May 5, 2015 – The Wisconsin Supreme Court recently upheld the arrest and subsequent blood draw of a man whose wife called police to report her husband was possibly suicidal and drunk, although police did not observe any traffic violations.
The supreme court said police were justified in temporarily detaining Dean Blatterman to question him for possible crimes, and the community caretaker exception to the probable cause requirement allowed police to transport him to a hospital for testing.
The state charged Blatterman with operating while intoxicated, fourth offense, after events that transpired in March 2013. Blatterman’s wife called police to report that Blatterman was bringing gasoline inside the house in an attempt to ignite the house on fire before leaving in his vehicle. She said he was probably intoxicated and suicidal.
Police tailed Blatterman and observed no traffic violations before making a “high-risk” stop to address the wife’s concerns that he was a danger to himself and others.
Blatterman ignored police instructions to stay inside the car, exiting the vehicle and walking towards the officers with hands raised before he stopped and kneeled down. Officers placed him in the squad after taking him to the ground and handcuffing him.
Blatterman, who was wearing only a t-shirt and jeans in freezing temperatures, showed signs of alcohol intoxication, including glassy eyes, and police believed he could be suffering from carbon monoxide poisoning based on his alleged handling of gasoline.
Thus, police called emergency medical services (EMS) to assess him on the scene, but Blatterman refused medical attention. Police learned that Blatterman had three prior OWI convictions before transporting him to a hospital 10 miles away.
Hospital staff determined that Blatterman did not have carbon monoxide poisoning or other medical conditions, and Blatterman denied being suicidal. He denied talking of suicide-by-cop and said his wife was trying to get him in trouble with these reports.
Police then performed a field sobriety test and ordered a blood draw, which revealed a blood alcohol level 0.118 percent, slightly over the legal limit for normal drivers but well over the 0.02 percent legal limit for drivers with three prior OWI convictions.
Blatterman moved to suppress the blood test results. He said the police stopped him without probable cause, and his subsequent arrest was unconstitutional. The trial court denied the motion to suppress and Blatterman pleaded guilty before appealing.
An appeals court reversed, concluding the police violated Blatterman’s Fourth Amendment rights by transporting him outside the vicinity of the stop and exceeding the scope of the investigatory detention. But the supreme court reversed the appeals court.
In State v. Blatterman, 2015 WI 46 (May 5, 2015), the court unanimously ruled that the investigatory stop was authorized under state statute and the community caretaker exception to the probable cause requirement allowed police to transport Blatterman.
Wis. Stat. section 968.24 allows police to temporarily detain a person for questioning if the officer reasonably believes the person has committed or is committing a crime.
The questioning must be conducted “in the vicinity where the person was stopped,” and the length of detention must be reasonable. Police detention cannot last too long.
“Here, dispatch informed the officers that according to Blatterman’s wife, Blatterman had attempted to blow up their home by drawing gas into the house and that he may be intoxicated,” wrote Chief Justice Patience Roggensack.
“The officers reasonably suspected that Blatterman had committed a crime. Accordingly, § 968.24 authorized the officers to temporarily Blatterman for questioning.”
The court also ruled that police detained Blatterman for a reasonable amount of time, noting that medical attention is a “valid reason to extend an investigatory detention.”
However, Blatterman argued that police violated section 968.24 because they continued to question him at a hospital 10 miles away, which was outside the vicinity of the stop.
On this point, the supreme court agreed. “We conclude that ten miles is too distant a transportation to be within the vicinity so long as the temporary detention is supported by no more than a reasonable suspicion,” Roggensack wrote.
Community Caretaker Exception
Thus, the state and federal constitutions required police to have probable cause to transport Blatterman beyond the vicinity of the stop, or have an alternative ground for transporting him. Here, the court ruled, the community caretaker exception applied.
The community caretaker exception allows police to arrest (detain) individuals, without probable cause, if police determine a person is in need of caretaking assistance.
Police had probable cause to arrest Blatterman for a prohibited alcohol concentration (PAC) violation, the court explained. But even if probable cause was not present, police reasonably believed his arrest and transportation was necessary for his own health.
“Here, we conclude that the officer was engaged in a bona fide community caretaker function,” Roggensack wrote. “Our conclusion is based on the circuit court’s findings of fact that dispatch informed the officer that Blatterman attempted to blow up his house by filling it with gas, and that Blatterman had, in the past talked of suicide by cop.”
The court noted that police reasonably exercised the community caretaker function because the situation presented an exigency involving Blatterman’s mental and physical health, police used a reasonable amount of force, and calling EMS was not sufficient.
If police did not transport Blatterman to a hospital and something happened to him or someone else, that decision would likely be questioned, the court noted.
“That Blatterman did not require treatment at the hospital for any physical or mental health issue is not relevant to our consideration,” Chief Justice Roggensack wrote.
Justice Annette Ziegler wrote a concurring opinion. She joined the majority’s opinion but wrote separately to “briefly explain why the officer here was not required to first administer a preliminary breath test” in order to have Blatterman’s blood tested.
She said a preliminary breath test was not necessary because of the circumstances – police believed that Blatterman needed immediate medical attention.
Justice Ziegler also concluded that “odor alone establishes probable cause to arrest and test a serial offender, like Blatterman, who smells of intoxicants and is driving.”
Justices David Prosser joined Ziegler’s full concurrence. Chief Justice Roggensack agreed that odor alone can establish probable cause for repeat drunk drivers.