State v. Jacob Karl Schindler

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.
January 25, 2024
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2023AP755 Cir. Ct. No. 2023TR124

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

IN THE MATTER OF THE REFUSAL OF
JACOB KARL SCHINDLER:

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JACOB KARL SCHINDLER,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Jefferson County:
BENNETT J. BRANTMEIER, Judge. Affirmed.
No. 2023AP755

¶1 TAYLOR, J.1 Jacob Karl Schindler appeals an order of the
Jefferson County Circuit Court revoking his operating privileges based on his
refusal to submit to chemical testing of his blood pursuant to Wisconsin’s implied
consent law. On appeal, Schindler argues that his operating privileges should not
have been revoked because the arresting deputy lacked probable cause to arrest
him for operating a motor vehicle while under the influence of alcohol. I conclude
that the deputy had probable cause to believe that Schindler had operated a motor
vehicle while under the influence of alcohol. Accordingly, I affirm the decision of
the circuit court revoking Schindler’s operating privileges.

BACKGROUND

¶2 Around 11:30 p.m. on January 7, 2023, Deputy Ehrin Eisenberg of
the Jefferson County Sheriff’s Department was dispatched to investigate a report
of a vehicle that had run off the road. When Eisenberg arrived, he observed a
vehicle 50 to 75 feet down a ravine on the side of the road. Based on the location
of the vehicle, Eisenberg believed that the vehicle ran through a stop sign at a
three-way “T-intersection” before driving off the road and down the ravine.

¶3 When Eisenberg exited his squad car, he heard “engines revving”
from the vehicle, as though the driver was spinning the vehicle’s wheels in the
mud. With another deputy, Eisenberg walked to the vehicle and made contact
with the driver, who he later learned was Schindler. Eisenberg smelled alcohol
coming from the vehicle and observed that Schindler’s eyes were bloodshot and

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(c) (2021-22).
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.

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No. 2023AP755

glassy and that his speech was slurred. A dog was the only other occupant in the
vehicle.

¶4 Eisenberg repeatedly asked Schindler to turn off the vehicle, and
Schindler eventually complied. Eisenberg then asked Schindler to step out of the
vehicle, but Schindler refused to do so. Eisenberg also asked Schindler whether
he had consumed any alcohol, but Schindler stated that he refused to answer any
questions. Eisenberg opened the door to the vehicle and again asked Schindler to
step out. Schindler again refused. Schindler then began reaching for a pen, but
Eisenberg grabbed Schindler’s hand and pulled him from the vehicle before he
could do so.

¶5 With the other deputy, Eisenberg assisted Schindler to his feet and
held him against Schindler’s vehicle. Eisenberg asked Schindler to place his
hands behind his back, but Schindler refused to do so. Eisenberg managed to
handcuff one of Schindler’s hands, but Schindler was grabbing the top rail of the
vehicle with his other hand and would not allow Eisenberg to handcuff that hand.
Eisenberg delivered several knee strikes to the back of Schindler’s leg and was
then able to handcuff both of Schindler’s hands behind his back. During this
struggle, Eisenberg called for additional backup support.

¶6 Once handcuffed, Eisenberg held Schindler against Schindler’s car
until the backup officer arrived a few minutes later, and then walked Schindler to
Eisenberg’s squad car and placed him in the vehicle while he was still handcuffed.
Eisenberg did not tell Schindler that he was under arrest. According to Eisenberg,
Schindler was being detained at that point as part of the officers’ ongoing
investigation and due to his uncooperative behavior.

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No. 2023AP755

¶7 While Schindler was sitting in the squad car, one of the other
officers at the scene asked Schindler to perform standardized field sobriety tests,
and Schindler refused. Schindler was not asked to conduct a preliminary breath
test. After Schindler refused the field sobriety tests, Eisenberg informed Schindler
that he was under arrest for operating a vehicle while intoxicated. At some point,
Eisenberg learned that Schindler had three prior convictions for operating a
vehicle while intoxicated (OWI) or having a prohibited alcohol concentration
(PAC). As a result, Schindler was legally prohibited from operating a vehicle with
a PAC greater than 0.02. However, it is not clear from the record whether
Eisenberg learned of Schindler’s prior convictions before he told Schindler that he
was being arrested.

