CoA says cops may ask 24 questions before Mirandizing OWI suspects

State v. Anne E. Streckenbach, 2020AP345-CR, 12/7/21, District 3, (1-judge opinion, ineligible for publication); case activity (including briefs)

When a cop stopped Streckenbach for a traffic violation he observed signs of intoxication. He asked her the 24 questions that appear the DOT’s Alcohol/Drug Influence Report–questions that are usually asked after the driver has been arrested and Mirandized. Streckenbach couldn’t answer all of the questions, so the cop conducted field sobriety tests, which she failed. Did the cop’s questioning violate her state and federal constitutional rights to be free from self-incrimination?

The court of appeals noted that the 5th Amendment prohibits only compelled testimony that is incriminating. See State v. Mark, 2006 WI 78, ¶16, 292 Wis. 2d 1, 718 N.W.2d 90.  Furthermore, during a traffic stop, an officer may “ask the detainee a
moderate number of questions to determine [the detainee’s] identity and to try to obtain information confirming or dispelling the officer’s suspicions.” Berkemer v. McCarty, 468 U.S. 420, 439 (1984). The detainee “is not obliged to answer.” Id.

Streckenbach did not dispute that the cop had reasonable suspicion to stop her or to investigate a possible OWI based on signs of intoxication. Under Berkemer, he was therefore permitted to ask her a “moderate” number of questions to confirm or dispel his suspicion. Streckenback argued that the number of questions was not “moderate” and many weren’t actually relevant to confirming or dispelling suspicion of OWI. The court of appeals disagreed. It also said that she could have declined to answer them. Opinion, ¶¶14-16.  We’ve copied in the questions at the bottom of this post so you can tell us what you think.

Streckenbach’s argument that the cop should have read her Miranda rights before questioning her also failed:

A traffic stop “does not rise to the level of ‘custody’ for purposes of Miranda” unless, under the totality of the circumstances, the driver’s “freedom of action is curtailed to a degree associated with a formal arrest.” Dobbs, 392 Wis. 2d 505, ¶59. Streckenbach does not develop any argument that she was in custody at the time Schmitz asked the questions at issue in this appeal.  Opinion, ¶17.

Next, Streckenbach argued that Article I, §8 of the Wisconsin Constitution afforded her greater protection than the 5th Amendment under State v. Knapp, 2005 WI 127, 285 Wis. 2d 86, 700 N.W.2d 899. According to the court of appeals, Knapp applies only when a cop obtains physical evidence as a direct result of an intentional Miranda violation. There was no intentional Miranda violation in this case. Opinion, ¶¶19-20.

The 24 questions the cop asked Streckenbach:

(A) What level of education she achieved;
(B) Whether she wears contacts, and whether they are hard or soft;
(C) What time it currently was without looking at a clock or watch;
(D) What the date was, again without looking;
(E) How many hours of sleep she had;
(F) What time she went to sleep the night before [the] stop;
(G) What time she woke up that morning;
(H) Whether the number of hours she slept was “normal” for her;
(I) Whether she was under a doctor’s care for anything;
(J) Whether she took any medications;
(K) What medications did she take;
(L) When her last dose was taken;
(M) Whether she had been to a dentist within the last 24 hours;
(N) Whether she had any injuries;
(O) Whether she suffered from epilepsy or diabetes;
(P) Where she was going prior to her detention;
(Q) How many drinks she consumed before driving;
(R) What kind of drinks had she consumed;
(S) Where she consumed the drinks;
(T) What time she consumed the first drink;
(U) What time she consumed the last drink;
(V) Whether she took any street drugs;
([W]) Whether she felt she was under the influence; and
([X]) Whether she was operating her motor vehicle at the
time she was stopped.