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State v. Hansen3/16/2000
cusses, and decides a question germane to, though not necessarily decisive of, the controversy, such decision is not a dictum but is a judicial act of the court which it will thereafter recognize as a binding decision. Id. (quoting Chase v. American Cartage Co., 176 Wis. 235, 238, 186 N.W. 598 (1922)).
The supreme court has noted that court of appeals deference in identifying supreme court statements as dicta is gratifying, and also cautions that in the supreme court's "superintending and administrative capacity, some pronouncements that are technically obiter dictum are nevertheless administrative or supervisory directions that are intended for the guidance of the court system and are to be followed." State v. Koput, 142 Wis. 2d 370, 386 n.12, 418 N.W.2d 804 (1988). Thus, if the last sentence of footnote six in Swanson was either germane to the Swanson controversy or an instruction to trial and intermediate appellate courts, we must follow it. And, given that deference is gratifying, we conclude that we should only label a supreme court statement "dicta" if it is clearly that. It is far from clear that the Swanson footnote was a purely gratuitous statement or not germane to the opinion or was not made in the supervisory function of the supreme court. We decline the State's request to label it "gratuitous dicta."
. We conclude that although this is a close case, the information that Hansen's arresting officer obtained prior to arresting Hansen for OMVWI was insufficient to support a finding that there was probable cause to believe Hansen was guilty of OMVWI. We therefore reverse Hansen's judgment of conviction, and remand with instructions to grant Hansen's motion to suppress the evidence obtained as a result of the evidentiary test of his blood.
By the Court. -- Judgment reversed and cause remanded with directions.
Not recommended for publication in the official reports. See Wis. Stat. Rule 809.23(1)(b)4 (1997-98).
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