State v. Derek V. Schroth

COURT OF APPEALS
DECISION NOTICE
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.
August 25, 2021
A party may file with the Supreme Court a
Sheila T. Reiff 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.

Appeal No. 2021AP733 Cir. Ct. No. 2020TR4273

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

IN THE MATTER OF THE REFUSAL OF DEREK V. SCHROTH:

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

DEREK V. SCHROTH,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Winnebago County:
SCOTT C. WOLDT, Judge. Affirmed.

¶1 NEUBAUER, J.1 Derek V. Schroth appeals from a judgment
convicting him of refusal to submit to a chemical test in violation of WIS. STAT.

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(c) (2019-20).
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
No. 2021AP733

§ 343.305. Schroth contends that the circuit court erred in concluding that the
arresting officer had probable cause to arrest him for operating a motor vehicle while
under the influence of intoxicants (OWI) and in finding that Schroth refused to
submit to chemical testing. We reject Schroth’s arguments and affirm.

BACKGROUND

¶2 The parties do not dispute the facts pertinent to this appeal as testified
to by City of Oshkosh police officer Joey Rebedew, the only witness to testify at
Schroth’s refusal hearing.

¶3 On June 23, 2020, Rebedew was dispatched to an area business where
the employees had called to report that there was an unknown male outside of the
business. The employees reported that the male appeared to be in distress. When
Rebedew arrived at the scene he encountered Schroth, who was “sitting on the
sidewalk just in front of the business.”

¶4 When Rebedew began speaking with Schroth, he “observed slurred
speech and red bloodshot eyes.” Rebedew asked Schroth “why he was there [and]
where he was going,” but Schroth could not provide “a straight answer.” Rebedew
noticed dirt on Schroth’s pants and forearm, and “[a]gain, he didn’t know how to
explain how that happened.” Schroth admitted that he had been drinking alcohol.

¶5 A vehicle in a ditch near the business was still running. It was
registered to Schroth. Schroth was unable to provide an explanation as to how his
vehicle ended up in the ditch despite the fact that no one else was in the area.
Rebedew testified that someone who exited the vehicle in the ditch would have mud
or dirt on him or her because the driver side was on a muddy hill and it appeared
that someone had slipped there while exiting the vehicle.

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No. 2021AP733

¶6 Suspecting impairment, Rebedew asked Schroth to perform field
sobriety tests. Schroth performed the tests and failed them. Rebedew concluded
that Schroth was in fact likely impaired and transported him to a local hospital for a
blood draw. At the hospital, Rebedew read Schroth the Informing the Accused
form. Schroth refused to submit to a blood draw.

¶7 Schroth was subsequently charged with OWI, contrary to WIS. STAT.
§ 346.63(1)(a), with operating a motor vehicle with a prohibited alcohol
concentration (PAC), contrary to WIS. STAT. § 346.63(1)(b), both as felony fourth
offenses, and with refusing to submit to a chemical test, contrary to WIS. STAT.
§ 343.305(9).

¶8 After taking evidence at the refusal hearing, the circuit court
concluded that Rebedew had probable cause to arrest Schroth for OWI and that
Schroth had, after being read the Informing the Accused form, refused to submit to
a chemical test.2 The court explained factors it considered in reaching its probable
cause determination: In response to a complaint, Rebedew “get[s] there and there
is a motor vehicle running in a ditch. It is registered to [Schroth]. [Schroth] is
sitting there. He’s not from the area. Says he comes from a golf outing which tells
me he was driving on a … highway.” The court continued: “Some slip marks from
the ditch in the mud. The only person you find sitting there that doesn’t live there
and is the registered owner of the vehicle is [Schroth].” The court also found that
Rebedew’s testimony and the Informing the Accused form showing that Schroth

2
Schroth stated at the hearing that he was not contesting that he was impaired when
Rebedew made contact with him but was challenging only whether Rebedew had probable cause
to arrest and whether Schroth refused to submit to a blood draw.

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No. 2021AP733

had refused were sufficient evidence from which to conclude that Schroth refused
to submit to testing and found Schroth guilty of the refusal. Schroth appeals.

