State v. Welsh

321 N.W.2d 245, 108 Wis. 2d 319, 1982 Wisc. LEXIS 2729

• Court: Wisconsin Supreme Court
• Decided: July 2, 1982
• Docket: 80 — 1686
• Status: Published

Opinions

WILLIAM G. CALLOW, J.

This is a review of a May 26, 1981, decision of the court of appeals vacating an order of Dane County Circuit Judge Mark A. Frankel and remanding the matter to the circuit court for further proceedings. We reverse the decision of the court of appeals and affirm the order of the circuit court. The trial court revoked the defendant’s motor vehicle operator’s license for sixty days pursuant to his unreasonable refusal to submit to a breathalyzer test, as required by sec. 343.305(2) (a),.Stats. 1977,¹ after having been issued a citation for the operation of a motor vehicle while under the influence of an intoxicant. Section 346.63(1), Stats. 1977.²

The defendant challenges the officer’s warrantless arrest in his residence as violating the Fourth Amendment of the United States Constitution and Article I, section 11 of the Wisconsin Constitution.³ The circuit court upheld this warrantless arrest concluding that probable cause to believe that the defendant had been operating a motor vehicle while under the influence of an intoxicant, coupled with the existence of exigent circumstances, justified the officers’ entry into the defendant’s residence. The defendant appealed from this circuit court order, and a single judge of the court of appeals reversed the trial court, holding that, although the officers’ warrantless arrest was unreasonable, thereby violating the Fourth and Fourteenth Amendments, the absence of a finding regarding a consensual entry necessitated remanding the case on that issue. We affirm the findings of the circuit court, holding that the co-existence of probable cause and exigent circumstances in this case justifies the warrant-less arrest and obviates any further discussion concerning the issue of consensual entry.

Prior to resolving the merits of this case, the state challenges the single-judge ruling of the court of appeals, contending that this should have been decided by a three-judge panel. Section 752.31(2), Stats. 1977, provides a categorization of cases subject to review by a single court of appeals judge, as opposed to a three-judge panel.⁴ This dispute focuses on whether the defendant’s unreasonable refusal to submit to a breathalyzer test pursuant to sec. 343.305(2) (a), Stats. 1977, falls within the purview of sec. 752.31(2) (c), Stats. 1977, authorizing a single-judge appeal in cases involving violations of traffic regulations. The state contends that the statutory penalty imposed for violation of a traffic regulation, as defined in sec. 345.20(1) (a), Stats. 1977, is a forfeiture. According to sec. 288.01, Stats. 1977, however, a forfeiture is defined as “any penalty, in money or goods” and the penalty pursuant to violating sec. 343.305, Stats. 1977 is a suspension of operating privileges. Consequently, the state argues that a suspension is not a forfeiture and therefore is not included within the parameters established in sec. 752.31(2), Stats. 1977. The defendant’s timely notice of appeal conferring jurisdiction to the court of appeals vitiates the need to determine whether sec. 343.305(2) (a), Stats. 1977, is a traffic regulation. For if the court of appeals in its exercise of jurisdiction erroneously assigns this case to a single judge rather than to a panel, this alleged error, and we need not rule whether the court of appeals erred in this case, was waived when neither the state nor the defendant interposed a timely objection. Although resolving this issue is unnecessary in the present case, it is instructive to note that sec. 752.31(2) (c), Stats., 1979-1980, was recently amended to include license suspension “cases under sec. 343.305,” thereby expressly incorporating these cases within the parameters of sec. 752.31(2) (c), authorizing a single judge appeal. See sec. 2, ch. 152, Laws of 1981 (effective March 31,1982).

The factual sequence underlying this dispute can be summarized through the testimony of the sole witness, Randy Jablonic. On the evening of April 24, 1978, Jab-lonic, a University of Wisconsin rowing coach, was driving alone in his truck. It was raining. He noticed that the driver of the automobile ahead of him was experiencing difficulty in operating his vehicle. In addition to the automobile’s erratic speed, it was moving from side to side, crossing into the opposing lane, barely missing a road sign, a median strip, and the oncoming traffic. The vehicle ultimately left the road entirely and drove into a field where it either became stuck or stalled.

