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COURT OF APPEALS DECISION DATED AND RELEASED November 27, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-2199-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
VILLAGE OF JACKSON,
Plaintiff-Respondent,
v.
RICHARD P. HAMANN,
JR.,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Washington County:
RICHARD T. BECKER, Judge. Affirmed.
NETTESHEIM, J. Richard
P. Hamann, Jr., appeals from a forfeiture judgment for operating a motor
vehicle while intoxicated pursuant to § 346.63(1)(a), Stats.
On appeal, Hamann renews his trial court argument that the arresting
officer did not have probable cause to request Hamann to submit to a
preliminary breath test (PBT). We
uphold the trial court's ruling rejecting Hamann's argument. We affirm the judgment.
The relevant facts are
not in dispute. About midnight on June
25, 1995, Officer Ronald Laabs of the Village of Jackson Police Department
received a radio dispatch notifying him that a semi-truck driver had observed
erratic driving by the operator of a red pickup truck eastbound on Highway
60. Laabs eventually saw the suspect
truck and took up pursuit. While
following the truck, Laabs saw the vehicle weave three times between the fog
line and the center line.
Laabs decided to stop
the truck. As the truck pulled to the
shoulder, it veered to miss a mailbox, jumped the curb and came to a halt. Laabs then approached the truck and
identified the driver as Hamann. Laabs
observed that Hamann's speech was “slurred” or “thick tongued” and that his
eyes were bloodshot. Laabs also
detected the odor of urine coming from the vehicle. Later, when Hamann exited the vehicle, Laabs observed that
Hamann's pants were damp and that his fly was open.
In response to
questioning by Laabs, Hamann denied that he had been drinking. Laabs did not detect the odor of alcohol on
Hamann. However, he testified that the
absence of the odor of intoxicants did not negate his belief that Hamann was
intoxicated because he knew that certain alcoholic beverages such as vodka or
gin “have a very hard odor to pick up.” Laabs then administered a PBT to Hamann and thereafter some field
sobriety tests. Ultimately, Laabs
issued Hamann a citation for OWI.
The matter first
proceeded to trial in the municipal court where Hamann was found guilty. He appealed to the circuit court and sought
and received a trial de novo. In that
forum, Hamann brought a motion to dismiss or, alternatively, to suppress the
evidence garnered following the PBT test.
Specifically, Hamann argued that Laabs did not have probable cause to
request him to submit to the PBT pursuant to § 343.303, Stats.
The circuit court denied the motion.
Following a trial based on stipulated facts, the court found Hamann
guilty. He appeals to us.
Before we address the
issue on its merits, we note some troubling aspects of this case. On appeal, Hamann does not challenge the
initial stop of his vehicle by Laabs.
His only claim is that Laabs did not have probable cause to administer
the PBT. However, even if we concluded
that the trial court erred in its probable cause ruling, Hamann's appellate
brief does not advise how the error has prejudiced him.
On appeal, Hamann
pursues only the suppression—not the dismissal—aspect of his motion. He requests that we order suppressed all
evidence garnered against him subsequent to the PBT. But Hamann does not advise us what such evidence is. If Hamann is referring to the field sobriety
tests, he has not advised us as to the results of those tests, whether they
constituted part of the stipulated facts for purposes of the trial, and what
role, if any, that evidence played in the trial court's finding of guilt
against him.[1]
Given these omissions in
Hamann's brief, we have on our own initiative examined the appellate record to
assure that Hamann was truly prejudiced by the trial court's ruling. However, this effort has proven futile
because Hamann has also failed to include in the appellate record the
stipulated facts, a transcript of the stipulated trial (if the proceeding was
reported), or the trial court's bench or written decision adjudging him guilty.
Ordinarily, we will not
address an issue on the merits unless the appellant has demonstrated that the
claimed error was prejudicial, or, absent that showing, that it otherwise is
apparent to us that prejudice has occurred.
We have considered affirming the trial court's ruling on this
basis. However, we note that the
Village's brief does echo our concerns.
From this, we cautiously (and perhaps erroneously) assume that the
Village concedes that Hamann was prejudiced by the trial court's ruling. Thus, we choose to address Hamann's issue on its merits.
