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State v. Erickson1/16/2003
is assessed by looking at practical considerations on which reasonable people, not legal technicians, act. See State v. Pozo, 198 Wis. 2d 705, 711, 544 N.W.2d 228 (Ct. App. 1995). Probable cause does not mean more likely than not. State v. Paszek, 50 Wis. 2d 619, 625, 184 N.W.2d 836 (1971). It is only necessary that the information support a reasonable belief that guilt is more than a possibility. Id.
. In this case, the officer knew the following information when he ordered the blood draw. At about 5:40 a.m. on August 27, 2000, less than two hours prior to the blood draw, Erickson crashed her pickup truck into a vehicle with sufficient force to set the vehicle on fire. One occupant in the vehicle was killed and the other was seriously injured. Erickson told the officer she remembered waking up and crashing into the vehicle. Erickson said she was returning home from dropping off a friend after a party. While at the scene, Erickson told the officer that she had drunk one beer around 1:00 a.m., but she later told medical personnel she had had three beers, the last one at 1:00 a.m. In addition, while standing about three to four feet from Erickson at the scene, the officer did not smell an odor of intoxicants. However, three emergency medical technicians who treated Erickson at the scene and transported her to the hospital reported that they smelled a strong odor of alcohol on Erickson.
. These facts supply probable cause to believe Erickson's blood contained evidence of drunk driving at the time the officer directed hospital personnel to take a blood sample. Erickson admitted drinking and, at about 5:00 a.m., had just dropped off a friend after a party. Thus, there was reason to believe that Erickson had been at an all-night party where she had been drinking. The fact that Erickson gave two different reports of how much she drank suggests she tried to conceal how much she actually drank. Moreover, the medical technicians smelled a "strong" odor of alcohol on Erickson about five hours after her last reported beer, further suggesting she drank more than she admitted. While the officer did not detect an odor of intoxicants, the medical personnel were in closer proximity. From these facts, it is reasonable to conclude that Erickson dozed off and crashed into the vehicle because she was under the influence of alcohol. While it may also be reasonable to conclude that Erickson simply dozed at the wheel because she was tired, there was at least a "fair probability" that Erickson was intoxicated and that her blood would contain evidence of her intoxication.
By the Court. -- Judgments affirmed.
Recommended for publication in the official reports.
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