COURT OF APPEALS

COURT OF APPEALS

DECISION

DATED AND FILED

July 19, 2012

Diane M. Fremgen

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing.� If published, the official version will appear in the bound volume of the Official Reports.�

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.� See Wis. Stat. � 808.10 and Rule 809.62.�

Appeal No.�	2011AP2106	Cir. Ct. Nos.� 2010TR28542 2010TR28543
STATE OF WISCONSIN�			IN COURT OF APPEALS
			DISTRICT IV


Dane County, �� Plaintiff-Respondent, �� v. Amy Jolene Judd, �� Defendant-Appellant.

�� APPEAL from a judgment of the circuit court for Dane County:� william e. hanrahan, Judge.� Affirmed.�

�1�� Sherman, J.[1] Amy Judd appeals a judgment of conviction for operating a motor vehicle under the influence of an intoxicant, first offense.� Judd contends that the arresting officer lacked reasonable suspicion to believe that Judd had been driving while intoxicated, and that the court should have suppressed evidence obtained from her detention.� I affirm.�

BACKGROUND

�2�� At approximately 2:45 a.m. on December 12, 2010, Dane County Deputy Sheriff Richard Larson was dispatched to a rural house regarding a disturbance.� When Deputy Larson was walking back to his vehicle after speaking with an individual in the house, he met Judd who was walking up toward the house.� Deputy Larson testified that he observed that Judd�s eyes were bloodshot and glassy, and that he observed a �moderate to fairly strong� odor of intoxicants coming from her.� Deputy Larson testified that Judd informed him that she had driven to the house in order to pick up a friend, and that she had consumed her last drink approximately one hour before.� Deputy Larson also testified that he observed a van parked in the house�s driveway, which had not been there when he arrived at the residence.� Deputy Larson testified that based upon these observations, he detained Judd and asked her to undergo field sobriety tests.�

�3�� Judd was later arrested and charged with OWI, first offense.� Judd moved to suppress evidence obtained as a result of her detention on the basis that Larson lacked reasonable suspicion to believe that she had been operating a motor vehicle under the influence of an intoxicant.� The court denied Judd�s motion and Judd subsequently entered a plea of no contest to the charge.� Judd appeals.�

DISCUSSION

�4�� On review of a circuit court�s decision on a motion to suppress, an appellate court will uphold the circuit court�s factual findings unless those findings are clearly erroneous.� State v. Popke, 2009 WI 37, �10, 317 Wis. 2d 118, 765 N.W.2d 569.� We review de novo whether the facts lead to reasonable suspicion.� Id.

�5�� To support reasonable suspicion, an officer must have an objectively reasonable suspicion of wrongful conduct.� See State v. Anderson, 155 Wis. 2d 77, 84, 454 N.W.2d 763 (1990).� Reasonable suspicion sufficient to make an investigatory stop is based on a common sense test:� what would a reasonable police officer reasonably suspect in light of his or her training and experience under all of the facts and circumstances present.� State v. Jackson, 147 Wis. 2d 824, 834, 434 N.W.2d 386 (1989).�� The officer�s suspicion must be �grounded in specific articulable facts and reasonable inferences from those facts� that the driver consumed enough alcohol to impair his or her ability to drive.� State v. Colstad, 2003 WI App 25, ��8, 19, 260 Wis. 2d 406, 659 N.W.2d 394.

�6�� Judd contends that Larson�s observations were not sufficient to give rise to reasonable suspicion for an investigatory stop.� Judd seems to argue that Larson could not reasonably believe that she had been operating a motor vehicle under the influence of an intoxicant because �[s]he acted, spoke and thought clearly, [spoke] coherently and articulately and she carried herself without stumbling or swaying or any physiological impairment.�� Judd also argues that an unpublished opinion, State v. Meye, 2010AP336-CR, unpublished slip op. (WI App July 14, 2010), supports a conclusion that Larson�s observations in this case did not give rise to reasonable suspicion.�� In Meye, this court held that the odor of intoxicants alone �on a person who has alighted from a vehicle after it has stopped� did not give rise to reasonable suspicion to make an investigatory stop.� Id., ��5-6.� Judd argues that the only difference between Meye and the present case is that Larson testified that in addition to the smell of intoxicants, he also observed that Judd�s eyes were bloodshot and glassy, an observation which Judd asserts is not indicative of impairment.

�7�� I disagree that Meye is analogous to the present case.� In Meye, the officer smelled the odor of intoxicants, but was unable to identify whether that odor was emanating from Meye or her companion.� Id., �2.� Here, there was no ambiguity as to whom the odor was coming from.� In addition, unlike Meye, Judd admitted that she had driven her car to the residence; Judd admitted to having consumed alcohol earlier; Larson observed that Judd�s eyes were bloodshot and glassy; and it was 2:45 a.m.� The odor of alcohol, admission of drinking earlier, bloodshot glassy eyes, and time of day, in conjunction with Larson�s awareness that Judd had driven her car, were sufficient to provide Larson with reasonable suspicion to believe that Judd had driven her vehicle while under the influence of an intoxicant.� See, e.g., State v. Lange, 2009 WI 49, �32, 317 Wis. 2d 383, 766 N.W.2d 551 (time of night is a relevant consideration for suspicion of impaired driving); State v. Hughes, No. 2011AP647, unpublished slip op. �21 (WI App Aug. 25, 2011) (odor of alcohol, admission of drinking, and glassy eyes sufficient to give rise to reasonable suspicion that defendant was driving while intoxicated); In re Wendt, No. 2010AP2416, unpublished slip op. �19 (WI App June 23, 2011) (bloodshot and glassy eyes and the odor of alcohol are �obvious and classic� indications of intoxication).� Judd has not cited this court to any authority which supports her claim that a defendant�s ability to walk and speak without apparent impairment is definitive in a reasonable suspicion analysis, negating all other observations of impairment.� Thus, the fact that Judd was able to walk and speak without apparent impairment does not alter my conclusion that there was other evidence before Larson which was sufficient to support a reasonable suspicion that Judd was impaired.�

�8�� Accordingly, I conclude that the circuit court did not err in denying Judd�s motion to suppress and affirm the judgment of conviction.

�� By the Court.�Judgment affirmed.

�� This opinion will not be published.� See Wis. Stat. Rule 809.23(1)(b)4.

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[1] This appeal is decided by one judge pursuant to Wis. Stat. � 752.31(2)(c) (2009-10).� All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.