Jablonic, concerned that the car might return to the road and fearful “[bjecause I realized [he] would probably kill somebody” remained at the scene blocking the car to be certain that the car did not return to the highway. A motorist stopped and Jablonic requested her to alert the police. An officer arrived at the scene shortly thereafter.

Prior to the officer’s arrival, however, the driver left the automobile in the field and approached Jablonic’s truck. Jablonic testified that the driver asked him for a ride home but Jablonic replied that they should wait for assistance in removing or repairing the car, rather than leaving it in the field. At this point the driver became alarmed and “broke into a very slurred conversation— ‘you wouldn’t get your cops’ — or something it was very insecure and not very controlled conversation.” The driver then left Jablonic and headed back across the field abandoning the automobile and departing from the scene of the accident.

The police arrived “practically immediately upon, . . . his departure” and spoke with Jablonic who had remained at the scene. Jablonic responded to the officer’s inquiry by describing his observations of the automobile and its driver. Jablonic told the officer that he believed that the driver “was very inebriated or very sick or not very much in possession of his faculties or ability to perform.” When asked at trial what formed the basis of his opinion that the defendant was inebriated, he testified “. . . the erratic motion of the car, and then the staggering and slurred speech that [the driver] exhibited when he was trying to talk” constituted the basis upon which he formed his conclusion that the driver was intoxicated. He further described the driver’s walk as unsteady and unsure. He stated that when he spoke with the driver at the roadside he had remained in his truck. Consequently, he declared that he had “no opportunity to smell the [driver’s] breath.” Jablonic further testified that he commonly “see[s] many inebriated people, unfortunately,” demonstrating his familiarity with the symptons of intoxication. Although Jablonic stated that “he [the driver] was very inebriated or very sick or not very much in possession of his faculties or ability to perform,” this statement, when considered within the context of the entire record, demonstrates the propriety of the trial judge’s conclusion that Jablonic conveyed the definite impression that the driver was intoxicated. Jablonic’s reference to illness was merely a remote possibility which provided an alternative, more charitable explanation — illness—to account for his erratic driving, unsteady movements, and slurred speech. The record supports the trial judge’s ruling that the officer had probable cause to believe that the driver was intoxicated.

At the scene of the accident the officer ran a license check to determine the vehicle owner’s identity. Although the officer could not conclude that the owner of the abandoned automobile was necessarily its driver, he did correctly recall that he was involved in the arrest of the owner in an alcohol-related disturbance within two weeks prior to this accident. The officer’s recollection was sufficiently pertinent to provide additional evidence to support the existence of probable cause.

Acting upon his collective knowledge of the situation, the officer proceeded immediately to the defendant’s residence which was located near the scene of the accident. Attempting to confirm his belief that the defendant had, in fact, been driving his abandoned vehicle while under the influence of an intoxicant, the officer, arriving at the defendant’s residence, asked the defendant’s stepdaughter if the defendant was at home. The officer testified that she replied, he had “just stumbled in . . . .” “He is upstairs, and motioned that way — towards the stairs, allowing us to pass.” Proceeding up the staircase, the officer encountered the defendant’s wife. He testified that she asked:

“ ‘What is going on,’ . . . again, we explained there had been an accident, . . . And we would like to speak with him because we thought he was probably under the influence of an intoxicant. And she, at that point, also gave her consent for us to go up, because she said, ‘Yes, he is in bed. He just got into bed. And something has to be done,’ referring to the fact that she recognized me from the earlier — I assumed she recognized me from the earlier ease, and was, I think, saying that she was concerned about his alcoholic problem. And she indicated, ‘Something has to be done/ and motioned us to the bedroom.” (Emphasis added).

Affirming the trial court’s dual finding of probable cause and exigent circumstances vitiates the need to remand this case to the circuit court on the issue of consensual entry, as was ordered by the court of appeals.

