State v. Roger A. Wolf, Jr., 2022AP1539, 8/24/23, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)
An responding officer encountered Wolf, head bloodied, near a crashed motorcycle and a dead deer. Wolf said he’d been “drinking all day” but that an unidentified third person, not on scene, had been driving the bike when it hit the deer. He argues the officer lacked probable cause to perform a preliminary breath test.
The court of appeals notes a potential claim that the officer didn’t “request” a PBT as Wis. Stat. § 343.303 permits, but instead performed one without consent by holding the device’s straw near Wolf’s mouth and instructing him to blow while Wolf was receiving treatment in an ambulance. (¶1 n.2). But the court says Wolf hasn’t developed that argument, so it considers only whether the officer had probable cause to ask for the PBT.
The court concludes that he did, citing these facts from the record:
- Wolf told the officer he had been “drinking all day”;
- Wolf smelled of alcohol;
- Wolf was involved in a traffic accident in which he hit a deer;
- the accident occurred at approximately 12:49 a.m.;
- Wolf told the officer that he was not sure what had happened;
- Wolf told the officer that he was a passenger on the motorcycle but did not recall the operator’s name;
- the motorcycle was a one-seater and no other operator or passenger was at the scene of the crash;
- the motorcycle was registered to Wolf; and
- Wolf had a prior OWI conviction.
(¶15). Wolf argues that all of these facts had potential explanations consistent with innocence, but the court cites State v. Nieves, 2007 WI App 189, ¶14, 304 Wis. 2d 182, 738 N.W.2d 125, for the proposition that “an officer is not required to draw a reasonable inference that favors innocence when there also is a reasonable inference that favors probable cause.” (¶17).
