Facing 3rd DWI and won the refusal hearing on basis of: Possibility vs. Probability. Motion hearing to dismiss based on lack of probable cause for arrest...What might happen?
You should be asking your lawyer, although if you won a refusal hearing without one you are doing well.
Probable cause for arrest is separate from refusal question. You need the video if available.
Feel free to call my office for a free consultation if you do not already have an attorney.
--- Experienced DUI/DWI/OWI/Drunk Driving Lawyer in Madison, Wisconsin
--- Field sobriety "tests"
If you won the refusal hearing on a probable cause argument, you should win a suppression motion in the OWI case, as the burden the prosecutor needs to meet to establish probable cause in a refusal hearing is lower than the bar they need to get over in the OWI case. See the following excerpt from State v. Wille, 185 Wis. 2d 673, 518 N.W.2d 325 (Ct. App. 1994).
"When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim." RESTATEMENT (SECOND) OF JUDGMENTS § 27 (1980). [185 Wis.2d 681] The general rule set forth in the Restatement has exceptions, one of which is:
The party against whom preclusion is sought had a significantly heavier burden of persuasion with respect to the issue in the initial action than in the subsequent action; the burden has shifted to his adversary; or the adversary has a significantly heavier burden than [it] had in the first action.
"RESTATEMENT (SECOND) OF JUDGMENTS § 28(4) (1980) (emphasis added). Wille is the party against whom preclusion is sought and the State is his "adversary."
The State's burden of persuasion at a refusal hearing is substantially less than at a suppression hearing. At the refusal hearing, "the state must only present evidence sufficient to establish an officer's probable cause to believe the person was driving or operating a motor vehicle while under the influence of an intoxicant." Nordness, 128 Wis.2d at 35, 381 N.W.2d at 308. The State need only show that the officer's account is plausible, and the court will not weigh the evidence for and against probable cause or determine the credibility of the witnesses. Id. at 36, 381 N.W.2d at 308. Indeed, the court need not even believe the officer's account. It need only be persuaded that the State's account is plausible. Thus, the Nordness court held,
We view the [refusal] hearing as a determination merely of an officer's probable cause, not as a forum to weigh the state's and the defendant's evidence. Because the implied consent statute limits the [refusal] hearing to a determination of probable cause--as opposed to a determination of probable cause to a reasonable certainty--we do not allow the trial court to weigh the evidence between the [185 Wis.2d 682] parties. The trial court, in terms of the probable cause inquiry, simply must ascertain the plausibility of a police officer's account. See, e.g., Vigil v. State, 76 Wis.2d 133, 144, 250 N.W.2d 378, (1977). [footnote] 5
Nordness, 128 Wis.2d at 36, 381 N.W.2d at 308.
Determining probable cause for a warrantless arrest in the context of a suppression motion is another matter. Plausibility is not enough. The trial court takes evidence in support of suppression and against it, and chooses between conflicting versions of the facts. It necessarily determines the credibility of the officers and other witnesses. State v. Pires, 55 Wis.2d 597, 602-03, 201 N.W.2d 153, 156 (1972). The court then finds the historical facts and determines whether probable cause exists on the basis of those facts.
Thus, the State's burden of persuasion at a suppression hearing is significantly greater than its burden of persuasion at a refusal hearing under § 343.305(9)(c), STATS. Consequently, Wille is not precluded--collaterally estopped--from relitigating the probable cause issue at the suppression hearing."
Your situation sounds like the exact reverse, and you should be able to argue that the State is precluded from relitigating the question. Given the consequences you are facing, a lawyer would be very helpful in properly presenting your argument to the court.
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