¶8 Eisenberg then read Schindler the “Informing the Accused” form
and requested that Schindler submit to an evidentiary chemical test of his blood.
Schindler refused. At that point, Eisenberg obtained a search warrant for a blood
draw and transported Schindler to a hospital for the draw. The results of the blood
test showed that Schindler had a blood alcohol concentration of 0.234.

¶9 Schindler was charged with refusing to submit to a chemical test
contrary to WIS. STAT. § 343.305(9).2 At the refusal hearing, Eisenberg testified
about the events of Schindler’s arrest as set forth above. The circuit court
determined that Eisenberg had probable cause to believe that Schindler was
operating a motor vehicle while under the influence of alcohol because Schindler

2
Schindler was also charged with several other offenses, including operating a motor
vehicle while under the influence of an intoxicant contrary to WIS. STAT. § 346.63(1)(a) and
operating a motor vehicle with a prohibited alcohol concentration contrary to § 346.63(1)(b), both
as fourth offenses. This appeal only concerns the refusal charge.

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No. 2023AP755

smelled of alcohol, had slurred speech, had bloodshot and glassy eyes, and there
was a one-car accident. The court also found that Eisenberg properly read the
Informing the Accused form to Schindler and that Schindler refused to submit to
testing. As a result, the court entered an order revoking Schindler’s operating
privileges. Schindler appeals.3

DISCUSSION

I. Wisconsin’s Implied Consent Statute.

¶10 WISCONSIN STAT. § 343.305 provides that any person who drives or
operates a motor vehicle on a public roadway in Wisconsin is deemed to have
given their “implied consent” to chemical testing of a sample of their blood,
breath, or urine if they are arrested for an OWI-related offense.4 Sec. 343.305(2),
(3)(a). A law enforcement officer who arrests a driver for an OWI-related offense

3
The notice of appeal says that Schindler is appealing a “judgment of conviction.”
However, there is no “judgment of conviction” in the record, only a “conviction status report.”
We will therefore refer to the court’s revocation as an “order.”
4
The language in WIS. STAT. § 343.305 has been found to be unconstitutional to the
extent it allows a statutory exception for a warrantless blood draw and for criminal penalties to be
imposed on individuals who exercise their constitutional right to refuse a warrantless blood draw.
See State v. Forrett, 2022 WI 37, ¶14, 401 Wis. 2d 678, 974 N.W.2d 422 (“We therefore hold
that the OWI statutes are facially unconstitutional to the extent they count a prior, stand-alone
revocation resulting from a refusal to submit to a warrantless blood draw as an offense for the
purpose of increasing the criminal penalty.”); State v. Prado, 2021 WI 64, ¶54, 397 Wis. 2d 719,
960 N.W.2d 869 (“[W]e conclude that the incapacitated driver provision is unconstitutional
beyond a reasonable doubt. The provision’s ‘deemed’ consent authorizes warrantless searches
that do not fulfill any recognized exception to the warrant requirement and thus the provision
violates the Fourth Amendment’s proscription of unreasonable searches.”); and Birchfield v.
North Dakota, 579 U.S. 438, 477 (2016) (“[W]e conclude that motorists cannot be deemed to
have [impliedly] consented to submit to a blood test on pain of committing a criminal offense.”).
None of these situations are present here.

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No. 2023AP755

and seeks chemical testing pursuant to the implied consent law is required to read
the Informing the Accused script to the driver. Sec. 343.305(4).5

¶11 If the person refuses to submit to chemical testing, the person is
informed that the State intends to immediately revoke their operating privileges
and that they may request a refusal hearing in court. WIS. STAT. § 343.305(9)(a).
The issues that a defendant may raise during a refusal hearing are limited by
statute to those set forth in § 343.305(9)(a)5. One of the issues that may be raised
is “[w]hether the officer had probable cause to believe the person was driving or
operating a motor vehicle while under the influence of alcohol … and whether the

5
The exact statutory script that must be read is:

You have either been arrested for an offense that involves driving or
operating a motor vehicle while under the influence of alcohol or drugs, or both,
or you are the operator of a vehicle that was involved in an accident that caused
the death of, great bodily harm to, or substantial bodily harm to a person, or you
are suspected of driving or being on duty time with respect to a commercial
motor vehicle after consuming an intoxicating beverage.

