COURT OF
APPEALS DECISION DATED AND
RELEASED January
16, 1997 |
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. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 96-1576
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
THOMAS
R. KINNAMAN,
Defendant-Appellant.
APPEAL
from an order of the circuit court for Grant County: JOHN R.
WAGNER, Judge. Affirmed.
DYKMAN,
P.J. This appeal is decided by one
judge pursuant to § 752.31(2)(c), Stats. Thomas R. Kinnaman appeals from an order
revoking his operating privileges for one year because he refused to submit to
a chemical breath test as required by § 343.305, Stats. Kinnaman
argues that the police officer that arrested him did not have probable cause to
do so, and therefore he did not violate the implied consent law by refusing to
submit to testing. We reject Kinnaman's
argument and affirm.
BACKGROUND
On
March 31, 1996 at approximately 2:09 a.m., Officer Reginald Ihm of the
University of Wisconsin-Platteville Police Department stopped Kinnaman's
vehicle to inform him that his taillight was out. Kinnaman explained that his taillight had malfunctioned before
and that all he had to do was tap on it and it would come back on.
Ihm
asked Kinnaman for his driver's license and Kinnaman said he did not have
it. Ihm called to verify that
Kinnaman's driver's license was valid.
Officer Marquardt of the Platteville Police Department then contacted
Ihm and asked him if Kinnaman was driving.
Ihm said he was. Marquardt
advised Ihm that he had talked to Kinnaman earlier and told him not to drive
his vehicle because he felt that Kinnaman was too intoxicated to drive.
Ihm
asked Kinnaman to exit his vehicle, which he did. Ihm asked Kinnaman if he had talked to Office Marquardt about not
driving his vehicle, and Kinnaman said, "Well, we talked or we
spoke." Ihm observed that
Kinnaman's eyes were glassy and could smell a strong odor of intoxicants on his
breath. Kinnaman admitted to drinking a
few beers and consented to taking a field sobriety test.
Ihm
first asked Kinnaman to perform the finger-to-nose test, which he performed
adequately. Ihm then asked Kinnaman to
perform the heel-to-toe test. Kinnaman
walked approximately seven steps, then stumbled to the left as he turned. Kinnaman stumbled to the left a second time,
and Ihm stopped the test. Finally, Ihm
asked Kinnaman to perform a balance test.
Kinnaman complied and wobbled slightly while standing. Kinnaman refused to take a preliminary
breath test. Ihm concluded that
Kinnaman was under the influence of intoxicants, arrested him and transported
him to the Platteville Police Department.
After
Kinnaman was issued a notice of intent to revoke operating privileges, he
demanded a refusal hearing. At the
refusal hearing, the court concluded that Kinnaman's arrest was supported by
probable cause and revoked his operating privileges for one year. Kinnaman appeals.
DISCUSSION
Kinnaman
argues that he properly refused to submit to chemical breath testing because
his arrest was not supported by probable cause. Whether undisputed facts constitute probable cause is a question
of law we review de novo. State
v. Drogsvold, 104 Wis.2d 247, 262, 311 N.W.2d 243, 250 (Ct. App. 1981).
In
State v. Babbitt, 188 Wis.2d 349, 356-57, 525 N.W.2d 102, 104
(Ct. App. 1994), we set forth the test for determining probable cause in a
refusal hearing:
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." Probable cause to arrest does not require
"proof beyond a reasonable doubt or even that guilt is more likely than
not." 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]."
(Citations omitted; alterations in original.)
Viewing
the totality of the circumstances, we conclude that Officer Ihm had probable
cause to arrest Kinnaman. Ihm noticed
that Kinnaman's eyes were glassy and that Kinnaman's breath smelled of
intoxicants. Kinnaman admitted to
drinking a few beers. He stumbled twice
during the heel-to-toe test and wobbled slightly during the balance test. This information was sufficient for Ihm to
conclude that Kinnaman was probably driving while intoxicated.
Kinnaman
argues that we should not consider the field sobriety tests in our probable
cause determination because the State did not show that these tests are to be
done in any particular manner or that the tests have any particular passing or
failing point. We disagree. Probable cause is "judged by the
factual and practical considerations of everyday life on which reasonable and
prudent persons, not legal technicians, act." State v. Truax, 151 Wis.2d 354, 360, 444 N.W.2d
432, 435 (Ct. App. 1989). It is common
knowledge that intoxication impairs one's ability to balance. A reasonable and prudent person would know
that a person who stumbles twice while walking heel-to-toe and wobbles slightly
while balancing is more likely to be under the influence of intoxicants than a
person who does not stumble or wobble during these tests. Therefore, the State did not need to prove
the scientific validity of these tests in order for them to be used in a
probable cause determination.
Kinnaman
also makes much of the fact that he was driving his vehicle safely, pulled over
immediately after the officer activated his lights and exhibited good balance
during the officer's routine contact with him.
All of Kinnaman's behaviors did not need to evince intoxication,
however, for Officer Ihm to believe that he was driving while under the
influence of intoxicants. As we have
already stated, Kinnaman's glassy eyes, the odor of intoxicants on his breath,
his admission that he had drank a few beers, and his performance during field
sobriety tests gave Ihm probable cause to believe that he was driving while
under the influence of intoxicants.
Finally,
Kinnaman argues that Officer Marquardt's opinion that Kinnaman was too
intoxicated to drive may not be considered in the probable cause
determination. Kinnaman argues that any
facts known by Officer Marquardt were not established at the probable cause
hearing and, therefore, cannot be said to be known by Officer Ihm at the time
of arrest. Because we have already
concluded that the other facts known by Ihm were sufficient to constitute
probable cause, we need not address this argument. See Sweet v. Berge, 113 Wis.2d 61, 67, 334
N.W.2d 559, 562 (Ct. App. 1983).
By
the Court.—Order affirmed.
Not
recommended for publication in the official reports. See Rule
809.23(1)(b)4, Stats.