Legal Question in DUI Law in Wisconsin

Probable Cause to Arrest for DUI at Accident Scene

In WI, as in most states, officers have a duty to investigate an accident such as your brother's, even if it was not his fault (such as being caused by a deer). Unfortunately, the combination of an odor of alcohol and being an involved driver on the scene of an accident therefore becomes a near certain recipe for a drunken driving arrest. Although probable cause would normally be required before the officer could stop a vehicle and detain someone for further testing, having one's vehicle disabled saves him the trouble and lowers the standard for evidence required before the officer can go to the next step in investigating the driver. WI mandatory accident report forms contain a line wherein the officer must determine contributing factors, and one such factor is the possible influence of alcohol or drugs. Hence, the officer was only doing what he was required to do to fill out the accident report. I also doubt that your brother really "passed" the field sobriety tests, since very few people can pass them even when sober. In order to encourage cooperation, the officers will often tell the suspect that they are doing well. Their reports, however, usually tell otherwise, providing a laundry list of complex instructions and maneuvers in the suspect failed to perform correctly. Many officers have admitted to me off the record that they have rarely (if ever) had anyone pass a field sobriety test. I would be curious what your brother's blood test result was--if it was below a .05, he is presumed NOT to be under the influence to the point of impairment. This would often lead to dismissal of the ticket. Higher readings, even if below .08, can still support a conviction if other evidence of intoxication is present. Of course, for drivers with prior convictions, the required alcohol content for a conviction of the technical blood alcohol content violation is far lower; only a .02 (which a single drink will cause). No proof of impairment is required for that violation. All this being said, however, your brother should consider challenging the probable cause to arrest if he is certain that he was not showing any signs of intoxication and passed all the field tests, and he should make the final decision following consultation with a experienced criminal attorney.