Background
Richard Tourtillott was charged with 13 counts, including causing great bodily harm by operating a vehicle with a controlled substance in his blood, after running a stop sign at approximately 10 p.m. and crashing into another vehicle. Deputy Sinotte first observed Tourtillott driving his SUV at 89–94 mph—more than twice the 35–40 mph speed limit—with Sinotte’s emergency lights activated. The vehicle accelerated out of radar range. Moments later, Tourtillott crashed at an intersection, seriously injuring the other vehicle’s driver and his own passenger. Tourtillott fled the scene on foot but was found unconscious in a nearby ditch. Both deputies reported detecting an odor of intoxicants from Tourtillott.
At the hospital, Deputy Mason read Tourtillott the Informing the Accused form while medical personnel attended to him. Tourtillott then consented to a blood draw. Test results showed methamphetamine, amphetamine, and Delta-9 THC in his system. Tourtillott moved to suppress the blood test results, arguing that law enforcement lacked probable cause and that his consent was involuntary.
The Court’s Holding
The Wisconsin Court of Appeals held that Deputy Mason possessed probable cause to believe Tourtillott was driving under the influence when he read the Informing the Accused form, making Tourtillott’s subsequent consent voluntary. The court rejected Tourtillott’s argument that absent field sobriety tests or preliminary breath tests, probable cause could not exist. Applying State v. Lange precedent, the court found that probable cause is a flexible, common-sense standard assessed on the totality of circumstances—not a rigid checklist of typical indicators.
The court identified “wildly dangerous driving” as central to the probable cause finding: Tourtillott drove nearly 100 mph (more than double the speed limit), accelerated despite police pursuit with emergency lights active, ran a stop sign, and caused a crash with serious injuries. The odor of intoxicants, the time of evening on a weekend, the deputies’ law enforcement experience, Tourtillott’s flight from the scene, and his post-crash physical condition (which precluded field sobriety testing) further supported probable cause. The court also noted that after identification, the deputies learned Tourtillott had a history of violence toward law enforcement.
The court declined to address Tourtillott’s constitutional challenge to Wis. Stat. § 343.305(3)(ar)2, finding that the circuit court implicitly relied on § 343.305(3)(ar)1 (the “under the influence” provision), not the traffic violation provision. Because the case turned on facts supporting the OWI investigation, the constitutionality question did not properly present itself for review.
Key Takeaways
- Probable cause for blood draw consent does not require field sobriety tests, preliminary breath tests, or all typical indicators of intoxication when dangerously reckless driving and crash circumstances support inference of impairment.
- Post-crash physical injury preventing field sobriety testing does not weaken probable cause; the defendant’s condition when found (unconscious in ditch after high-speed crash) may itself support inference of intoxication.
- Flight from the scene, alone, may reflect consciousness of guilt and be considered alongside other factors in probable cause analysis.
- A constitutional challenge to a statute does not become ripe if the factual record supports an alternative, non-constitutional ground for the government’s action.
Why It Matters
This decision clarifies Wisconsin law on probable cause for blood draws in crash scenarios where intoxication is suspected but traditional sobriety evidence is scarce. By endorsing a flexible, totality-of-circumstances approach over a checklist method, the court broadens the circumstances under which law enforcement may request blood samples and obtain valid consent. The decision will likely reduce successful suppression motions in serious-injury crash cases where defendant behavior and crash facts alone support probable cause—even if field evidence was not obtained.
The decision also demonstrates how appellate courts may avoid novel constitutional questions by finding that law enforcement acted within a constitutional provision that does not require probable cause, provided a narrower statutory provision that does require it could have authorized the same conduct. This principle allows courts to uphold law enforcement actions without reaching difficult constitutional questions about the scope of blood draw authority.