DISCUSSION

Pertinent Legal Standards

¶9 At a refusal hearing, a defendant may challenge only: (1) whether the
police officer had probable cause to believe the accused drove or operated a vehicle
under the influence of an intoxicant and was lawfully arrested for an OWI offense;
(2) whether the officer properly informed the defendant under the implied consent
statute, see WIS. STAT. § 343.305(4); and (3) whether the defendant improperly
refused a chemical test. Sec. 343.305(9)(a)5.a.-c. We uphold a circuit court’s
findings of fact unless they are clearly erroneous. See WIS. STAT. § 805.17(2). The
application of the implied consent statute to findings of fact is a legal question that
we review de novo. See State v. Piddington, 2001 WI 24, ¶13, 241 Wis. 2d 754,
623 N.W.2d 528.

¶10 “Probable cause to arrest is the sum of evidence within the arresting
officer’s knowledge at the time of the arrest which would lead a reasonable police
officer to believe that the defendant probably committed or was committing a
crime.” State v. Nieves, 2007 WI App 189, ¶11, 304 Wis. 2d 182, 738 N.W.2d 125.
“Probable cause to arrest does not require ‘proof beyond a reasonable doubt or even
that guilt is more likely than not.’ It is sufficient that a reasonable officer would
conclude, based upon the information in the officer’s possession, that the ‘defendant
probably committed [the offense].’” State v. Babbitt, 188 Wis. 2d 349, 357, 525
N.W.2d 102 (Ct. App. 1994) (alteration in original; citations omitted). In
determining whether probable cause exists, we must look to “the totality of the
circumstances.” See State v. Nordness, 128 Wis. 2d 15, 35, 381 N.W.2d 300 (1986).

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No. 2021AP733

There Was Sufficient Probable Cause to Believe That Schroth Had Likely
Committed an OWI Offense Under the Totality of the Circumstances

¶11 On appeal, Schroth challenges only whether the first and third
statutory requirements have been met. See WIS. STAT. § 343.305(9)(a)5.a.-c.
Schroth first argues that Rebedew lacked probable cause that he had committed an
OWI as necessary for Rebedew to request a blood draw.

¶12 As at the refusal hearing, Schroth does not challenge on appeal that
he was impaired when Rebedew made contact with him, instead arguing that
Rebedew did not have probable cause because there was no proof that Schroth had
been operating a motor vehicle while intoxicated.

¶13 We conclude that, under the totality of the circumstances, Rebedew
had probable cause to believe that Schroth had operated a motor vehicle while
impaired. The circuit court found ample facts on which Rebedew could rely in
making this determination. When Rebedew made the decision to arrest Schroth for
OWI, he was in possession of the following information: Rebedew was dispatched
to a business address where employees reported “a male [who] seemed to be in
distress”; upon his arrival, Rebedew saw Schroth sitting on the sidewalk in front of
a business, and Schroth’s vehicle, still running, in a ditch on a muddy hill near the
business; Schroth had slurred speech, bloodshot eyes, and initially was not able to
form a “straight answer” about why he was on a sidewalk in front of the business,
or where he was going; Schroth admitted to Rebedew that he had been drinking
alcohol; after examining the area surrounding the vehicle, Rebedew surmised that
someone exiting the vehicle out the driver side had slipped on the hill and would
likely have mud on him or her; Schroth had mud or dirt on his pants and forearm;
Schroth reported to another officer at the scene that he had been at a golf outing at
a course nearby and was on his way home; Rebedew testified that there was not

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No. 2021AP733

“anybody else around”; at no point during his interaction with police did Schroth
claim that there was another driver; at no point did Schroth assert that he drank the
alcohol after arriving at the business; and, finally, Schroth consented to and failed
field sobriety tests.

