The Wisconsin Court of Appeals is reviewing a case involving an Ogdensburg woman convicted of operating while intoxicated (OWI) in April 2010.
At issue is whether a citizen is allowed to arrest someone for a traffic violation.
At approximately 8 p.m. Saturday, Aug. 1, 2009, Adam Sparks was driving his 1994 Chevy Blazer northbound on County Road E, in the town of Helvetia.
A 28-year-old construction worker from Rosholt at the time, Sparks was also in the process of starting his own towing business. He had red and amber strobe lights attached to his vehicle.
About two miles north of State Highway 161, Sparks came up behind a Chevy Trailblazer driving erratically and at least 10 miles below the speed limit.
“I didn’t know if they were having a serious medical condition, or if something, you know, if they were drunk or whatever,” Sparks recalled during testimony at a court hearing on Jan. 15, 2010. “I stayed behind them, because I was going to go around them and just, you know, not worry about it. But it was so bad, where there was at least 10 to 15 different vehicles swerving, the oncoming vehicles, that were traveling south, going down into the ditch to miss the black Trailblazer.”
Sparks testified that he could not just let it go because his own brother had been killed by a drunken driver.
“I was like, something is going to happen here, someone is going to get killed or seriously injured,” Sparks said at the hearing. “I’ve got to try to do something.”
Sparks activated his emergency amber and red strobe lights to warn oncoming motorists and called 911 on his cell phone. Then he passed the Trailblazer, slowed down and came to a stop in the middle of the highway, forcing the Trailblazer to stop.
“I walked back to her vehicle and her window, her driver’s side window, was halfway down,” Sparks said. “I reached in the window, threw it in park, grabbed the keys. I was still on the phone, told dispatch what happened, exactly what was going on. They said be careful.”
The driver, later identified as Heather M. Krueger, 34, Ogdensburg, repeatedly asked Sparks to return her keys and Sparks refused.
A few minutes later, law enforcement arrived at the scene. Waupaca County Sheriff’s Deputy Dan Lewinski cited Krueger for OWI and operating with a prohibited blood-alcohol level.
Under Wisconsin law, first-time drinking-and-driving offenses are traffic violations, not criminal charges.
On Aug. 19, 2009, attorney John Miller Carroll, of Appleton, entered a plea of not guilty to the charges on Krueger’s behalf.
On Oct. 20, 2009, Carroll filed a motion seeking to suppress all evidence gathered from Sparks’ “illegal arrest” of Krueger when he forced her vehicle to stop.
Specifically, Carroll sought to suppress the results of any blood tests, any statements Krueger may have made after her arrest and the results of any field sobriety tests.
He argued that any evidence seized following an illegal arrest would be in violation of the Fourth Amendment, which protects citizens from the government making unreasonable searches and arbitrary arrests.
Wisconsin statutes do not provide for citizen arrests. The authority for one citizen to arrest another is governed by common law. Prior court decisions have indicated that citizen may make an arrest when a felony or misdemeanor criminal offense is being committed in their presence. But precedents are not clear regarding conduct that is not a criminal offense, but that involves a possible “breach of peace.”
Carroll argued that Sparks’ citizen’s arrest was illegal, so everything that resulted from that arrest should be suppressed as evidence in a trial.
In a Feb. 12, 2010, hearing before Waupaca County Circuit Court Judge John Hoffmann, Carroll said, “From a common-sense perspective, if people are allowed to do this, it opens the floodgates … anyone could potentially be pulled over by anyone for any reason.”
Assistant District Attorney Vicki Clussman noted at the February 2010 hearing that Sparks called 911 and initially activated his lights to alert other motorists “to the danger he believed was present.”
She said a citizen, no more than an officer, can be aware if the apparently drunken driver is committing a felony, a misdemeanor or an ordinance violation, because these classifications are based on prior convictions.
However, regardless of what legal classification the conduct falls under, driving while intoxicated “always involves a breach of the peace,” and a citizen has the authority to make an arrest if there is a breach of the peace, according to Clussman.
Hoffmann denied Carroll’s motion to suppress the evidence and subsequently convicted Krueger of OWI at a bench trial on April 8, 2010.
Carroll appealed the case on the grounds that the citizen’s arrest was not authorized.
In reviewing prior case law, Carroll argued to the Court of Appeals that “a citizen can make a felony arrest without a warrant based on probable cause, but can only make a warrantless arrest for a misdemeanor if the misdemeanor is committed in the citizen’s presence and constitutes a breach of the peace.”
He noted in his brief that Krueger’s conduct was not criminal in nature.
“Krueger was never criminally charged in relation to this incident, but rather only received a civil traffic citation,” Carroll said.
Pointing to a 1991 appellate decision, City of Waukesha v. Gorz, Carroll stated, “It was expressly stated that a lawful citizen’s arrest must be predicated on a felony or misdemeanor violation, not ‘any observed violation of the law.'”
In response to the prosecution’s argument that an officer or a citizen would not know an erratic driver’s record prior to making a stop in order to determine if it would be a felony or not, Carroll said such an argument “would tend to state that a citizen, as same a police officer, can stop another citizen, against his or her will, in order to conduct a law enforcement investigation to ascertain if a crime has been committed or is being committed.”
Carroll said the prosecution was establishing a subjective standard by which to determine if a citizen’s arrest was legal. He advocated an objective standard “by analyzing the end result: either the arrestee’s actions were misdemeanor/felonious in nature or they were not.”
In her brief, Clussman argued that regardless of whether the charge was classified as a felony, a misdemeanor or a traffic violation, “operating a motor vehicle under the influence of an intoxicant always involves a breach of the peace.”
The Court of Appeals likewise concluded that, “driving while intoxicated is a dangerous and violent act.”
“Adam Sparks had reason to believe that the defendant was committing a breach of the peace. He testified that he witnessed the vehicle driven by the defendant cross over the fog line. He also testified that the vehicle was all over the road, and approximately 15 vehicles took evasive action to prevent a crash with the defendant’s vehicle,” Clussman said.
She further noted that Sparks had reason to believe that Krueger would continue to breach the peace because she wanted her keys back, indicating “her intent to resume operating her vehicle.
“It was reasonable for Mr. Sparks to keep the keys from her in order to prevent her from doing so, and to protect the other drivers on the roadway,” Clussman said.
The court records and briefs were submitted to District 4 of the Court of Appeals on Jan. 4. The case is awaiting a decision.