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COURT OF APPEALS
NOTICE
DECISION
DATED AND FILED
This  opinion  is  subject  to  further  editing.  If
published, the official version will appear in the
bound volume of the Official Reports.
March 7, 2000
                                                                                                                                                                      A  party  may  file  with  the  Supreme  Court  a
                                                                                                                                                                      petition  to  review  an  adverse  decision  by  the
                                                                                              Cornelia G. Clark
                                                                                                                                                                      Court of Appeals.   See WIS. STAT. § 808.10 and
                                                                                              Acting Clerk, Court of Appeals
                                                                                                                                                                      RULE 809.62.
                                                                                              of Wisconsin
No.                                                                                           99-2463-CR
STATE OF WISCONSIN                                                                            IN COURT OF APPEALS
                                                                                              DISTRICT III
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
LAWRENCE J. VAN BOXTEL,
DEFENDANT-APPELLANT.
APPEAL  from  a  judgment  of  the  circuit  court  for  Outagamie
County:  JOSEPH TROY, Judge.  Affirmed.
¶1                                                                                            CANE,  C.J.      Lawrence  Van  Boxtel  appeals  his  conviction  for
operating a motor vehicle while under the influence of an intoxicant  (OWI) in
violation of WIS. STAT. § 346.63(1)(a) (1997-98).1   He contends that the police
1 This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(c) (1997-98).
All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.




No. 99-2463-CR
officers did not have probable cause to arrest him, and therefore the trial court
erred by denying his motions to suppress evidence and to dismiss based on lack of
probable cause. Because the trial court correctly denied the motions, the judgment
is affirmed.
¶2                                                                                        Van Boxtel argues that the information available to the officer at the
time of the arrest was insufficient to establish probable cause.   The trial court
accepted Van Boxtel’s argument that the arrest occurred when the officer escorted
Van Boxtel to the squad car.    Therefore, as did the trial court, this court will
review the circumstances leading to the arrest, but will not consider information
attained after Van Boxtel was led to the squad car.
¶3                                                                                        On January 1, 1999, at approximately 2:35 p.m., a woman whose
truck was parked on the side of the road flagged down a Town of Oneida police
officer.   She told the officer that the silver car in the ditch beside her truck had
been run off the road by a red truck she had been following.   She then pointed to
the red truck parked crossways in a driveway across the intersection.   She told the
officer that when following the red truck, she observed it weaving all over the road
before it ran the silver car off the road.   The officer then went to the red truck and
found Van Boxtel behind the steering wheel and slightly injured.    The officer
indicated that Van Boxtel had slurred speech, an odor of alcohol from his breath
and difficulty in responding to questions.    In addition, a neighbor who knew
Van Boxtel stated that he observed him in the truck before the officer arrived and
concluded  immediately that he  was intoxicated.    The  trial court  accepted the
neighbor’s testimony for the purpose of supporting the officer’s conclusion that
Van Boxtel was intoxicated.
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No. 99-2463-CR
¶4                                                                                       On  appeal,  this  court  reviews  a  probable  cause  determination
de novo.   See State v. Babbitt, 188 Wis. 2d 349, 356, 525 N.W.2d 102 (Ct. App.
1994).    In OWI cases, probable cause will be found "where the totality of the
circumstances within the arresting officer's knowledge at the time of the arrest
would  lead  a  reasonable  police  officer  to  believe                                 …  that  the  defendant  was
operating a motor vehicle while under the influence of an intoxicant."   State v.
Nordness, 128 Wis. 2d 15, 35, 381 N.W.2d 300 (1986).   This is a commonsense
test, based on probabilities.   The facts need only be sufficient to lead a reasonable
officer to believe that guilt is more than a possibility.     See County of Dane v.
Sharpee, 154 Wis. 2d 515, 518, 453 N.W.2d 508 (Ct. App. 1990).
¶5                                                                                       Van Boxtel argues that there may be other explanations unrelated to
intoxicants for his behavior leading to the accident, such as a mechanical failure,
and these facts, without further investigation, are insufficient to conclude there
was probable cause.   This court is not persuaded.     The mere fact that an innocent
explanation for the driver’s conduct, that is mechanical failure, may be imagined is
not enough to defeat probable cause.   See State v. Welsh, 108 Wis. 2d 319, 347,
321 N.W.2d 245 (1982) (Abrahamson, J., dissenting), rev’d on other grounds, 466
U.S.  740  (1984).    In  making a  determination of  probable  cause,  the  relevant
inquiry is not whether the particular conduct is “innocent” or “guilty.”   United
States v. Sokolow, 490 U.S. 1, 10 (1989).   Here, the facts were sufficient to lead a
reasonable police officer to conclude Van Boxtel had probably been operating a
motor vehicle while under the influence of an intoxicant.   The citizen’s report of
Van Boxtel’s erratic driving behavior, coupled with the arresting officer’s personal
perception of Van Boxtel’s odor of alcohol, slurred speech and abnormal response
to questions are sufficient to establish probable cause for the arrest.
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No. 99-2463-CR
¶6                                                                                       Therefore, the trial court properly denied the motion to suppress the
blood test results and the motion to dismiss by concluding there was sufficient
evidence for the officer to reasonably believe Van Boxtel had been operating a
motor  vehicle  while  under  the  influence  of  an  intoxicant.    The  judgment  of
conviction is affirmed.
By the Court.—Judgment affirmed.
                                                                                         This  opinion  will  not  be  published.     See  WIS.  STAT.  RULE
809.23(1)                                                                                (b)4.
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