Drinking at a bar with seemingly drunk person raises suspicion of OWI

State v. Courtney L. Carney, 2016AP175-CR & 176, 9/21/2016, District 2 (1-judge decision; ineligible for publication); case activity (including briefs)

At 3 a.m. on a Saturday morning, police pulled a car over for a broken light. The car driving in front of the targeted vehicle also stopped; this was Carney’s. The police ended up detaining him too, leading to his eventual OWI arrest; the question here is whether they had reasonable suspicion for the initial detention.

Here’s what the officers knew when they took Carney’s license, thereby rendering him seized: the driver of the other vehicle appeared to be intoxicated; Carney had stopped his car despite not having been the one pulled over; he said he had been drinking at a bar with the driver of the other car and had had one drink; he was uncertain of the name of the bar but said it was “possibly Nice Ash”; he had alcohol on his breath; and it was 3 in the morning. On the other hand, Carney’s speech was “normal” and he had no difficulty handing over his driver’s license. (¶¶5-6, 10).

Both the circuit court and the court of appeals label this a “close case,” but both rule in favor of the state. (¶11). Acknowledging that no particular fact here points unambiguously to impairment, the court of appeals invokes State v. Waldner, 206 Wis. 2d 51, 59, 556 N.W.2d 681 (1996), for the notion that “a reasonable officer is not required to assume an innocent explanation if an inculpatory one also exists.” (¶13). Along with the time of day and Courtney’s uncertainty about where he was coming from, the court seems to place substantial weight on Courtney’s association with the other suspected OWI motorist:

To begin, Carney had not only been driving after consuming at a bar a sufficient amount of alcohol to produce the smell of intoxicants emitting from his breath, but he had been doing so with an acquaintance who Mullins suspected of being intoxicated. Carney and his acquaintance had been engaged in a joint venture together—drinking at a bar. It is certainly possible Carney’s acquaintance consumed sufficient amounts of alcohol to cause Mullins to suspect her of being intoxicated while Carney consumed only “one drink,” as he professed… however, it was also quite possible Carney and his acquaintance consumed more than just one drink. SeeState v. Seibel, 163 Wis. 2d 164, 182, 471 N.W.2d 226 (1991) (“Ordinarily, the mere fact that the defendant’s friends were drinking would not constitute evidence of the defendant’s drinking. However, it is evidence of the defendant’s drinking in [this case] because the defendant and his friends were engaged in a joint venture, to wit, traveling together between taverns on their motorcycles.”); cf. State v. Post, 2007 WI 60, ¶36 n.13, 301 Wis. 2d 1, 733 N.W.2d 634.