Resource Center on Impaired Driving

Argued before the Wisconsin Supreme Court on 10/13/2009.

This is a review of a decision of the Wisconsin Court of Appeals, District II (headquartered in Waukesha), 2007AP1898-CR, which affirmed an Ozaukee County Circuit Court decision, Judge Thomas R. Wolfgram, presiding.

A decision by the Supreme Court could determine whether the blanket exclusion of PBT results in Wis. Stat. § 343.303 extends to expert testimony by a defense witness that relies, in part, on PBT results, and could provide further guidance regarding the proper role of a trial court in determining admissibility of expert opinions under Wis. Stat. § 907.02.

Date:  6/16/2009

Issue: Warrantless blood draw.      

Holding:  The Wisconsin Supreme Court held that based on the totality of the circumstances known to the officers at the time, a reasonable officer could believe that Lange was OWI even though evidence of intoxicants was not present.

Summary: 
Officers observed Lange driving unlawfully and erratically, ultimately crashing his vehicle into a utility pole at around 3:00 a.m. on a Sunday morning. Lange caused substantial injuries to himself and damage to his vehicle. The officers on the scene did not detect an odor of intoxicants, as Lange was unconscious, bloody, and lying in a gasoline-soaked crash scene. At the hospital, the officers learned that Lange had a prior OWI conviction. The officer formally placed Lange, still unconscious, under arrest for operating a vehicle while under the influence of an intoxicant before the blood draw was done.

Lange challenged the blood draw evidence, alleging he was not lawfully arrested for operating a motor vehicle while under the influence when his blood was taken. He asserts that the officer did not have probable cause to believe that he was driving while intoxicated. The circuit court denied Lange’s motion to suppress the evidence but on appeal, the court of appeals agreed with Lange that the state failed to meet its burden of showing probable cause at the time of the arrest.

The Wisconsin Supreme Court reversed, stating, “A warrantless blood draw is not lawful unless it is sup¬ported by probable cause” and there was probable cause in the case at bar. State v. Secrist, 224 Wis. 2d 201, 209, 589 N.W.2d 387 (1999). Establishing probable cause to arrest for operating while under the influence of an intoxicant is based on the quantum of evidence known to the arresting officer at the time of the ar¬rest, that would lead a reasonable law enforcement officer to believe the defendant was under the influence. State v. Kasian, 207 Wis. 2d 611, 621, 558 N.W. 2d 687 (Ct. App. 1996). The court found the state met its burden of establishing that at the time of Lange’s arrest the police officer had probable cause. Based on the totality of circumstances, the court considered the following five factors in its totality of circumstances determination: 1) the officers’ observations of Lange’s reckless driving, 2) the officers’ combined experience, 3) the time of night, 4) the officers’ knowledge that Lange had a prior conviction for OWI, and 5) the fact that the seriousness of the crash prevented the officers from taking any further investigative steps. The court concluded that the reasonable inference to be drawn from the facts presented in the case is that the defendant was impaired by intoxicants.

Date:  5/27/09

Issue: Probable cause of OWI     

Holding:  The Wisconsin Supreme Court held that the stop was constitutional because the police had probable cause that a traffic violation had occurred when the defendant swerved left of center. The police also had reasonable suspicion, under the totality of circumstances, that the defendant was operating the vehicle while intoxicated.

Summary: 
A police officer observed Popke’s vehicle swerve left of center after making a turn, being three-quarters left of center and then proceeded to “overcompensate” almost hitting the curb on the right hand side of the road before “fading back” towards the middle of the road and almost striking the median. After viewing these actions the police officer initiated a traffic stop. The officer found Popke was intoxicated. Popke was arrested and charged with third-offense operating a motor vehicle while intoxicated and operating with a prohibited blood alcohol concentration of .255.