Whether probable cause
to arrest exists based on the facts of a given case is a question of law which
we review independently of the trial court.
State v. Truax, 151 Wis.2d 354, 360, 444 N.W.2d 432, 435
(Ct. App. 1989). In determining whether
probable cause exists, we must look to the totality of the circumstances to
determine whether the “arresting officer’s knowledge at the time of the arrest
would lead a reasonable police officer to believe that the defendant was
operating a motor vehicle while under the influence of an intoxicant.” State v. Babbitt, 188 Wis.2d
349, 356, 525 N.W.2d 102, 104 (Ct. App. 1994) (quoted source omitted). “Probable cause to arrest does not require
proof beyond a reasonable doubt or even that guilt is more likely than
not.” Id. at 357, 525
N.W.2d at 104. It is sufficient that a
reasonable officer would conclude, based upon the information in the officer’s
possession, that the “defendant probably committed [the offense].” State v. Koch, 175 Wis.2d 684,
701, 499 N.W.2d 152, 161 (quoted source omitted), cert. denied,
510 U.S. 880 (1993).
Furthermore, this court is not bound by the officer’s subjective
assessment or motivation. State
v. Anderson, 149 Wis.2d 663, 675, 439 N.W.2d 840, 845 (Ct. App. 1989), rev’d
on other grounds, 155 Wis.2d 77, 454 N.W.2d 763 (1990), see also Terry
v. Ohio, 392 U.S. 1, 21-22 (1968).
This case is somewhat
different from other OWI cases because Laabs did not detect an odor of alcohol
about Hamann and because he did not administer the field sobriety tests until
after the PBT. Nonetheless, we agree
with the trial court's conclusion that the evidence established probable
cause. We so hold for the following
reasons.
First, Laabs had
received the radio dispatch reporting the erratic driving witnessed by the
semi-truck driver. A citizen who
witnesses an offense is deemed reliable and information provided by such a
witness may contribute to probable cause.
See State v. Welsh, 108 Wis.2d 319, 330-31, 321
N.W.2d 245, 251-52 (1982), vacated on other grounds, 466 U.S. 740
(1984). Second, this report was
corroborated by Laabs's own observations of Hamann's erratic weaving within his
traffic lane. Third, as Hamann was
pulling over to stop the truck, he veered to miss a mailbox and jumped the
curb. We acknowledge that erratic
driving can sometimes be attributed to factors other than intoxication. But it is common knowledge that erratic
driving is, more often than not, the product of intoxication.
Fourth, Laabs's later
observations of Hamann heightened his suspicion that Hamann was
intoxicated. He noted that Hamann's
speech was slurred and thick-tongued, a classic symptom of intoxication. He also detected the order of urine and
observed that Hamann's clothing was damp and his was fly open. This reasonably suggested that Hamann was
unable to control certain bodily functions, also a condition which sometimes
evinces a state of intoxication.
While the absence of an
odor of alcohol is a factor in support of Hamann's argument, Laabs testified
that the odor of certain alcoholic beverages can be difficult to detect. We do not conclude that this one fact in
Hamann's favor trumps the other factors which strongly indicated that Hamann
was probably intoxicated.
Both Hamann and the
Village are able to cite to cases with facts which arguably support their
competing positions. However,
“[p]robable cause to arrest must be measured by the facts of the particular
case.” Welsh, 108 Wis.2d
at 330, 321 N.W.2d at 251 (quoted source omitted; emphasis added). We recall two principles of probable cause
law which we deem the most compelling in this case: (1) probable cause deals with probabilities and with the factual
and practical considerations of everyday life on which reasonable and prudent
persons act, id.; and (2) probable cause does not require that
guilt is more likely than not. Babbitt,
188 Wis.2d at 357, 525 N.W.2d at 104.
In short, probable cause simply asks what a reasonable police officer
would logically conclude from a commonsense standpoint given the facts and
information at hand.
We conclude that a
reasonable police officer, confronted with the information and observations
concerning Hamann revealed by this case, would logically conclude that Hamann
was probably intoxicated. We agree with
the trial court's ruling. Consequently,
we affirm the judgment.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.