Motor Vehicles – OWI — probable cause

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Wisconsin Court of Appeals

Criminal

Motor Vehicles – OWI — probable cause

This appeal concerns the outcome of a hearing at which the respondent, Ross Timothy Litke, argued that there was no probable cause to support a police officer’s decision to administer a preliminary breath test, in order to determine whether there was probable cause to arrest him for operating a motor vehicle while under the influence of an intoxicant. Following this hearing, the trial court determined that the police officer who administered the preliminary breath test did not have probable cause to do so. The State of Wisconsin appeals that decision, arguing that the trial court erred in refusing to consider the evidence of intoxication from the officer’s administration of the Horizontal Gaze Nystagmus test and that there was probable cause to administer the preliminary breath test if the evidence from the HGN is considered. In the alternative, the State argues that there was probable cause to administer the preliminary breath test even without the evidence from the HGN test. The State also argues that because there was probable cause to administer the preliminary breath test, the test results were admissible to show probable cause to arrest pursuant to § 343.303 and there was probable cause to arrest Litke for operating while intoxicated.

This court agrees with the State and concludes that even without the evidence from the HGN test there was probable cause to administer the preliminary breath test. This court further concludes that because there was probable cause to administer the preliminary breath test, the test results were admissible to show that there was probable cause to arrest Litke for operating while intoxicated, and that, under the totality of the circumstances, there was probable cause to arrest him. Consequently, the trial court’s decision is reversed and the case is remanded for further proceedings. This opinion will not be published.

2013AP1606-CR State v. Litke

Dist I, Milwaukee County, Stark, J., Curley, P.J.

Attorneys: For Appellant: Loebel, Karen A., Milwaukee; Dague, Ronald S., Milwaukee; For Respondent: Mastantuono, Craig A., Milwaukee