Wisconsin Legislature: vol72-85

72 Op. Att'y Gen. 85, 85 (1983)

Arrest; Counties; Drunk Driving;

Counties can enter into reciprocal mutual assistance agreements whereby they can agree in advance to cooperate in the arrest of persons suspected of violating drunk driving laws who are involved in an accident in one county and transported to a hospital in another county. OAG 24-83

July 22, 1983

72 Op. Att'y Gen. 85, 85 (1983)

GARY J. SCHUSTER,

District Attorney

Door County

72 Op. Att'y Gen. 85, 85-86 (1983)

You have requested my opinion as to whether counties can enter into reciprocal mutual assistance agreements whereby such counties would agree in advance to cooperate in the arrest of persons and in the subsequent procurement of evidence from arrested persons suspected of violating drunk driving laws who are involved in an accident in one county and transported to a hospital in another county for emergency treatment. Your inquiry is prompted by the dilemma created by an accident occurring in Door County with an injured person (a potential offender of the drunk driving laws) being transported to a hospital in Brown County for necessary emergency treatment and the resultant question of which county's law enforcement personnel are the proper arresting authority. It should be recognized that the cooperation contemplated by your inquiry suggests two alternative procedures: (1) a Door County law enforcement officer (sheriff or county traffic officer) arresting the injured in Brown County; and (2) a Brown County law enforcement officer (sheriff or county traffic officer) arresting the injured in Brown County for the purpose of a prosecution in Door County. For the reasons that follow, I am of the opinion that counties can enter into reciprocal mutual assistance agreements pursuant to section 66.30(2), Stats., to resolve any dilemmas which may result from the situation posited in your inquiry.

72 Op. Att'y Gen. 85, 86 (1983)

Certain explanations and assumptions regarding my conclusion should be initially stated:

72 Op. Att'y Gen. 85, 86-87 (1983)

First, by concluding that mutual assistance agreements may be utilized for the purpose contemplated by your inquiry, I do not intend my conclusion to circumscribe the alternatives available to law enforcement agencies. To the contrary, it may well be that the same result may also be accomplished in the absence of such an agreement. Using your example, a Brown County law enforcement officer certainly can effectuate a warrantless arrest of an injured driver in Brown County if the arresting Brown County officer believes on reasonable grounds that the injured driver has committed a traffic crime,

i.e.

, second or subsequent OWI offense. Sec. 968.07(1)(d), Stats. Similarly, section 345.22 authorizes the Brown County law enforcement officer to effectuate a warrantless arrest when there are reasonable grounds to believe that the injured driver has violated a traffic regulation,

i.e.

, first OWI offense.

See

also

61 Op. Att'y Gen. 275 (1972). And, still using your example, while the express wording of section 66.305 would appear to suggest that a Door County law enforcement officer could only arrest the injured driver in Brown County upon the specific request of a Brown County officer (Door County officer relating to Brown County officer that he wishes the latter to request his assistance), section 66.305 arguably does also confer authority on Door County officers to effectuate a warrantless arrest of the injured driver in Brown County in the absence of such a specific request. In order to be practical and effective, however, the latter approach could well raise an additional question -- the propriety of a "continuing call" for assistance.

See

62 Op. Att'y Gen. 250, 251 (1973). Therefore, while sections 968.07(1)(d), 345.22 and 66.305 suggest that the contemplated agreements may not always be required, I believe the contemplated agreements do not compromise those instances already covered and, in addition, provide authority for those arguably not covered as well.

72 Op. Att'y Gen. 85, 87 (1983)

Second, my conclusion assumes that the requirement of probable cause has been satisfied in all cases. The relevant provisions of the implied consent law, section 343.305(2)(b) and (c), contemplate that a lawful arrest be made prior to a request for submission to one of the enumerated intoxication tests.

State v. Neitzel

, 95 Wis. 2d 191, 200, 289 N.W. 828 (1980) (

but

see

Neitzel

, 95 Wis. 2d at 205);

Scales v. State

, 64 Wis. 2d 485, 494, 219 N.W.2d 286 (1974); 67 Op. Att'y Gen. 314 (1978); 59 Op. Att'y Gen. 183 (1970). Therefore, the probable cause for making the arrest must precede any intoxication test.

Scales

64 Wis. 2d at 494. In this regard, all of the alternative situations considered herein are no different than that which would occur if the accident had occurred and the hospital was located within the same county.

72 Op. Att'y Gen. 85, 87 (1983)

Third, my conclusion assumes that the necessary probable cause for arrest may be transmitted from one law enforcement officer with personal knowledge of the probable cause to another law enforcement officer making the arrest and requesting the intoxication test.

See

Schaffer v. State

, 75 Wis. 2d 673, 677, 250 N.W.2d 326 (1977);

State v. Shears

, 68 Wis. 2d 217, 253, 229 N.W.2d 103 (1975);

State v. Mabra

, 61 Wis. 2d 613, 625, 213 N.W.2d 545 (1974);

State v. Taylor

, 60 Wis. 2d 506, 515-16, 210 N.W.2d 873 (1973).

72 Op. Att'y Gen. 85, 87 (1983)

Fourth, my conclusion only contemplates agreements between counties regarding the law enforcement personnel of their respective sheriff's department or the county traffic patrol.