Background
At approximately 9:00 p.m. on July 16, 2019, a Madison police officer observed a vehicle pass his parked squad car closely and quickly enough to make the squad car shake. The officer followed the vehicle for several blocks and saw it drive partially into a bike lane, tailgate another vehicle, and turn without signaling. After the vehicle entered a residential driveway, the officer saw Viktors Vavilins exit the driver’s seat and another occupant leave the vehicle. The officer testified that Vavilins slurred his speech and smelled of alcohol. Vavilins declined three requests to perform field sobriety tests, and the officer arrested him on suspicion of operating while intoxicated (OWI).
At a hospital, the officer read Vavilins an English-language form containing the implied consent warnings prescribed by WIS. STAT. § 343.305(4) and requested consent to a warrantless blood draw. Vavilins refused. The officer then obtained a search warrant, and a blood draw was performed. Vavilins was charged with OWI and received a notice of intent to revoke his operating privileges for improperly refusing the test. He timely requested a refusal hearing.
Before trial or the refusal hearing, Vavilins moved to suppress the blood-draw evidence, arguing in part that the officer had not reasonably conveyed the implied consent warnings. At the suppression hearing, the officer testified that Vavilins spoke English with an “Eastern European” accent, but the officer did not ask what languages Vavilins spoke or whether he needed an interpreter. The circuit court found the warnings reasonably conveyed. A jury subsequently acquitted Vavilins of OWI. Immediately afterward, the circuit court held the refusal hearing, found probable cause for the arrest based on the officer’s trial testimony, incorporated its earlier warnings ruling, and ordered revocation. Judge Julie Genovese presided in the Dane County Circuit Court.
The Court’s Holding
The Wisconsin Court of Appeals affirmed the revocation judgment. Judge Blanchard decided the appeal alone under WIS. STAT. § 752.31(2)(c). The court first rejected Vavilins’s argument that the officer lacked probable cause because the State had not sufficiently established that he, rather than the other occupant, drove the vehicle. Reviewing factual findings for clear error and the legal probable-cause determination de novo, the court held that the credited evidence easily satisfied the standard: erratic driving, Vavilins’s exit from the driver’s side, slurred speech, an odor of alcohol, and three refusals to perform field sobriety tests without an asserted physical, weather-related, or other explanation.
Vavilins relied on alleged inconsistencies in the officer’s testimony about keys. The officer initially said he believed he saw Vavilins toss keys and heard keys strike the driveway, but later explained that he specifically remembered the sound rather than seeing the keys thrown. The court found no meaningful inconsistency. More importantly, the officer consistently testified that he maintained a clear line of sight and was “100% sure” Vavilins exited the driver’s side. The circuit court was entitled to credit that testimony, and the key-related testimony did not undermine probable cause.
The court also held that the officer reasonably conveyed the implied consent warnings by reading them verbatim in English without obtaining an interpreter. Under State v. Piddington, the State must prove reasonable conveyance by a preponderance of the evidence; the legal issue is reviewed de novo. The inquiry concerns the officer’s objective conduct under the circumstances, not the suspect’s subjective understanding. Communication barriers must be reasonably accommodated, but the court rejected Vavilins’s proposed rule that any foreign accent requires an officer to ask about English proficiency or translation. Here, Vavilins answered questions in comprehensible English, appeared to understand events, never requested language assistance, and gave no indication of difficulty understanding English. The circuit court reasonably attributed his terse responses to noncooperation rather than a language barrier. Unlike State v. Begicevic, where a heavy accent accompanied a request to communicate in German and other evident comprehension difficulties, Vavilins’s accent alone did not signal a need for supplemental communication tools. The court emphasized that the analysis is holistic and circumstance-specific, not a categorical accent-based rule.
Key Takeaways
- Direct, credited testimony that a suspect exited the driver’s seat, combined with erratic driving and signs of intoxication, can establish probable cause for an OWI arrest even without conclusive proof of driving.
- An OWI acquittal did not prevent the separate refusal proceeding from resulting in revocation; the appeal concerned the lawfulness of the arrest and conveyance of the implied consent warnings.
- Wisconsin’s reasonable-conveyance standard does not impose a bright-line duty to seek an interpreter whenever an officer detects a foreign accent.
- Officers must reasonably accommodate evident communication barriers, but courts assess all objectively observable circumstances rather than the suspect’s subjective comprehension alone.
Why It Matters
The decision clarifies the distinction between Piddington and Begicevic for attorneys litigating refusal hearings. A foreign accent may contribute to evidence of a language barrier, particularly when accompanied by confusion, poor grammar or word use, or requests for another language, but it does not automatically make English-only warnings unreasonable. The opinion also cautions against categorical readings of precedent: the court corrected Vavilins’s quotation of Piddington, which omitted the critical word “subjectively,” and explained that observable cues remain relevant to the officer’s objective reasonableness.
The opinion is expressly designated not for publication under WIS. STAT. RULE 809.23(1)(b)4. The court also disregarded the State’s citation to an unpublished 2004 decision that could not be cited as persuasive authority under RULE 809.23(3)(a)-(b).