up rolling over in the median of the four-lane divided highway. He saw that Hansen was unconscious and smelled a strong odor of intoxicants about him. Wickland was assisted by a Sergeant Ewing of the Richland County Sheriff's Department who testified that he observed beer cans near the accident scene, though the cans could not be identified as definitely coming from Hansen's vehicle.
. After Hansen was taken to the hospital, Wickland placed him under arrest for OMVWI. Hansen was still unconscious and could not respond. A lab technician drew blood from Hansen for an evidentiary test of his alcohol concentration. Hansen filed a motion to suppress the blood alcohol test results. The Richland County Circuit Court denied Hansen's motion, Hansen pleaded no contest to OMVWI, and the court adjudged him guilty. Hansen appeals.
ANALYSIS
. The question of whether Deputy Wickland had probable cause to arrest Hansen is a question of law that we review de novo. See State v. Babbitt, 188 Wis. 2d 349, 356, 525 N.W.2d 102 (Ct. App. 1994). Probable cause to arrest is based on the totality of the circumstances facing a police officer at the time. See id. The standard is whether the specific facts of the particular case would have led a reasonable officer to conclude that the defendant had probably violated the law. See State v. Wille, 185 Wis. 2d 673, 682, 518 N.W.2d 325 (Ct. App. 1994). The standard for probable cause is low. The conclusion must be based on more than a suspicion that the defendant committed a crime, but the evidence need not even reach the level that guilt is more likely than not. See State v. Mitchell, 167 Wis. 2d 672, 681-82, 482 N.W.2d 364 (1992).
. The case law has not clearly outlined the minimum evidence necessary to establish probable cause to arrest for OMVWI. In State v. Seibel, the supreme court held that several factors were sufficient to give the police reasonable suspicion that Seibel's driving was impaired by alcohol. State v. Seibel, 163 Wis. 2d 164, 183-84, 471 N.W.2d 226 (1991). However, Seibel did not need to consider what factors would constitute probable cause for arrest, and therefore did not do so.
. Wille holds that an odor of intoxicants, a rear-end accident with a parked car and Wille's statement that he had "to quit doing this" gave an officer probable cause to arrest Wille for operating a motor vehicle while intoxicated. Wille, 185 Wis. 2d at 683-84.
. In State v. Swanson, 164 Wis. 2d 437, 442, 475 N.W.2d 148 (1991), the supreme court considered the following facts: at approximately 2:00 a.m. on December 31, 1989, officers observed a vehicle drive onto the sidewalk in front of a tavern, nearly hitting at least one pedestrian; the officers investigated, and noticed an odor of intoxicants on Swanson's breath; Swanson had no difficulty standing and did not have slurred or impaired speech.
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