June 18, 2009 – Determination of probable cause for a drunk driving arrest is based on the particular circumstances of each case so that proof of intoxicant use may not be necessary, the Wisconsin Supreme Court held June 16.

In State v. Lange, 2009 WI 49, police observed Mitchell Lange driving on the wrong side of a four-lane road at speeds over 80 m.p.h. in a 30 m.p.h. zone around 3 a.m. on a Sunday morning before crashing into a utility pole, causing his car to flip onto its roof.

Lange was bleeding and unconscious, preventing police from performing field sobriety tests. The officers were unable to detect the odor of alcohol on Lange because of the powerful smell of gasoline leaking from the car. Likewise, the risk of the car igniting kept police from searching it.

After Lange arrived at the University of Wisconsin Hospital, the police learned of his prior conviction for operating a motor vehicle while under the influence of an intoxicant. Lange was arrested, and a blood sample was taken from the unconscious defendant.

Probable cause

Blood may be drawn from an unconscious suspect if lawfully arrested, the court noted. Accordingly, Lange argued the warrantless arrest was not lawful because the police did not have probable cause supported by the common indicia of drunk driving.

Lange listed facts typically used to find probable cause of drunk driving such as the motorist’s admission of drinking, the smell of alcohol, slurred speech or difficulty balancing, known visits to a bar, intoxicated traveling companions, empty cans or bottles, or suggestive field sobriety tests.

“The defendant contends that the time of the incident (3 a.m.) and the officer’s observations of his driving, which the defendant characterizes as ‘erratic,’ represented the only potential evidence of intoxication,” the court observed.

“The defendant warns that if his conviction is allowed to stand, law enforcement officers will be permitted to arrest, for the crime of operating while under the influence, ‘all drivers involved in an accident during very late or very early hours,’” the court reported.

Acknowledging that the police did not observe the common indicators of intoxication, the court held there was still probable cause, weighing the totality of the circumstances. And because probable cause is found only by considering the particular circumstances of each case, the court rejected Lange’s dire prediction of motorists arrested on a limited basis of fact.

Turning to the facts of this case, the court said Lange’s driving was far more hazardous than he admits. “The driving was not merely erratic and unlawful; it was the sort of wildly dangerous driving that suggests the absence of a sober decision maker behind the wheel,” the court said, noting that Lange crossed the centerline multiple times, sped more than 50 miles per hour above the posted limit when chased by police, and drove his car through a utility pole.

The court also accounted for one of the police officer’s extensive experience with drunk driving cases, the discovery of Lange’s prior conviction for this offense, and that the time coincided with the bar closings. Lastly, the court said it was “neither surprising nor significant” that the officers could not gather the traditional evidence of drunk driving given the “gasoline-soaked crash scene.”

In a concurring opinion, Justice Annette Kingsland Ziegler, joined by Justices Patience Roggensack and Michael Gableman, emphasized that field sobriety tests need not be given to find probable cause.