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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.
February 22, 2006
A party may file with the Supreme Court a
Cornelia G. Clark                                                                                                     petition to review an adverse decision by the
Clerk of Court of Appeals                                                                                             Court of Appeals.   See WIS. STAT. § 808.10
                                                                                                                      and RULE 809.62.
                                                                                                                      Cir. Ct. No.   2005TR382
Appeal No.                                                         2005AP1954
STATE OF WISCONSIN                                                                                                    IN COURT OF APPEALS
                                                                                                                      DISTRICT II
IN THE MATTER OF THE REFUSAL OF MELLISSA JACOBSON:
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
MELLISSA JACOBSON,
DEFENDANT-APPELLANT.
APPEAL from an order of the circuit court for Washington County:
ANNETTE K. ZIEGLER, Judge.   Affirmed.




No.   2005AP1954
¶1                                                                                               BROWN,  J.1                                                              Mellissa  Jacobson  appeals  a  circuit  court  order
revoking her operating privileges for refusing to submit to a chemical test of her
blood.   Her primary contention is that the State had no legitimate reason to register
a refusal, despite her initial expressions, because she eventually submitted to the
blood  draw  and  because  the  officer  was  entitled  to  order  the  blood  test
notwithstanding any refusal.   We disagree.   The implied consent law was designed
to enable an arresting officer to expeditiously obtain physical evidence because
time is essential to obtaining accurate test results.   Accuracy is paramount to the
legislative  objective  of  obtaining  convictions  against  unsafe  drivers  while
conserving judicial resources.   We also reject Jacobson’s assertion that the officer
lacked probable cause to arrest her.
¶2                                                                                               The following are the undisputed facts of this case.   At 3:58 a.m. on
January 30, 2005, a village of Germantown police officer Toni Olson arrived at
the scene of an automobile accident.   Olson briefly stopped at the scene of the
accident and observed Jacobson’s vehicle in a snow-filled cornfield.   Olson then
proceeded to the hospital, where the occupants of the vehicle, Jacobson and her
husband, were receiving treatment for their accident injuries.
¶3                                                                                               Upon Olson’s arrival, a Mequon police sergeant informed her that
both  occupants  appeared  to  be  intoxicated.     Olson  then  conducted  several
interviews with Jacobson and her husband.   She interviewed the husband first and
then  spoke  with  Jacobson.     When  Olson  entered  Jacobson’s  room,  she
immediately smelled intoxicants.   Jacobson was lying on a bed, and the officer had
1   This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(c) (2003-04).   All
references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.
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No.   2005AP1954
some difficulty waking her.    Olson concluded that Jacobson was more likely
passed out than asleep.   When Jacobson awoke, her eyes were extremely red and
bloodshot, and her speech was slurred as she spoke.   She admitted to drinking four
glasses of wine that evening.   Jacobson told the officer that she and her husband
left a Christmas party around 1:30 a.m. to pick up their son.   Jacobson stated that
she was the initial driver of the vehicle but that they pulled over and switched
places a couple of blocks into the drive.   Jacobson then told the officer that she
and her husband were lost at the time of the accident, which had occurred because
they were fighting.   The officer noted that Jacobsen appeared very emotional and
observed that her front tooth was chipped.
¶4                                                                                       Following this initial interview with Jacobson, Olson spoke to the
husband a second time.   His account of what happened differed from Jacobson’s.
He corroborated Jacobson’s assertion that he was driving, but his story was that
they were following friends to where they were going to spend the night and that
they were not fighting at the time of the accident.   He stated that he had exited the
vehicle out of the passenger door because the driver’s side door was jammed shut.
The officer had performed field sobriety tests and placed Jacobson’s husband
under arrest when she received a call from one of the other officers who was still
at the scene.
¶5                                                                                       Olson learned some new information from her colleague.   He told
her that the driver’s side door opened fine and that there were footprints in the
snow coming from that side of the vehicle.   He also stated that the driver’s seat
was forward for a shorter driver and that the officers had found two long strands of
burgundy hair, one in the driver’s side door and another on the driver’s side visor.