The issue in the present ca~e addresses the delicate interrelationship between the individual’s right to privacy and the governmental responsibility to enforce the law in a manner which serves the public interest. To prevail in this case, the state must prove the co-existence of probable cause⁵ and exigent circumstances, justifying the officer’s conduct at the defendant’s residence. We hold that there was ample evidence supporting the trial court’s ruling that the officer’s entry was justified on the basis of both probable cause and exigent circumstances. Entry to effect a warrantless arrest in a residence is subject to the limitations imposed by both the United States and the Wisconsin Constitutions. U.S. Const, amend. IV; Wis. Const. art. I, sec. 11. The individual’s right to privacy in the home is a fundamental freedom protecting the individual from unreasonable governmental interference; however, this fundamental right is not absolute. It is subject to limited but well-established exceptions where the public interest requires that proper authorities may impinge upon the individual’s right to privacy. In these instances of compelling public need, the government bears the burden of proving that the public interest supersedes the individual’s right to privacy. Consequently, to insure the validity of a war-rentless arrest, the state must prove probable cause, coupled with exigent circumstances. E.g.. Dunaway v. New York, 442 U.S. 200 (1979) ; Henry v. United States, 361 U.S. 98, 102 (1959) ; State v. Paszek, 50 Wis. 2d 619, 184 N.W.2d 836 (1971) ; see Payton v. New York, 445 U.S. 573, 575, 583-88 (1980) [citing Laasch v. State, 84 Wis. 2d 587, 267 N.W.2d 278 (1978)].⁶

This dual finding is subject to numerous and diverse interpretations. The common feature underlying all search and seizure interpretations, however, is the rear-sonableness of the government’s intrusion when considered within the context of the totality of the circumstances. See: State v. Cheers, 102 Wis. 2d 367, 388, 306 N.W.2d 676 (1981) ; Bies v. State, 76 Wis. 2d 457, 468, 251 N.W.2d 461 (1977). The United States Supreme Court has addressed the concepts suggestive of analysis in determining the reasonableness of the governmental interference with the individual’s Fourth Amendment rights. “Consideration of the constitutionality of such seizures involves a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.” Brown v. Texas, 443 U.S. 47, 50-51 (1979). Moreover “ ‘[whether an inquiry is considered reasonable must depend upon the facts in each case and must turn on the application of what is essentially an indeterminate and flexible test.’ ” Bies v. State, 76 Wis. 2d at 466 [quoting Browne v. State, 24 Wis. 2d 491, 507, 129 N.W.2d 175 (1964) ]. Although the State must prove the existence of both probable cause and exigent circumstances, negating any implication of adherence to a mere balancing test, the progeny of Fourth Amendment case law demonstrates that reasonableness occupies a prominent position in search and seizure analysis. Exigent circumstances and particularly probable cause, are not susceptible to stringently mechanical definitions. Frequently, case law has offered guidance through example rather than by definition. Consequently, the particularities and peculiarities of a given case are considered in the context of reasonableness. Accordingly, thorough analysis seeks to ascertain whether the case, in its entirety, while meeting the dual standards of probable cause and exigency, veritably accommodates this context of reasonableness.

I. PROBABLE CAUSE

The probable cause standard required to arrest dictates that quantum of evidence which would lead a reasonable police officer to believe that the defendant probably committed the offense. The evidence must show that there is more than a possibility or suspicion that the defendant committed the offense. The evidence need not reach the level of proof beyond a reasonable doubt or even that guilt is more likely than riot. State v. Paszek, 50 Wis. 2d at 624-25. In State v. Paszek, 50 Wis. 2d at 624-25, we described probable cause as follows:

“Probable cause to arrest refers to that quantum of evidence which would lead a reasonable police officer to believe that the defendant probably committed a crime. It is not necessary that the evidence giving rise to such probable cause be sufficient to prove guilt beyond a reasonable doubt, nor must it be sufficient to prove that guilt is more probable than not. It is only necessary that the information lead a reasonable officer to believe that guilt is more than a possibility, and it is well established that the belief may be predicated in part upon hearsay information. The quantum of information which constitutes probable cause to arrest must be measured by the facts of the particular case. Probable cause is defined in Draper v. United States, supra, p. 313, as:

“ ‘ “In dealing with probable cause, ... as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians act.” Probable cause exists where “the facts and circumstances within [the arresting officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that” an offense has been or is being committed. Carroll v. United States, 267 U.S. 132.” ’ ” State v. Paszek, 50 Wis. 2d at 624-25 (citations omitted).

