COURT OF APPEALS
DATED AND FILED
October 2, 2008
David R. Schanker
Clerk of Court of Appeals
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
STATE OF WISCONSIN
IN COURT OF APPEALS
Mitchell A. Lange,
from a judgment of the circuit court for
¶1 DYKMAN, J. Mitchell Lange appeals from a judgment convicting him of operating a motor vehicle while intoxicated, second offense, contrary to Wis. Stat. § 346.63(1)(a). Lange argues that police did not have probable cause to arrest him for OWI after witnessing his erratic driving at bar time leading to a one-car crash. The State responds that those facts amount to probable cause to believe Lange had committed the offense of OWI. We conclude that the facts of this case do not establish probable cause to arrest Lange for OWI, and therefore reverse and remand with directions to grant Lange’s motion to suppress.
¶2 The following facts are undisputed. On January 21, 2007, at 2:52 a.m., Police
Officer Don Penly was driving home from work when he saw a white car traveling
ten to fifteen miles per hour above the speed limit on
¶3 At approximately the same time, Police Officer Margaret
Hoffman was running stationary speed radar at the intersection of
¶4 When Penly saw in his rearview mirror that Hoffman had activated her overhead lights, he turned his car around and travelled in Hoffman’s direction. When he reached her location, he also witnessed the sheared utility pole held up by its wires, the white car on its roof and Lange lying unconscious on the ground. The only smell he detected on the scene was gasoline. After Penly and Hoffman discussed their observations, and the fact that it was around bar time, Hoffman arrested Lange for OWI. Lange moved to suppress the evidence obtained when his blood was drawn following his arrest, arguing police did not have probable cause to arrest him. The trial court denied Lange’s motion, and he appeals.
Standard of Review
¶5 Whether an arrest was supported by probable cause is a
question of constitutional fact. State
v. Secrist, 224
¶6 The parties present a very narrow issue for our review: whether there was probable cause to arrest Lange for OWI. We conclude that there was not.
¶7 “There is probable cause to arrest when the totality of the
circumstances within [the arresting] officer’s knowledge at the time of the
arrest would lead a reasonable police officer to believe that the defendant
probably committed a crime.” State
v. Sykes, 2005 WI 48, ¶18, 279
¶8 The supreme court recently revisited the issue of probable
cause to arrest for OWI in Washburn County v. Smith, 2008 WI
¶9 In concluding that police had probable cause to arrest Smith,
the supreme court reviewed two of its oft-cited cases relied upon by the
defendant (and which Lange relies on here), State v. Seibel, 163 Wis.
2d 164, 471 N.W.2d 226 (1991), and State v. Swanson, 164 Wis. 2d 437,
475 N.W.2d 148 (1991). See Smith, 308
¶10 Next, the supreme court distinguished Swanson. There, police observed Swanson drive onto the
sidewalk in front of a tavern and nearly hit a pedestrian at 2:00 a.m. Smith,
¶11 The Smith court explained that Swanson did not guide its outcome
because, first, “Swanson did not announce a general rule requiring field sobriety
tests in all cases as a prerequisite for establishing probable cause to arrest
a driver for operating a motor vehicle while under the influence of an
intoxicant.” Smith, 308
¶12 Thus, while not retreating from its holdings in Seibel and Swanson, the supreme court held that the facts in Smith were sufficient to establish probable cause to arrest for OWI. While not establishing any bright line rules and reiterating that probable cause is always determined on a case-by-case basis, the court emphasized that the significant indicia of intoxication in Smith—the odor of intoxicants and Smith’s admission of drinking—distinguished it from those cases where the indicia of intoxication were not as strong.
¶13 Our prior cases follow the reasoning reaffirmed in Smith. In State v. Kasian, 207 Wis. 2d 611,
622, 558 N.W.2d 687 (Ct. App. 1996), we concluded that there was probable cause
to arrest for OWI when police found Kasian injured at the scene of a one-car
accident, smelled intoxicants on Kasian, and noted Kasian’s speech was slurred. Similarly, in State v. Wille,
¶14 In contrast, the facts here show no actual evidence of alcohol
consumption. Although erratic driving
and a crash at bar time create a suspicion of intoxicated driving, it is only
the possibility of intoxicated driving. See Sykes, 279
By the Court.—Judgment reversed and cause remanded with directions.
Not recommended for publication in the official reports. See Wis. Stat. Rule 809.23(1)(b)4.
 This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2)(c) (2005-06). All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
 Lange concedes that if police had probable cause to arrest him, they had authority to draw his blood.
an appellate court may, sua sponte, consider an issue not raised by the
parties, we will usually decline to
do so, and we see no reason to depart from that practice in this case.” State ex rel. S.M.D. v. F.D.L., 125
supreme court later abrogated one of its holdings in State v. Swanson, 164
 We recognize the State’s argument that any odor of intoxicants was masked by the smell of gasoline, police were focused on saving Lange rather than on searching for evidence of intoxicants, and that Lange was unconscious when police arrived at the scene. Nonetheless, if the particular facts of a case preclude a finding of probable cause, an arrest is not justified. Good reasons for a lack of evidence are not themselves evidence.