Jacobson has long, burgundy hair.
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No.   2005AP1954
¶6                                                                                        After this conversation with her colleague, Olson briefly spoke with
Jacobson’s husband again.   She confronted him with the discrepancies between his
story  and  his  wife’s  story  and  informed  him  she  would  need  to  speak  with
Jacobson again.   Jacobson insisted that her husband had driven, that she was very
intoxicated and not stupid enough to drive in that condition after having been
arrested for operating a motor vehicle while intoxicated (OWI) in the past.   When
Olson  told  Jacobson  about the  evidence  that had been gathered  at the  scene,
Jacobson began to cry and became very upset,  yelling at Olson.    Olson then
checked  Jacobson  for  a  possible  seatbelt  mark.    Olson  observed  a  bruise  on
Jacobson’s left upper shoulder.   The officer felt that this bruise was consistent with
a bruise caused by a driver’s side seatbelt in an accident.    Based on her own
observations, the inconsistencies in the stories Jacobson and her husband gave,
and the evidence from the scene of the accident, Olson placed Jacobson under
arrest for OWI.
¶7                                                                                        Olson next read Jacobson the Informing the Accused form and asked
her to submit to a chemical test of her blood.   Jacobson became verbally abusive
and informed the officer that she would not cooperate with any tests.    Olson
warned her that her consent was not needed to obtain the blood and again asked
Jacobson whether she was going to cooperate.   Jacobson again told the officer that
she was not giving blood and crossed her arms over her chest.   Olson marked the
Informing the Accused form as a refusal.
¶8                                                                                        The nurse then summoned the lab technician to Jacobson’s room to
take  the  blood.    The  officer  again  told  Jacobson  that  whether  or  not  she
cooperated, the blood would be taken.   Olson also informed Jacobson that her
license would be revoked because of the refusal, and Jacobson again yelled at the
officer that she was not going to get any blood.   The Mequon police sergeant stood
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No.   2005AP1954
by to assist because of Jacobson’s uncooperative behavior.   She continued to be
uncooperative while the lab technician prepared to administer the test, holding her
arms close to her.   When the technician was ready to draw the blood, Jacobson
continued to yell at Olson, but she did extend her arm for the technician.
¶9                                                                                             The State charged Jacobson with a refusal pursuant to WIS. STAT.
§ 343.305.   Jacobson challenged the refusal charge at an April 13, 2005 refusal
hearing.   The circuit court considered whether the arresting officer had probable
cause for the arrest and whether the State had any basis for pursuing the refusal
charge.    According to  Jacobson, the purpose of  the implied consent law was
satisfied  when  the  officer  obtained  her  blood  so  a  refusal  prosecution  was
unnecessary and vindictive.   The circuit court rejected Jacobson’s arguments, and
she appeals.
¶10    We first address whether the officer had probable cause to arrest
Jacobson.   Jacobson claims probable cause did not exist because the officer had no
proof that Jacobson drove the vehicle.   We review de novo whether undisputed
facts constitute probable cause.    State v. Babbitt,  188 Wis.  2d  349,  356,  525
N.W.2d 102 (Ct. App. 1994).   When a court determines probable cause at a refusal
hearing, it does not weigh the State’s evidence against the defendant’s evidence.
State  v.  Nordness,  128  Wis.  2d  15,  36,  381 N.W.2d  300  (1986).    It  merely
assesses the “totality of the facts and circumstances faced by the officer at the time
of the arrest to determine whether he or she reasonably believed that the defendant
had committed an offense.”   Dane County v. Sharpee, 154 Wis. 2d 515, 518, 453
N.W.2d 508 (Ct. App. 1990).   The officer’s observations “need only be sufficient
to  lead  a  reasonable  officer  to  believe  that  guilt  is  more  than  a  possibility.”
Village of Elkhart Lake v. Borzyskowski, 123 Wis. 2d 185, 189, 366 N.W.2d 506
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No.   2005AP1954
(Ct. App. 1985).   Thus, “[t]he trial court simply must ascertain the plausibility of a
police officer’s account.”   Nordness, 128 Wis. 2d at 36.