To effectuate a warrantless, nonconsensual entry into the residence, in addition to exigent circumstances the officers had to have probable cause to believe that the defendant had committed the offense of driving while under the influence of an intoxicant at the time they entered the home.

Examination of the record demonstrates the existence of probable cause, satisfying the first requisite of the two-pronged test necessary to justify the officer’s war-rantless entry and arrest of the defendant. In this case, the officer had a substantial amount of reliable information, indicating to a reasonable police officer that the defendant had probably violated the statute prohibiting driving while under the influence of an intoxicant. See secs. 345.22; 346.63 (1), Stats. 1977.

Arriving at the scene of the accident the officer was met by Jablonic, the sole witness to the driver’s conduct. There is nothing in the record which challenges the reliability of either his observations or his statements to the officer. Adhering to the standard for reliability established in State v. Cheers, we held

“ ‘ “that a valid arrest without a warrant may be made solely by reason of information communicated by a reliable informant. ... A citizen who purports to be a victim of or to have witnessed a crime is a reliable informant even though his reliability has not theretofore been proved or tested. . . . The rationale underlying this principle is that such a person, as the observer of criminal activity, acts openly in aid of law enforcement when he reports the crime to the police.” ’ ” 102 Wis. 2d at 395-96. (emphasis added) (emphasis in original omitted) [quoting State v. Paszek, 50 Wis. 2d at 631].

Consequently, Jablonic’s information satisfies both prongs of the Cheers test for reliability.

In the Cheers case we discussed an additional “ ‘factor to be considered in determining whether probable cause exists,’ ” namely, that the defendant’s “conduct and retreat or ‘flight’ from the police officers’ show of authority immediately prior to the time of his arrest certainly constitutes evidence of consciousness of guilt.” State v. Cheers, 102 Wis. 2d at 391. The defendant’s statements, as well as his immediate retreat from the scene in fleeing to his home at the mention of police officers, clearly “constitutes evidence of consciousness of guilt” and is an additional factor buttressing our conclusion that the trial court properly found the existence of probable cause.

Jablonic told the officer at the scene of the accident that the officer had arrived “practically immediately upon [the driver’s] departure.” The officer’s license check identified the owner of the vehicle. As we have noted, ownership does not necessarily indicate the driver’s identity; however, the officer correctly recalled his involvement in the recent arrest of the owner in an alcohol-related dispute. Jablonic did not give a detailed description to the officer of the driver’s physical features, but he did state that the driver was a man wearing wet clothing. This information, coupled with Jablonic’s observations of the defendant’s erratic driving patterns and his personal conduct, further supports the trial court’s holding of probable cause.

Acting upon his collective knowledge of the situation, the officer proceeded immediately to the defendant’s residence and was told that the defendant “had just stumbled in.” While the officer, prior to his arrival at the house, had probable cause to believe that the defendant was the driver of the abandoned automobile, the defendant’s stepdaughter’s statement provided additional evidence in support of the proposition that the defendant was the driver because she said he had stumbled in only moments before the officer had arrived.

The word “stumbled” buttressed the witness’s belief that the defendant was intoxicated. The fact that the defendant had just returned home on this rainy night supports the officer’s belief that the defendant was the driver of his just abandoned car. The officer believed that he had probable cause, declaring that he “thought [the driver] was probably under the influence of an intoxicant.”

Although the defendant contends that the officer proceeded to the residence to determine whether he had sufficient evidence to establish probable cause to enter and arrest the defendant, we do not find this contention persuasive. The officer, acting upon Jablonic’s observations, coupled with his own accurate recollection of his involvement in the arrest of the defendant in a recent alcohol-related disturbance, had probable cause when he proceeded to the residence. The officer’s conversation with the defendant’s stepdaughter before entering the home provided further evidence establishing the existence of probable cause.