Popke moved to suppress any evidence from the traffic stop alleging the officer did not have probable cause that a traffic violation had occurred when the vehicle swerved left of center nor did the officer have reason¬able suspicion of operating while intoxicated. The circuit court denied Popke’s motion finding that the officer had probable cause that a traffic violation occurred, namely driving left of center. The court of appeals reversed, concluding that based on a plain language reading of Wis. Stat.§ 346.05, a “momentary” swerve across the center would not constitute the traffic offense of failure to drive on the proper side of the road.

The Wisconsin Supreme Court agreed with the circuit court, finding there was probable cause to believe a violation of the traffic code had occurred when the vehicle swerved left of center in the road. Popke had control over the speed and the direction of his vehicle when he crossed left of center; therefore he violated Wis. Stat. § 346.05, unlawfully driving on the wrong side of the road. The court also found that the officer had reasonable suspicion, based on the totality of the circumstances, which include the fact it was late at night, the officer had direct observation of Popke’s actions, and had years of experience as a police officer, to conclude the defendant was operating the vehicle while intoxicated. “An officer may conduct a traffic stop where he or she has grounds to reasonably suspect that a traffic violation has occurred or will occur” State v. Gaulrapp, 207 Wis. 2d 600, 605, 558 N.W.2d 696 (Ct. App. 1996). The officer “must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant’ the intrusion of the stop.” State v. Post, 2007 WI 60, ¶10, 301 Wis. 2d 1, 733 N.W.2d 634. In this case, the officer’s observations of Popke’s vehicle were sufficient to give rise to reasonable suspicion that he was operating his vehicle while intoxicated. The defendant’s motion to suppress the evidence was denied.

Date:  1/29/09

Issue:  Community Caretaker Exception   

Holding:  A seizure is lawful if the officer was acting in a community caretaker capacity.

Summary: 
The Wisconsin Supreme Court unanimously affirmed the decision of the court of appeals that had affirmed Kramer’s conviction of operating a motor vehicle while under the influence of an intoxicant.  



Kramer’s vehicle was pulled over on the side of the road with its hazard lights flashing.  The highway patrol officer pulled up behind Kramer’s vehicle to see if the driver needed assistance.  When the officer made contact with Kramer, he noticed Kramer was slurring his speech and there was a strong odor of intoxicants from inside the vehicle.  Kramer was arrested and convicted of operating a motor vehicle while under the influence of an intoxicant.  Kramer moved to suppress the evidence, alleging he was unlawfully seized before the officer discovered Kramer was intoxicated.  The court of appeals held that the seizure was lawful because the officer was acting in  a community caretaker role by stopping to inquire of Kramer’s wellbeing. 


The Wisconsin Supreme Court addressed two issues: (1) Whether Kramer, whose vehicle was legally parked on the side of the road, was seized without probable cause or reasonable suspicion when the officer activated his emergency lights and pulled up behind Kramer’s vehicle; and (2) If a seizure did occur, did the officer’s actions fall within the scope of the community caretaker function.  The Court assumed in this case that a seizure had occurred.  Therefore, the Court focused on the question of whether the officer’s conduct was a bona fide community caretaker function. 



The supreme court adopted a three-part test used in State v.  Kelsey C.R., 243 Wis. 2d 422, to determine whether an officer can assert that he was acting in a community caretaker function when the seizure occurred.  First, did a seizure within the meaning of the fourth amendment occurr?  Second, if so, was the police conduct a bona fide community caretaker activity?  Finally, if so, does the public need and interest outweigh the intrusion upon the privacy of the individual?  



In Cady v. Dombrowski, the Supreme Court found that “[l]ocal police officers ... frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” 413 U.S. 433, 441 (1973).  In Kramer’s situation, the officer had an objectively reasonable basis for deciding that Kramer may have needed assistance, when he stopped and then approached the car.  The public has a substantial interest in ensuring that police officers assist stranded motorists, especially in this case where it was after dark, on the side of a highway, and outside the urban area where help is easier to find.  The officer was acting in a community caretaker function, until when Kramer spoke and the deputy shifted into a law enforcement function.