¶11    The arresting officer here did have probable cause to arrest Jacobson
based on the totality of the circumstances.   Before Olson met with Jacobson, the
Mequon  police  sergeant  had  told  her  that  both  Jacobsons  appeared  to  be
intoxicated.    Olson’s own observations corroborated this information.    During
Olson’s  meeting with  Jacobson, the officer observed that Jacobson was  more
likely passed out than asleep, smelled of intoxicants, had red, bloodshot eyes and
slurred speech, and was emotional.   Additionally, Jacobson admitted to being very
intoxicated and to having had four glasses of wine that evening.   A reasonable
officer could have determined that Jacobson was intoxicated from the foregoing
evidence.   Olson also had reasonable grounds to believe that Jacobson operated
the couple’s vehicle in her intoxicated state.   Most important was her admission
that she had driven the first few blocks after leaving the party.   Further, Olson was
entitled  to  consider  evidence  imparted  to  her  by  her  colleague  at  the  scene
indicating that Jacobson, not her husband, was in the driver’s seat at the time of
the  accident.    Again,  the  seat  was  pushed  forward  for  a  shorter  driver,  and
Jacobson’s  hair,  not  her  husband’s,  was  found  in  the  door.    In  addition,  the
chipped front tooth would be consistent with a driver’s face hitting the steering
wheel during an impact.   Further, the officer was warranted in discounting the
husband’s admission that he was the driver, given that the evidence at the scene
did not corroborate his story about exiting from the passenger’s side because of a
jammed  driver’s  side  door.    Also,  Olson  testified  a  red  mark  or  bruise  on
Jacobson’s left shoulder was consistent with a driver’s side seatbelt.   Based on the
facts discussed above, a reasonable police officer could have believed that it was
“more than a possibility” that Jacobson committed the offense of OWI.
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No.   2005AP1954
¶12    Notwithstanding that all of  the above shows probable cause that
Jacobson was the driver, including her own admission that she was driving at least
part of the time, we will indulge Jacobson on her three main arguments as to why
probable  cause  did  not  exist.    Jacobson  alleges  that  the  trial  court  “ignored”
evidence that both Jacobson and her husband said that her husband was driving.
She also posits that the court should have attached no weight to the officer’s
observation of a bruise on her left shoulder because it “is a matter of common
knowledge that it takes several days after the injury for a bruise to appear on the
human skin.”    Finally, Jacobson alleges that the burgundy hair, found on the
driver’s side, should be discounted because this was a rollover accident.
¶13    We reject all three of these arguments.   First, the trial court did not
“ignore” the claim by Jacobson and her husband that her husband was the driver.
Rather, by not giving any consideration to that self-serving testimony, we are
confident that the court simply refused to attach any credibility to the claims.
Second, as to the claim that it is common knowledge that bruises do not appear for
several days, we are satisfied that the common knowledge is that the color of a
bruise changes with age.   Within the initial time of trauma until two days out, the
bruise is red—which is consistent with the testimony here.   Then, it changes to
blue or purple after that and may change color after that.   Even if our conception
of common knowledge is incorrect, this just goes to show that perhaps there is no
“common”  knowledge  and  expert  testimony  should  have  been  adduced  by
Jacobson on the subject.   Third, Jacobson has provided no evidence supporting the
claim that hair from a driver would not be found on the driver’s side in a rollover
accident.   Her claim that there is such a connection is based totally on speculation,
and courts do not find historical facts based on speculation.    We conclude that the
officer had plausible reason to determine that Jacobson was the driver.
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No.   2005AP1954
¶14    We  next  address  Jacobson’s  unwarranted  prosecution  argument.
According to Jacobson, the purpose of the implied consent law is simply to allow
the  State  to  obtain  physical evidence  of  intoxication.    She  contends that this
purpose was satisfied here because she did not prevent the technician from taking
her blood.   Thus, she claims, there was simply no legitimate reason to charge her
with a refusal.   Jacobson also maintains that because State v. Bohling, 173 Wis. 2d
529,  533,  494 N.W.2d  399  (1993), allows an officer to order a chemical test
regardless  of  the  subject’s  cooperation,  no  legitimate  objective  is  served  by
charging an arrestee with a refusal.