Scrutiny of the record, in its entirety, indicates that the officer had probable cause before he entered the defendant’s residence. Although the officer may not have been absolutely certain that the defendant was driving while under the influence of an intoxicant, absolute cer-. tainty is not the standard employed in determining the existence of probable cause.

The officer’s conversation with the defendant’s stepdaughter before entering the home provided further evidence establishing the existence of probable cause. The officer testified that,

“. . . it was my mental intent to go in the house and determine if he was in his bedroom, and what condition he was in, and whether or not he had anything to drink pri- or to leaving where the accident or the incident took place, until the time he got into bed. It was my intent to investigate it up to that point and make a determination.”

The defendant argues that this statement demonstrates that the officer did not believe he had probable cause and was going to the defendant’s bedroom solely to investigate. The officer’s statement, when considered along with his declaration that the defendant “was probably under the influence of an intoxicant,” demonstrates that the investigating statement is not being read by the defendant in the context of the entire record. The officer, correctly believing that he had probable cause, merely recognized that he was not absolutely positive that the defendant had been operating his automobile while under the influence of an intoxicant. The defendant could have been drinking after he returned to his home, thereby rendering the results of a blood alcohol test meaningless. Moreover, if the defendant had been ill, rather than intoxicated, the officer would have changed his original conclusion on which he had predicated the existence of probable cause. Consequently, the officer’s statement merely acknowledged that he was not absolutely certain that the defendant was driving while under the influence of an intoxicant, and prior to arresting the defendant, he was willing to reconsider his initial conclusion if necessary. A synthesis of these facts negates the possibility that the officer omy had a mere suspicion that the defendant was driving while under the influence of an intoxicant in violation of sec. 346.63 (1), Stats. 1977.

The foregoing evidence, when myopically parsed, may not individually support a finding of probable cause. When examined collectively, however, it unquestionably indicates “that quantum of evidence which would lead a reasonable police officer to believe that the defendant [driver] probably [violated the statute prohibiting driving while under the influence of an intoxicant] ,”7 State v. Cheers, 102 Wis. 2d at 386; see Henry v. United States, supra; secs. 345.22 and 346.63(1), Stats. 1977. The evidence in this case clearly demonstrates that the trial court was correct in ruling that the state had met its burden.

In considering the governmental interest, it is appropriate to note that driving under the influence is a pervasive problem of substantial proportion. In Wisconsin in 1981, there was a 5 percent increase in drunken driving convictions from 1980.⁸ Further, approximately 50 percent of all drivers killed in Wisconsin were driving while legally intoxicated.⁹ The increasing number of fatalities caused by drunken drivers has aroused state legislatures to adopt stricter penalties in the forms of substantial fines, imprisonment, and license suspensions to punish those who violate the laws prohibiting driving while under the influence of an intoxicant.¹⁰

II. EXIGENT CIRCUMSTANCES

In addition to the existence of probable cause, accompanying proof of exigent circumstances must be shown in order to justify this warrantless entry. Proof of exigency vitiates the need for a warrant under those circumstances when obtaining a warrant could frustrate the arrest. An analysis of the facts demonstrates that, in this case, exigent circumstances justified this officer’s war-rantless entry to effect the arrest of the defendant.

Frequently, proof that the officer is in hot pursuit of the suspect constitutes exigency. The hot pursuit doctrine evolved to encompass situations where time was of the essence. In other words, when requiring the police to obtain a warrant would constitute undue delay, the hot pursuit doctrine is applicable. In this case, time was of the essence. The inherent nature of the offense demanded the suspect’s immediate apprehension to accommodate the dictates of the blood alcohol test statute. Section 343.305(2) (a), Stats. 1977. In order for the officer to enforce the statutory requisites, the situation demanded his immediate search for and pursuit of the suspect.

The defendant, fearful of the officer’s impending arrival and perhaps recognizing the possibility of being requested to submit to a blood alcohol test, left the scene of the accident upon discovering that the officer had been summoned. Fleeing to his home, in an attempt to avoid a confrontation with the officer, the defendant’s hasty departure resulted in the abandonment of his car. If the officer had retreated and sought to obtain a warrant, rather than immediately pursuing and arresting the suspect, the requirements of the blood alcohol statutes would have been frustrated.

