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[T] County of Dane v. O'Connell5/8/2003
. Daniel P. O'Connell appeals a judgment of the circuit court finding him guilty of one count of operating a motor vehicle while intoxicated as a first offense. O'Connell argues that his motion to suppress evidence should have been granted because the arresting officer did not possess probable cause to believe that O'Connell was driving in an area where drunk driving could have been committed, that is, that he was driving on a "highway" or road held out to the public. While we question why O'Connell focuses on probable cause rather than reasonable suspicion, we agree with O'Connell that the officer did not possess sufficient facts to support a belief that O'Connell was driving on a "highway" or road held out to the public and, therefore, we reverse his conviction and remand for further proceedings.
Background
. On June 14, 2001, a police officer responded to a report of a one-vehicle accident on Northshore Bay Drive, portions of which are private. The officer contacted the driver of the vehicle, O'Connell. O'Connell admitted he had been drinking and reported crashing his vehicle into a tree after "he left a friend's house down the road and ... swerved to miss a deer." The officer detained O'Connell and administered several field sobriety tests and a preliminary breath test. The officer then arrested O'Connell for driving while under the influence of an intoxicant, and a subsequent chemical test revealed a blood alcohol level of .12%.
. O'Connell moved to suppress the evidence obtained at the scene of the accident and the subsequently obtained blood alcohol evidence on the ground that the police officer did not have probable cause to believe O'Connell was driving in an area in which drunk driving could have been committed.
. The trial court denied O'Connell's motion to suppress evidence. Following a trial on stipulated evidence, the trial court found O'Connell guilty of operating a motor vehicle while under the influence of an intoxicant as a first offense.
Discussion
. For reasons not apparent on review, O'Connell frames the dispute solely in terms of lack of probable cause. However, we find no indication that the initial detention in this case (encompassing the field sobriety tests and the preliminary breath test) needed to be supported by more than reasonable suspicion. Accordingly, if we are to overturn the trial judge with respect to the evidence obtained at the accident scene prior to O'Connell's arrest, we must conclude the officer lacked reasonable suspicion, not that she lacked probable cause. Of course, the chemical test after O'Connell's arrest needed to be supported by probable cause, but O'Connell sought and continues to seek suppression of all evidence obtained after the initial detention.
. O'Connell's decision to argue this matter on appeal solely in terms of probable cause does not cause any practical problem for our analysis. All of his arguments are easily translated into a reasonable suspicion framework. Further, for reasons that will be apparent, our conclusion that the officer lacked reasonable suspicion for the initial detention equally supports the conclusion that the officer lacked probable cause supporting the subsequent arrest and chemical test. Accordingly, we will limit our discussion to whether the officer possessed reasonable suspicion.
. The disputes on appeal do not involve whether the officer possessed reasonable suspicion to believe O'Connell was intoxicated or that he was operating a vehicle. Rather, our attention is directed solely to whether the officer had reasonable suspicion to believe O'Connell was driving on a "highway" or road held out to the public at the tim
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