COURT OF APPEALS DECISION DATED AND RELEASED November 20, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
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No. 96-1259-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
GEMMA L. KITZMAN,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Waukesha County:
LEE S. DREYFUS, JR., Judge. Affirmed.
NETTESHEIM, J. Gemma
L. Kitzman appeals from a judgment of conviction for operating a motor vehicle
with a prohibited blood alcohol concentration pursuant to § 346.63(1)(b),
Stats. Kitzman challenges the trial court’s denial of her motion to
dismiss or suppress. Specifically,
Kitzman argues that the arresting officer did not have probable cause to arrest
her. We uphold the trial court's ruling
and affirm the judgment of conviction.
BACKGROUND
On August 16, 1995, at
approximately 2:00 a.m., Officer David Reid observed a vehicle enter East
Summit Avenue from South Silver Lake Road in the city of Oconomowoc. During the turn, the rear of the vehicle
slid and struck the curb. While
traveling on East Summit Avenue, the vehicle twice swerved and crossed the
centerline into the oncoming westbound lane of traffic. The second time the vehicle crossed the
centerline, it continued to travel in the westbound lane.
Reid then activated the
emergency lights and siren on his squad.
The vehicle proceeded for two blocks before pulling over. When the vehicle stopped, a white male
jumped from the passenger side of the vehicle and ran from the scene. At the time, there was a heavy downpour of
rain.
As Reid approached the
vehicle, the female driver, eventually identified as Kitzman, opened the
driver's side door and stared straight ahead.
Reid asked Kitzman for her driver's license. After several minutes of searching her purse for identification,
Kitzman handed Reid a pile of cards in which he located her driver's
license. Reid observed that Kitzman’s
eyes were completely bloodshot, that she emitted a very strong odor of
intoxicants and that her speech was slurred.
Reid asked Kitzman if she had been drinking to which she replied that
she had a couple of beers. Reid then
asked Kitzman if she knew the alphabet and to recite it. Kitzman recited, “A, B, C, F” and then stopped.
Reid asked Kitzman to
exit the vehicle and informed her that she was under arrest for operating while
intoxicated. He also advised Kitzman
that he would transport her to the police department where she would be
requested to perform additional sobriety tests to confirm his suspicion that
she was intoxicated. Reid explained that
he chose not to have Kitzman perform the tests at the scene of the arrest
because of the heavy rains.
At the police station,
Kitzman was asked to perform a horizontal gaze nystagmus test, a walk and turn
test and a one-leg stand test. Kitzman
was unable to perform any of these tests satisfactorily. Kitzman then submitted to a blood-alcohol
test which indicated a BAC of .20%.
Kitzman was charged with
operating while intoxicated and operating with a prohibited BAC
concentration. She filed a motion to
dismiss the complaint, contending that Reid lacked probable cause to arrest
her. Alternatively, she sought to
suppress the BAC evidence on the same grounds.
Following a hearing, the trial court denied the motion. Following this ruling, Kitzman pled no
contest to the BAC charge. She appeals
the trial court's ruling denying her dismissal and suppression motion.
DISCUSSION
Whether probable cause
to arrest exists based on the facts of a given case is a question of law which
we review independently of the trial court.
State v. Truax, 151 Wis.2d 354, 360, 444 N.W.2d 432, 435
(Ct. App. 1989). In determining whether
probable cause exists, we must look to the totality of the circumstances to
determine whether 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.” State v. Babbitt, 188 Wis.2d
349, 356, 525 N.W.2d 102, 104 (Ct. App. 1994) (quoted source omitted). “Probable cause to arrest does not require
proof beyond a reasonable doubt or even that guilt is more likely than
not.” Id. at 357, 525
N.W.2d at 104 (quoted source omitted).
It is sufficient that a reasonable officer would conclude, based upon
the information in the officer’s possession, that the “defendant probably
committed [the offense].” State
v. Koch, 175 Wis.2d 684, 701, 499 N.W.2d 152, 161, cert. denied,
510 U.S. 880 (1993).
Furthermore, this court is not bound by the officer’s subjective assessment
or motivation. State v. Anderson,
149 Wis.2d 663, 675, 439 N.W.2d 840, 845 (Ct. App. 1989), rev’d on other
grounds, 155 Wis.2d 77, 454 N.W.2d 763 (1990); see also Terry
v. Ohio, 392 U.S. 1, 21-22 (1968).
Kitzman argues that Reid
did not have probable cause to arrest her.
Instead, she claims that Reid merely harbored a suspicion that she might
be intoxicated and that these suspicions were not confirmed and did not rise to
the level of probable cause until her unsuccessful performance of the remaining
field sobriety tests at the police station.
Kitzman further reasons that if Reid had probable cause to arrest her at
the scene, the additional tests at the police station would have been
unnecessary.
We disagree with
Kitzman's argument. The facts confronting
Reid established unusual and erratic driving by Kitzman. She struck the curb as she made her turn
onto East Summit Avenue and she twice crossed the centerline, remaining in an
oncoming lane of traffic after the second crossing. After stopping the vehicle, Reid detected the odor of alcohol
emanating from Kitzman’s car, noticed that Kitzman's eyes were bloodshot, and
observed that she was unable to correctly recite the alphabet beyond the first
three letters. In addition, Kitzman
could not produce her license from amongst the other cards in her purse and
admitted that she had been drinking.
We hold that these facts
were sufficient to allow a reasonable officer in Reid's position to conclude
that Kitzman was probably operating her vehicle while under the influence of an
intoxicant.
Kitzman contends,
however, that the administration of field sobriety tests is essential to
probable cause to arrest. She relies on
the following language from State v. Swanson, 164 Wis.2d 437, 475
N.W.2d 148 (1991):
Unexplained erratic driving, the odor of
alcohol, and the coincidental time of the incident form the basis for a
reasonable suspicion but should not, in the absence of a field sobriety test,
constitute probable cause to arrest someone for driving while under the
influence of intoxicants.
Id. at
454 n.6, 475 N.W.2d at 155. However,
this language has since been qualified.
“The Swanson footnote does not mean that under all
circumstances the officer must first perform a field sobriety test, before
deciding whether to arrest for operating a motor vehicle while under the
influence of an intoxicant.” State
v. Wille, 185 Wis.2d 673, 684, 518 N.W.2d 325, 329 (Ct. App.
1994). Thus, the question of probable
cause is properly assessed on a case-by-case basis. In some cases, the field sobriety tests may be necessary to
establish probable cause; in other cases they may not. This case, we conclude, falls into the
latter category.
Moreover, unlike Swanson,
this case involves more than erratic driving and the odor of intoxicants. Kitzman could not locate her driver's
license, her speech was slurred, she admitted that she had been drinking, and
she could not correctly recite beyond the first three letters of the alphabet. Reid had numerous objective grounds to reasonably
conclude that Kitzman was intoxicated despite the lack of field sobriety
tests.
Nor do we agree that
Reid's decision to have Kitzman perform the field sobriety tests at the police
station, rather than at the scene of the arrest, means that probable cause for
the arrest did not exist. We
acknowledge that in most instances, field sobriety tests are administered at
the scene of the arrest. Here, however,
the inclement weather rendered that exercise impractical, and, arguably, unfair
to Kitzman.
Regardless of the later
field sobriety tests, we measure probable cause by the facts and circumstances
which produced the arrest—not by later accumulated evidence which supports or
detracts from the validity of the arrest.
CONCLUSION
We conclude that Reid
had probable cause to arrest Kitzman.
The trial court properly denied Kitzman’s motion to dismiss or
suppress. We affirm the judgment of
conviction.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.