The imminent threat to safety doctrine also constitutes exigent circumstances. The sole purpose of the blood alcohol test is to facilitate prosecution of those driving while under the influence of an intoxicant. See sec. 343.-305(2) (a) and 346.63(1), Stats. 1977. Further, sec. 345.24, Stats. 1977, provides that a person arrested for driving while under the influence of an intoxicant “may not be released until four hours have elapsed.”¹¹ This severe treatment is dramatic evidence of the legislature’s intent and recognition of the need to protect the public from drunken drivers. Undoubtedly, this provision was enacted to prevent drunken drivers from returning to the road while intoxicated. Presumably, this four-hour statutory limitation sought to provide an adequate time allowance for the arrested intoxicant’s blood alcohol content to metabolize to a safer level, equal to or less than .05 percent. Restraining those drivers who pose a danger to themselves and the public for the four-hour statutory period constitutes a preventive measure, designed to promote public safety.

The officer concluded that he had probable cause to believe that the defendant had been operating a motor vehicle while under the influence of an intoxicant. Accordingly, the situation demanded the officer’s prompt attempt to locate the defendant. An arrest would prevent the driver from returning to his, or another automobile, where he could have continued to drive in his current state, posing a danger to himself and the public. Consequently, the nature of this offense, coupled with the potential threat to the public safety, satisfied the exigent circumstances test pursuant to the imminent threat to safety doctrine.

An equally persuasive argument is the probable destruction of evidence. This is a model case demonstrating the urgency involved in arresting the suspect in order to preserve evidence of the statutory violation. “Sometimes the nature of the evidence will be such that it will soon disappear of its own accord.” 2 W. LaFave, Search and Seizure, sec. 6.5 at 448 (1978). “Blood rapidly metabolizes alcohol after a person ceases drinking; thus creating an exigent situation.” State v. Bentley, 92 Wis. 2d 860, 864, 286 N.W.2d 153 (Ct. App. 1979). Without an immediate blood alcohol test, highly reliable and persuasive evidence facilitating the state’s proof of the defendant’s alleged violation of sec. 346.63(1), Stats. 1977, would be destroyed. See sec. 343.305(2) (a), Stats. 1977. Accordingly, the facts of this case adhere to the presumption favoring warrantless arrests which are a result “of an ongoing investigation in the field,” rather than an arrest that had been planned. W. LaFave, supra, sec. 6.1 at 391.¹²

In summary, we conclude that this situation did not afford the officer ample time in which to obtain a warrant. Further, the record demonstrates that the officer’s conduct was reasonable within the context of the surrounding circumstances. Accordingly, we affirm the circuit court’s holding, finding the existence of both probable cause and exigent circumstances in the present case.

By the Court. — The decision of the court of appeals is reversed.

Ceci, J., took no part.

1 Section 343.305(2) (a), Stats. 1977 provides that

“Revocation of license on refusal to submit to tests . . . (2) (a) If a law enforcement officer has probable cause to believe that a person has violated s. 346.63(1) or a local ordinance in conformity therewith, the officer may request the person, prior to arrest and issuance of a citation, to take a preliminary breath test for the purpose specified under sub. (1), using a device approved by the department for the purpose. A person may refuse to take a preliminary breath test without being subject to revocation under sub. (9) if he or she consents, after arrest, to take a test under par. (b). Neither the results of the preliminary breath test nor the fact that it was administered shall be admissible in any action or proceeding in which it is material to prove that the person was under the influence of an intoxicant or a controlled substance.” Id.

2 Section 346.63(1), Stats. 1977, provides that “[n]o person may drive or operate a motor vehicle while under the influence of an intoxicant or a controlled substance.”

3 The requirements contained in the Fourth Amendment of the Federal Constitution are binding against the states through the Fourteenth Amendment. Further, the provisions of the Fourth Amendment to the Federal Constitution are identical to those contained in Article I, sec. 11 of the Wisconsin Constitution. Both provide that:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” United States Constitution Amendment IV; see Wisconsin Constitution, Article I, sec. 11.