¶15    We deem it important to reaffirm the basic policy behind the implied
consent  law.    See  WIS.  STAT.  § 343.305(2)  (“Any  person  who  …  drives  or
operates a motor vehicle upon the public highways of this state … is deemed to
have given consent to one or more tests of his or her breath, blood or urine, for the
purpose of determining the presence or quantity in his or her blood or breath, of
alcohol ….”); § 343.305(9) and (10) (improper refusal shall result in revocation of
license).    Our  supreme  court  has  recognized  that  the  purpose  of  the  implied
consent law is to “get drunk drivers off the road as expeditiously as possible and
with as little [as] possible disruption of the court’s calendar.”   See State v. Brooks,
113 Wis. 2d 347, 359, 335 N.W.2d 354 (1983).   This purpose is served when an
arrestee submits to the chemical test and cooperates with the officer.    Results
showing a high blood alcohol level will facilitate the State’s efforts to obtain
convictions.   Results that do not strongly corroborate intoxication, on the other
hand,  will  likely  not  result  in  prosecutions,  thereby  allowing  the  courts  to
concentrate  their  scarce  judicial  resources  on  cases  involving  truly  dangerous
drivers.
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No.   2005AP1954
¶16    Prior to Bohling, intoxicated individuals who withheld their consent
profited from their wrongful refusals because the refusal prevented the State from
obtaining physical evidence probative of their guilt.   Cf. generally Bohling, 173
Wis. 2d at 546 (first Wisconsin case to allow chemical tests notwithstanding a
refusal; noting the importance of physical evidence to the State’s case).    The
practical  effect  of  Bohling  was  to  eliminate  a  drunk  driver’s  disincentive  to
cooperate with law enforcement officers, thereby reinforcing the implied consent
law.   We therefore reject Jacobson’s suggestion that Bohling renders the implied
consent law obsolete.
¶17    We also reject Jacobson’s “all’s well that ends well” assumption that
because she “eventually” submitted to the blood draw, the State was obligated to
ignore  her  initial  uncooperative  behavior  and  verbal  expressions  of  refusal.
Bohling recognized the vital role of timing in obtaining a blood sample for both
the State and the defendant.   The court recognized an  “exigent circumstances”
exception to the constitutional requirement of a warrant because of the rate at
which alcohol is eliminated from the blood.   Id. at 533, 539.   The court further
pointed out that delay in administering a chemical test can also prejudice the
arrestee’s interests.   It noted that when an individual stops drinking, his or her
blood alcohol level initially rises for a period of time.   Id. at 547.   An individual
who does not immediately cooperate with the arresting officer therefore runs the
risk of an artificially high test result.   See id.   Such results prejudice the State’s
interest in pursuing OWI charges only against drivers who are drunk and pose a
threat to the safety of other drivers.   Thus, an arrestee’s “initial refusal” subverts
the goals of the implied consent statute regardless of how docile and compliant the
person  becomes  at  the  time  the  test  is  actually  administered.     Jacobson’s
unequivocal verbal refusal and the initial uncooperative conduct that accompanied
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No.   2005AP1954
it  constituted  an  immediate  violation  of  the  law  for  which  she  was  properly
prosecuted.
¶18    To conclude, the wealth of facts discussed above demonstrates that
the officer did have probable cause to arrest Jacobson.   Moreover, the State had
every right to prosecute her for her “initial refusal” to submit to a blood draw.   The
State has an important interest in obtaining physical evidence without undue delay
that could  prejudice  the test results.    The  law requires a subject’s immediate
cooperation in order to properly effectuate the legislative intent of expeditiously
convicting intoxicated drivers while not wasting judicial resources on prosecuting
others.   We affirm.
By the Court.—Order affirmed.
Not recommended for publication in the official reports.   See WIS.
STAT. RULE 809.23(1)(b)4.
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