This law enforcement agency now wants to test one or more samples of
your breath, blood or urine to determine the concentration of alcohol or drugs in
your system. If any test shows more alcohol in your system than the law permits
while driving, your operating privilege will be suspended. If you refuse to take
any test that this agency requests, your operating privilege will be revoked and
you will be subject to other penalties. The test results or the fact that you refused
testing can be used against you in court.

If you take all the requested tests, you may choose to take further tests.
You may take the alternative test that this law enforcement agency provides free
of charge. You also may have a test conducted by a qualified person of your
choice at your expense. You, however, will have to make your own
arrangements for that test.

If you have a commercial driver license or were operating a commercial
motor vehicle, other consequences may result from positive test results or from
refusing testing, such as being placed out of service or disqualified.

WIS. STAT. § 343.305(4).

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No. 2023AP755

person was lawfully placed under arrest for violation of [an OWI-related statute].”
Sec. 343.305(9)(a)5.a.

¶12 A circuit court’s “[f]indings of fact shall not be set aside unless
clearly erroneous.” WIS. STAT. § 805.17(2). Here, the parties do not dispute the
“pertinent” facts that were set forth at the refusal hearing through Eisenberg’s
testimony. For this reason, I only address the legal question of whether there was
probable cause to arrest Schindler, which I review independently. See State v.
Woods, 117 Wis. 2d 701, 710, 345 N.W.2d 457 (1984) (“If the historical facts are
undisputed, probable cause for an arrest is a question of law that is subject to
independent review on appeal, without deference to the trial court’s conclusion.”).

II. Eisenberg Had Probable Cause to Believe Schindler Was Operating
a Vehicle Under the Influence of Alcohol.

¶13 On appeal, Schindler argues that the circuit court erred in revoking
his driving privileges for refusing to permit chemical testing of his blood because
Eisenberg did not have probable cause at the time of arrest to believe that
Schindler had been operating a motor vehicle under the influence of alcohol.
Schindler contends that his arrest occurred when he was placed in Eisenberg’s
squad car while handcuffed and, as a result, that his refusal to perform field
sobriety testing may not be considered in determining whether there was probable
cause to believe that he had been driving under the influence of alcohol. The State
responds that Schindler was not arrested until after he refused to perform field
sobriety testing. According to the State, Schindler had been handcuffed and
placed in Eisenberg’s squad car due to Schindler’s failure to cooperate in the
deputy’s investigation.

¶14 I begin by addressing the timing of Schindler’s arrest.

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No. 2023AP755

A. Timing of the Arrest.

¶15 In Wisconsin, “the test for whether a person has been arrested is
whether a ‘reasonable person in the defendant’s position would have considered
himself or herself to be ‘in custody,’ given the degree of restraint under the
circumstances.’” State v. Blatterman, 2015 WI 46, ¶30, 362 Wis. 2d 138, 864
N.W.2d 26 (citation omitted). “The circumstances of the situation including what
has been communicated by the police officers, either by their words or actions,
shall be controlling under the objective test.” Id. (citation omitted).

¶16 “[A] police officer may, under certain circumstances, temporarily
detain a person for purposes of investigating possible criminal behavior even
though there is not probable cause to make an arrest.” Id., ¶18 (citing Terry v.
Ohio, 392 U.S. 1, 22 (1968)); WIS. STAT. § 968.24. A temporary investigative
detention “requires a reasonable suspicion, grounded in ‘specific and articulable
facts,’ and reasonable inferences from those facts, that an individual was engaging
in illegal activity.” State v. Pickens, 2010 WI App 5, ¶14, 323 Wis. 2d 226, 779
N.W.2d 1 (2009) (citing Terry, 392 U.S. at 21). Additionally, the “investigative
means” used in this temporary detention must be “the least intrusive means
reasonably available to verify or dispel the officer’s suspicion” and may last “no
longer than is necessary to effectuate the purpose of the stop.” Id., ¶27 (citation
omitted).

