The Wisconsin Supreme Court will hear a probable cause case where the defendant was unconscious, and therefore it was not possible for the officers to make any physical observations of his balance, coordination, or to do field sobriety testing.

The honest officers involved in this case admitted that they didn’t smell an odor of alcohol (a staple in most every DUI police report). The appeals court ruled that under Wisconsin DUI and criminal law, they lacked probable cause.

Now the Wisconsin Supreme Court will reconsider it.

Wisconsin supreme court takes on drunk driving evidence – WKOW 27: Madison, WI Breaking News, Weather and Sports -: “A Madison’s man blood alcohol level was three times the legal limit, when he crashed at bar time.

But an appeals court threw out his drunk driving conviction.

The state supreme court is now poised to make a decision that would affect this case and others.

Justices looked at January 2007, when Madison’s Mitchell Lange’s blood alcohol level was .25, as Lange drove on the wrong side of Sherman avenue at high speed, with police in pursuit, before crashing and being knocked unconscious.

‘Then you put on top of that the fact that this is happening just after bar time,’   assistant Dane County district attorney Tim Kiefer told justices.

‘It’s not just a reasonable inference but a compelling inference that what was going on here was the defendant was driving while impaired.’

‘The officers were unable to find any odor of alcohol,’   Lange’s attorney Steve Cohen said.

The crash and Lange’s unconsciousness prevented standard field sobriety testing.   And Cohen as well as the appeals court said officers lacked sufficient reasons to arrest on drunk driving.

Justice Annette Ziegler questioned that.

‘If you’re going to drive drunk, make sure you really go big, because you need to have an accident, if it’s really bad and there’s a gasoline smell and someone’s almost died, that you’re not going to be able to arrest unless they can smell alcohol or see beer cans, or something like that in the car,’   Ziegler said.

‘That’s the standard you’re asking this court to accept.’”

Any Wisconsin DUI lawyer would have made the same argument, and will be interesting to see what the court does.

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