¶14 That Schroth drove his vehicle on his way home from the golf course
and into the ditch shortly prior to the officer’s arrival was a reasonable conclusion
based on the totality of the circumstances.3 Schroth’s argument that the officer did
not receive a report of, or directly see, Schroth driving the vehicle does not
undermine this conclusion. There is no requirement that direct, as opposed to
circumstantial, evidence prove that Schroth drove the vehicle into the ditch shortly
before the officer’s arrival. See, e.g., Burg ex rel. Weichert v. Cincinnati Cas. Ins.
Co., 2002 WI 76, ¶27 n.8, 254 Wis. 2d 36, 645 N.W.2d 880 (“‘[O]peration’ for
purposes of the drunk driving laws can be proved circumstantially. A defendant
found intoxicated behind the wheel of a parked car with its engine off but still warm
might well be prosecuted on that circumstantial evidence of recent ‘operation.’”);
State v. Mertes, 2008 WI App 179, ¶¶11-17, 315 Wis. 2d 756, 762 N.W.2d 813 (the
conclusion that a defendant under the influence was “operating” a vehicle may rest
solely on circumstantial evidence; thus, “[t]he issue is not whether Mertes was
operating the vehicle at the moment the police approached him, but rather whether
there was enough circumstantial evidence to prove that he drove the car”).

¶15 “Probable cause is a flexible, commonsense standard” which

“requires only that the facts available to the officer would warrant a person of
reasonable caution to believe that an offense likely was committed.” Nieves, 304

3
A person is guilty of violating Wisconsin’s OWI laws if they drive or operate a motor
vehicle while intoxicated on a public highway or premises held out for public use. See WIS. STAT.
§§ 340.01(22) and 346.61.

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No. 2021AP733

Wis. 2d 182, ¶14. It deals with probabilities, not certainties, and it does not require
an officer to rule out innocent explanations before making an arrest. See id. Here,
Schroth does not contest that he was impaired. The employees’ report of a
distressed individual on the sidewalk in front of a business, along with Schroth’s
running vehicle, physical state with mud on his pants and forearm, and report that
he was on his way home from a nearby golf outing, all of which indicate that he
recently departed the vehicle, and Schroth’s inability to explain the situation,
support the reasonable inference that Schroth was impaired when he drove the
vehicle on a public highway and into the ditch. Based on the totality of
circumstances, Rebedew had the requisite probable cause to arrest Schroth.

The Circuit Court’s Finding That Schroth Refused to Submit to Chemical Testing
Was Not Clearly Erroneous

¶16 Schroth next argues that the circuit court’s finding that Schroth
refused chemical testing is erroneous. Rebedew, who was the only witness to testify
at the refusal hearing, testified that he read Schroth the Informing the Accused form
and that Schroth subsequently refused to submit to chemical testing. On cross-
examination, however, when asked by counsel whether Schroth said “no … or did
he say something else” when asked to submit to chemical testing, Rebedew
responded, “I don’t recall.” Based solely on this exchange, Schroth argues that the
court could not have concluded that Schroth refused to submit to testing. We
disagree.

¶17 After the evidence was presented at the hearing, the circuit court
made a finding that even if Rebedew “doesn’t remember exactly what [Schroth]
said[, Rebedew] still remembers that [Schroth] refused to take the test.” “Findings
of fact shall not be set aside unless clearly erroneous, and due regard shall be given
to the opportunity of the [circuit] court to judge the credibility of the witnesses.”

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No. 2021AP733

See WIS. STAT. § 805.17(2). Reversal is not required simply because some evidence
might support a contrary finding. Cogswell v. Robertshaw Controls Co., 87 Wis. 2d
243, 249, 274 N.W.2d 647 (1979). Rather, we “examine the record, not for evidence
to support a finding which the [circuit] court did not make, but for facts to support
the finding the [circuit] court did make.” Hawes v. Germantown Mut. Ins. Co., 103
Wis. 2d 524, 543, 309 N.W.2d 356 (Ct. App. 1981).

¶18 Rebedew testified that Schroth refused the blood draw. The State also
offered into evidence the Informing the Accused form, which likewise shows
Schroth refused the blood draw. This evidence is sufficient to support the circuit
court’s finding that Schroth refused the blood test despite Schroth’s assertions to the
contrary.

CONCLUSION

¶19 For the foregoing reasons, we conclude that there was sufficient
probable cause to believe that Schroth had committed an OWI and, thus, to ask him
to submit to chemical testing. We further conclude that evidence in the record
supports the circuit court’s finding that Schroth refused to submit to chemical testing
and therefore it was not clearly erroneous.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

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