¶17 When temporarily detaining a person, an officer may use handcuffs
and place the person in a squad car without rendering the temporary detention
unreasonable or transforming the detention into an arrest. Blatterman, 362 Wis.
2d 138, ¶¶31-32. However, “such measures generally are reasonable only when

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No. 2023AP755

particular facts justify the measure for officer safety or similar concerns.”
Pickens, 323 Wis. 2d 226, ¶32.

¶18 Here, Schindler argues that he was placed under arrest when he was
handcuffed and put in Eisenberg’s squad car because a reasonable person would
believe they were in custody at that point. I disagree. As the State points out,
Eisenberg testified that Schindler was not cooperating with the investigation and
had to be asked multiple times to turn off the engine and step out of his vehicle.
When officers opened the door to his vehicle and again asked him to step out,
Schindler unexpectedly reached out to grab a pen. Eisenberg then pulled
Schindler out of the vehicle and repeatedly asked him to put his hands behind his
back, but he refused and would not allow Eisenberg to put his hands in handcuffs.
According to Eisenberg, physical force was needed to secure both of Schindler’s
hands in handcuffs, and Schindler’s lack of cooperation was hindering his
investigation. Hence, Eisenberg testified that Schindler was placed in handcuffs
and put in his squad car because of Schindler’s lack of cooperation, not because he
was under arrest. Eisenberg testified that if Schindler had agreed to perform the
field sobriety tests, then the officers would have removed the handcuffs.

¶19 This testimony from Eisenberg demonstrates that the use of
handcuffs and placing Schindler in the squad car were reasonable measures to
prevent Schindler from interfering with the officers’ investigation. This testimony
also demonstrates that the officers were reasonably concerned for their safety due
to Schindler’s resistive and unpredictable behavior. Schindler does not challenge
the lawfulness of this temporary investigative detention, including whether the
detention was justified by reasonable suspicion or whether the investigative means
employed by the officers were reasonable. Therefore, I conclude that Schindler
was not arrested when he was put in handcuffs and placed in Eisenberg’s squad

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No. 2023AP755

car. Instead, Schindler was arrested when Eisenberg told him that he was under
arrest after Schindler refused to perform field sobriety tests.

B. Probable Cause.

¶20 At a refusal hearing, “[p]robable cause, although not easily reducible
to a stringent, mechanical definition, generally refers to ‘that quantum of evidence
which would lead a reasonable police officer to believe that the defendant
probably committed a crime.’” State v. Nordness, 128 Wis. 2d 15, 35, 381
N.W.2d 300 (1986) (citations omitted). In the context of a refusal hearing,
“[p]robable cause exists where the totality of the circumstances within the
arresting officer’s knowledge at the time of the arrest would lead a reasonable
police officer to believe … that the defendant was operating a motor vehicle while
under the influence of an intoxicant.” Id. This court is not bound by an officer’s
subjective assessment or motivation. State v. Kasian, 207 Wis. 2d 611, 621, 558
N.W.2d 687 (Ct. App. 1996).

¶21 In assessing whether an officer had probable cause, the State’s
burden of persuasion is “substantially less than at a suppression hearing.” State v.
Pfaff, 2004 WI App 31, ¶16, 269 Wis. 2d 786, 676 N.W.2d 562. “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.” State v. Wille, 185 Wis. 2d 673, 681, 518 N.W.2d 325 (Ct. App.
1994). “Indeed, the court need not even believe the officer’s account. It need only
be persuaded that the State’s account is plausible.” Id.

¶22 Here, the information available to Eisenberg at the time of arrest
would lead a reasonable police officer to believe that Schindler had been driving
under the influence of alcohol. Eisenberg was dispatched around 11:30 p.m. to

