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State v. Griese9/9/2004
Officers of the Horicon Police Department stopped Griese for driving with a burned out tail light. After making contact with Griese, the officers suspected that he might be driving while intoxicated. Rather than have him perform field sobriety tests at the scene of the traffic stop "due to the weather being so cold," they transported him to the police station to administer the tests. After observing Griese's performance on the sobriety tests, the police arrested Griese for OMVWI and took him to a local hospital for an evidentiary blood test, which he refused. The police subsequently had a blood sample drawn from Griese despite his refusal.
. Because he had refused to submit to a blood test, the police issued Griese a Notice of Intent to Revoke Operating Privilege. Griese filed a timely demand for a refusal hearing under Wis. Stat. § 343.305(9). Griese claimed at the refusal hearing that police had arrested him without probable cause when they transported him from the location of the original traffic stop to the police station for field sobriety tests. No testimony was taken, Griese and the State having stipulated to the facts as set forth in the complaint and attached police reports. They also agreed that the police station was one mile from the location of the stop and that Griese performed the sobriety tests inside the police station.
. The trial court, in a written decision following briefing by the parties, concluded that the police arrested Griese when they put him in the squad car and transported him to the police station and that they lacked probable cause to arrest him at that point in time. Accordingly, the court ruled that Griese had not been "lawfully placed under arrest (under Section 343.305(9)(a)5, Wis. Stats.), so no action will be taken on his operating privilege on account of his refusal to submit to the test in question."
. Four days prior to the scheduled jury trial on the OMVWI charge, Griese filed a motion to exclude all the evidence the police had obtained after his arrest. Griese argued that because the parties had litigated the issue of the lawfulness of Griese's arrest at the refusal hearing, and because the court had issued a final and valid determination that the arrest was unlawful because not based on probable cause, the doctrine of issue preclusion required the court to suppress all the evidence police obtained after Griese's arrest. The trial court denied the motion to suppress. The court acknowledged that the State's burden of proof at the refusal hearing was lower than it would be at a suppression hearing in the criminal case, and that the State had "lost" on the issue of the lawfulness of Griese's arrest. The court concluded, however, that the State would be able to "present more evidence" in criminal proceedings than it had at the refusal hearing and should not be precluded from doing so.
. After the denial of his motion to suppress the blood test result and other evidence obtained following his arrest, Griese pled no contest and was convicted of OMVWI, as a fourth offense. He appeals the judgment of conviction, claiming that the trial court erred by not suppressing post-arrest evidence. See Wis. Stat. § 971.31(10) ("An order denying a motion to suppress evidence ... may be reviewed upon appeal from a judgment of conviction notwithstanding the fact that such judgment was entered upon a plea of guilty.").*fn2
ANALYSIS
. The State contends that, despite the trial court's conclusion in the refusal proceeding that the police lacked probable cause when they arrested him, it is entitled to re-litigate the legality of Griese's arrest in its criminal prosecution of Griese for OMVWI. The State relies on State v. Wille, 185 Wis. 2
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