4 Section 752.31(1), (2), (3), Stats. 1977 provides:

“752.31 Disposition of cases. (1) Except as otherwise provided in this section, the court of appeals shall sit in panels of 3 judges to dispose of cases on their merits.

“(2) Appeals to the court of appeals in the following types of cases shall be heard as specified in sub. (3) :

“(a) Cases under ch. 299.

“ (b) Municipal ordinance violation cases.

“(c) Cases involving violations of traffic regulations, as defined in s. 345.20(1) (a).

“(d) Cases under ch. 51.

“(e) Cases under ch. 48.

“(f) Misdemeanors.

“(3) A case specified under sub. (2) shall be heard by one court of appeals judge, except that any party on appeal may move in writing to the chief judge of the court of appeals that the case be heard by a 3-judge panel. The chief judge may grant or deny the request ex parte. Any appeal which is heard by a single court of appeals judge shall be heard in the county where the case or action originated if any party so requests.”

5 The arrest in the present case is statutorily authorized in sec. 345.22, Stats. 1977. This statute only requires probable or reasonable cause to effectuate a warrantless arrest.

Section 345.22, Stats. 1977, provides:

“345.22 Authority to arrest without a warrant. A person may be arrested without a warrant for the violation of a traffic regulation if the traffic officer has reasonable grounds to believe that the person is violating or has violated a traffic regulation.”

The “reasonable grounds to believe” language in sec. 345.22 is synonomous with the constitutional standard of probable cause. Johnson v. State, 75 Wis. 2d 344, 348, 249 N.W.2d 593 (1977). Consequently, our reference to probable cause in the present case shall be interpreted as being used interchangeably with and meeting the statutory standard of “reasonable grounds to believe.” Section 345.22, Stats. 1977.

Section 345.22 only requires probable cause in its authorization of a warrantless arrest for violation of a traffic regulation. The instant case, however, meets the statutory probable cause standard in addition to meeting the case law requirements of probable cause coupled with exigent circumstances.

6 Both Payton and Laasch are Fourth Amendment cases, providing fundamental support for our position in the present case. Payton v. New York, 445 U.S. 573 (1980); Laasch v. State, 84 Wis. 2d 587, 267 N.W.2d 278 (1978). Although a cursory reading of Pay-ton suggests that it is unconstitutional for police officers, having probable cause, to enter a private residence without a warrant, it is clearly distinguishable from the case at bar because, unlike the present case, Payton expressly disavows a finding of exigent circumstances. Payton states that,

“[a]lthough it is arguable that the warrantless entry to effect Payton’s arrest might have been justified by exigent circumstances, none of the New York courts relied on any such justification. The [New York court] treated both Payton’s and Biddick’s cases as involving routine arrests in which there was ample time to obtain a warrant, and we will do the same. Accordingly, we have no occasion to consider the sort of emergency or dangerous situation, described in our cases as ‘exigent circumstances’ that would justify a warrantless entry into a home for the purpose of either arrest or search.” 445 U.S. at 583 (footnote omitted) (emphasis added).

Likewise, the defendant’s warrantless arrest in Laasch v. State occurred absent a showing of exigent circumstances. In Laasch, the issue before this Court was “whether, in the absence of any exigent circumstances, a police officer may enter a suspect’s home without consent in order to make a warrantless arrest.” 84 Wis. 2d at 593 (emphasis added). Admittedly of less significance than the absence of exigency, the arresting officers in Laasch were arguably afforded ample time to obtain a warrant, as there was a thirteen-day interval between the defendant’s offense and her arrest. Id. at 588-89.

Consequently, the time lapse and the absence of exigent circumstances in both Payton and Laasch limit their applicability to the present case. In this case, we hold that the existence of exigent circumstances contributes to our justification of Welsh’s arrest.

7 Consequently, Welsh meets the probable cause standard articulated in both the majority and dissenting opinions in State v. Cheers, 102 Wis. 2d 367, 386, 306 N.W.2d 676 (1981); Id. at 406, 408 (Abrahamson, J., dissenting).

