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State v. Hansen9/8/2004
Andrew M. Hansen appeals from an order entered after a refusal hearing under the implied consent law, Wis. Stat. § 343.305, which revoked Hansen's driving privileges for one year. The circuit court determined that Hansen wrongfully refused the arresting officer's request for a chemical test. Hansen contends that the court failed to apply the rules of evidence at the refusal hearing and that the State relied on inadmissible hearsay to meet its burden of proof. He further contends that the State failed to show that the arresting officer complied with § 343.305(4). We disagree and affirm the order of the circuit court.
. On December 10, 2003, City of Sheboygan Police Officer James Olsen observed a car sitting perpendicular to traffic, at a right angle to the curb. Olsen also observed Hansen getting out of the driver's seat of the car. Three other people were outside the car: Roger Smith (an acquaintance who had been in the car), John Hansen (Andrew Hansen's brother and the owner of the car), and Tim Reineking, who lived in the house where the car had come to a stop.
. Olsen questioned all four men, as well as Reineking's roommate, to ascertain who had been driving the car. Olsen also observed the location of a coat, a shoe, and vomit in the backseat of the car to help determine the location the various men occupied while in the car. After his investigation, Olsen concluded that Hansen had been driving the car.*fn2
. Olsen administered field sobriety tests, which Hansen failed. Olsen placed Hansen under arrest and took him to the police department where Olsen read him the Informing the Accused form. Hansen declined to take the Intoximeter test.
. At the refusal hearing, the State called Olsen as its only witness. Hansen objected to Olsen's testimony regarding what other witnesses said at the scene, arguing that hearsay was not admissible. The court initially agreed, but subsequently reversed its ruling and allowed Olsen to present what witnesses had told him.
. Olsen also testified that he had read the Informing the Accused form to Hansen and that Hansen refused to voluntarily submit to a chemical test. The State did not mark or move into evidence the actual form at the hearing, nor did Olsen read into the record the contents of the form he used.
. At the close of arguments, the court found that Olsen had complied with the requirements of Wis. Stat. § 343.305(4), and that he did have probable cause to believe that Hansen was the operator of the vehicle and was intoxicated.
. Hansen appeals, first arguing that the circuit court improperly allowed the State to present hearsay evidence to establish that he was the driver of the car. We do not reverse evidentiary rulings of the circuit court if that court exercised its discretion by applying the proper legal standard to the facts of record. State v. Kutz, 2003 WI App 205, , 267 Wis. 2d 531, 671 N.W.2d 660, review denied, 2004 WI 20, 269 Wis. 2d 198, 675 N.W.2d 804 (Wis. Jan. 23, 2004) (No. 02-1670-CR).
. Hearsay is a statement, other than one made by the person testifying, offered into evidence to prove the truth of the matter asserted. Wis. Stat. § 908.01(3). Here, however, whether Hansen was in fact the driver of the car was not the issue at the refusal hearing. See State v. Nordness, 128 Wis. 2d 15, 29, 381 N.W.2d 300 (1986). The issue was whether Olsen had probable cause to believe Hansen was the driver. See id. For this purpose, Olsen's testimony regarding the statements of the passengers and the witness who lived nearby were admissible. Probable cause to arrest refers to that quantum of evidence which would lead a reasonable officer to believe that the person probably committed
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