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No. 2023AP755

investigate a report of a vehicle that had run off the road and, when he arrived at
the scene, he observed that the vehicle appeared to have run through a stop sign at
a “T-intersection” and traveled 50 to 75 feet off the road. The nature of the
accident and the late hour support a determination of probable cause. See Kasian,
207 Wis. 2d at 622 (appearance of a one-vehicle accident supported probable
cause); State v. Lange, 2009 WI 49, ¶32, 317 Wis. 2d 383, 766 N.W.2d 551 (time
of night supports probable cause). Eisenberg testified that there was an odor of
intoxicants coming from the vehicle, Schindler had glassy and bloodshot eyes, and
Schindler had slurred speech. See State v. Kennedy, 2014 WI 132, ¶22, 359 Wis.
2d 454, 856 N.W.2d 834 (“[F]actors sufficient to support a finding of probable
cause have included bloodshot eyes, an odor of intoxicants, and slurred speech.”).
Finally, Schindler refused to follow the officers’ orders and refused to perform
field sobriety tests. See Blatterman, 362 Wis. 2d 138, ¶37-38 (refusal to follow
orders supports probable cause); State v. Babbitt, 188 Wis. 2d 349, 359-60, 525
N.W.2d 102 (Ct. App. 1994) (refusal to submit to field sobriety tests supports
probable cause). When examining the totality of the circumstances in Eisenberg’s
knowledge at the time of arrest, I conclude that a reasonable police officer would
believe that Schindler had operated under the influence of alcohol or with a PAC.6

¶23 Schindler argues that the information available to Eisenberg at the
time of arrest did not reasonably demonstrate that Schindler had operated a vehicle

6
Prior OWI convictions may also support probable cause, especially where the
applicable PAC threshold is reduced to 0.02. See State v. Blatterman, 2015 WI 46, ¶36, 362
Wis. 2d 138, 864 N.W.2d 26; WIS. STAT. § 340.01(46m)(c) (reducing prohibited alcohol
concentration standard to 0.02 if the person has three or more prior convictions, suspensions or
revocations). Here, Eisenberg testified Schindler had three prior OWI convictions and was
subject to a 0.02 PAC threshold. However, it is unclear from the record whether Eisenberg knew
that information before he arrested Schindler. As a result, I do not consider that information in
my analysis.

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No. 2023AP755

while impaired. First, Schindler points out that Eisenberg did not observe any
erratic driving and did not observe any indications of damage to the vehicle.
Schindler also points to Eisenberg’s acknowledgment that he never observed any
indications that Schindler’s balance or coordination were impaired. However, an
officer does not need to personally observe erratic driving or impaired motor
functions to reasonably believe that a driver operated a vehicle while impaired.
See Kasian, 207 Wis. 2d at 622 (holding that an officer had probable cause to
arrest where the officer “came upon the scene of a one-vehicle accident,” observed
an injured man lying next to the vehicle, and observed a strong odor of intoxicants
and slurred speech).

¶24 Next, Schindler points to Eisenberg’s acknowledgement that
Schindler’s slurred speech and the odor of alcohol coming from his vehicle were
not definitive proof of impaired driving. However, as explained, slurred speech
and the odor of alcohol are valid factors for consideration in the totality of
circumstances an officer may consider in assessing probable cause. See Kennedy,
359 Wis. 2d 454, ¶22. Additionally, officers are not obligated to rule out innocent
explanations when they observe indicia of an intoxicated driver. State v. Tullberg,
2014 WI 134, ¶35, 359 Wis. 2d 421, 857 N.W.2d 120 (holding that officers may
consider indicia of intoxication as a basis for probable cause, even though such
indicia may have an innocent explanation).

¶25 Finally, Schindler argues that he never admitted to consuming
alcohol or otherwise confessed his guilt. However, as this court has recognized, a
defendant’s refusal to submit to field sobriety tests is “some evidence of
consciousness of guilt” and may be considered as a basis for probable cause.
Babbitt, 188 Wis. 2d at 360. Here, Eisenberg testified that Schindler did not
cooperate with the officers’ orders and refused to perform field sobriety tests.

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No. 2023AP755

Eisenberg was permitted to consider this refusal as evidence of Schindler’s
consciousness of guilt.

¶26 In sum, the information available to Eisenberg at the time of
Schindler’s arrest would lead a reasonable officer to believe that Schindler had
operated a vehicle while under the influence of alcohol. Therefore, I conclude that
the circuit court properly revoked Schindler’s driving privileges for refusing to
submit to chemical testing.

CONCLUSION

¶27 For the foregoing reasons, the order of the circuit court is affirmed.

By the Court.—Order affirmed.

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

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