8 Wisconsin Department of Transportation figures show that in 1981 there were 32,506 convictions for drunken driving. Drunken driving statistics covering years prior to 1981 have been published in annual reports entitled, Anderson, Wisconsin Accident Facts (prepared by the Traffic Accident Data Section of the Division of Motor Vehicles, Department of Transportation [hereinafter Wisconsin Accident Facts']).

In Wisconsin in 1980, there were 30,409 convictions for drunken driving. Wisconsin Accident Facts 16-17 (1980).

9 In 1980, 583 drivers were killed. Of these drivers, 470 were tested for blood alcohol content, and 269 were found to be legally intoxicated, having a minimum blood alcohol content of .10 percent. Wisconsin Accident Facts 1 (1981). Similarly in 1978, 576 drivers were killed; while 226 of the 448 tested were found to be legally intoxicated. Wisconsin Accident Facts 1 (1979).

10 Sec. 967.055, Stats., created by Chapter 20, Laws of 1981, provides:

“Sec. 967.055 Dismissing or amending charges; operating a motor vehicle, intoxicant or controlled substance. (1) Intent. The legislature intends to encourage the vigorous prosecution of offenses concerning the operation of motor vehicles by persons under the influence of an intoxicant, or a controlled substance or both.

“(2) Dismissing or Amending Charge. Notwithstanding s. 971.29, if the prosecutor seeks to dismiss or amend a charge under s. 346.63(1) or a local ordinance in conformity therewith, or s. 346.63 (2) or 940.25 or s. 940.09 where the offense involved the use of a vehicle or an improper refusal under s. 343.305, the prosecutor shall apply to the court. The application shall state the reasons for the proposed amendment or dismissal. The court may approve the application only if the court finds that the proposed amendment or dismissal is consistent with the public’s interest in deterring the operation of motor vehicles by persons who are under the influence of an intoxicant or both.”

See Hammer, The New OMVWI Law: Wisconsin Changes Its Approach to the Problem of Drinking and Driving, 55 Wis. B. Bull. 9 (April, 1982); e.g., sec. 346.63(1), Stats., repealed and recreated by Chapter 20, Laws of 1981; sec. 346.65(2), Stats., repealed and recreated by Chapter 20, Laws of 1981; see also Hammer, The New OMVWI Law: Wisconsin Changes Its Approach to the Problem of Drinking and Driving, 55 Wis. B. Bull. 15, 17 (May, 1982).

11 Section 345.24, Stats. 1977, provides in its entirety:

“345.24 Officer’s action after arrest for driving under influence of intoxicant. A person arrested under s. 346.63 or an ordinance in conformity therewith for operating a motor vehicle while under the influence of an intoxicant may not be released until 4 hours have elapsed from the time of his or her arrest or unless a chemical test administered under s. 343.305(2) (b) shows that there is .05% or less by weight of alcohol in the person’s blood, but the person may be released to his or her attorney, spouse, relative or other responsible adult at any time after arrest.”

12 Professor LaFave, a preeminent authority on the Fourth Amendment, distinguished a finding of exigency in cases involving planned arrests as opposed to those relating to an ongoing investigation in the field:

“A ‘planned’ arrest is one which is made after a criminal investigation has been fully completed at another location and the police make a deliberate decision to go to a certain place, either the arrestee’s home or some other premises where he is believed to be, in order to take him into custody. . . . Courts have understandably been reluctant to accept police claims of exigent circumstances in these situations, for it ordinarily appears that whatever exigencies thereafter arose were foreseeable at the time the arrest decision was made, when a warrant could have readily been obtained.” W. LaFave, supra,, sec. 6.1 at 391.

“On the other hand, when the occasion for arrest arises while the police are already out in the field investigating the prior or ongoing conduct which is the basis for the arrest, there should be a far greater reluctance to fault the police for not having an arrest warrant. Here, the presumption should be in favor of a war-rantless arrest rather than against it, as the probabilities are high that it is not feasible for the police to delay the arrest while one of their number leaves the area, finds a magistrate and obtains a warrant, and then returns with it.” Id. at 392 (emphasis added) (footnote omitted).