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COURT OF
APPEALS DECISION DATED AND
RELEASED February
20, 1997 |
NOTICE |
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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. 96-2281-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
DALE
W. ROBINSON,
Defendant-Appellant.
APPEAL
from an order of the circuit court for Marquette County: RICHARD O. WRIGHT, Judge. Affirmed.
VERGERONT,
J.[1] Dale
Robinson appeals the trial court's order revoking his operating privileges
after Robinson refused to submit to chemical testing. Robinson contends that the officer did not have probable cause to
arrest him for driving while under the influence of an intoxicant at the time
the officer requested Robinson to submit to chemical testing. We conclude there was probable cause to
arrest Robinson and we therefore affirm.
BACKGROUND
At
the refusal hearing, the State's sole witness was Les Crandall, deputy sheriff
for Marquette County. He testified as
follows. While on duty on
February 16, 1996, at approximately 2:00 a.m. he observed a van driving
with a headlight out. He pulled the van
over and identified the driver as Dale Robinson. Crandall observed that Robinson's speech was slow and slurred,
his eyes were bloodshot and glassy, and Crandall smelled intoxicants on
Robinson's breath. Crandall asked
Robinson if he had been drinking and Robinson said he had a couple of beers
after work.
Crandall
then asked Robinson to perform field sobriety tests. Crandall observed that Robinson had trouble unfastening his seat
belt to get out of the van. When
Robinson got out of the van, Crandall noticed that he was a little bit off
balance when he walked.
Crandall
first asked Robinson to perform the horizontal gaze and nystagmus [HGN] test,
which involved Robinson tracking with his eyes. Crandall observed a lack of smooth pursuit in both eyes and
nystagmus (a rapid involuntary oscillation of the eyeball) at maximum deviation
in both eyes and an onset of nystagmus prior to forty-five degrees in both
eyes.
Robinson
then performed the walk and turn test, after Crandall demonstrated how to do it
and instructed Robinson. In
administering this test, Crandall looks to see if the person takes nine
heel-to-toe steps as instructed, stays on the line, turns correctly and is able
to keep his or her balance. Crandall
asked Robinson to remain in a heel-to-toe stance while Crandall demonstrated
and instructed. Robinson was not able
to do remain in the heel-to-toe stance.
Robinson took eighteen to nineteen heel-to-toe steps each way in
performing the test. Crandall
instructed Robinson to turn by pivoting on his lead foot and taking small steps
with his other foot. Robinson did not
do that but instead spun on his lead foot without taking steps with his other
foot. Robinson did not stay on the line
he was instructed to walk on but stepped off the line on step two.
The
next test was the one-leg stand. In
this test the subject is to raise a foot and keep it raised while counting to
thirty and is not to hop or sway or raise the arms. Robinson put his raised foot down on the count of one and started
over. Crandall had instructed Robinson
to continue, rather than start over.
Robinson
then submitted a breath sample for the preliminary breath test (PBT), and the
result was .12. At that point Crandall
formed the opinion that Robinson was operating under the influence of an
intoxicant and placed Robinson under arrest.
Crandall handcuffed Robinson, searched him, and placed him in the back
of the squad car. By that time another
officer had arrived. Crandall found a
brown wallet lying on the ground next to the van, which he gave to Robinson,
and during a search of the van found a beer bottle between the driver's seat
and the passenger's seat with a bit of liquid that smelled of alcohol.
Crandall
transported Robinson to the police station where he issued Robinson a citation
for operating while under the influence of an intoxicant, second offense, in
violation of § 346.63(1)(a), Stats.,
and a citation for having open intoxicants in a vehicle. Crandall read Robinson a document
entitled: "Informing the
Accused" which explains the requirements for submitting to a chemical test
under Wisconsin's implied consent law.[2] Crandall initialed each statement in Section
A of the document after he read it to Robinson.[3]
When
Crandall asked Robinson if he would submit to a chemical test of his breath,
Robinson stated he wanted a blood test.
Crandall explained that Robinson first had to submit to the department's
primary test, the breath test, and Robinson repeated that he wanted a blood
test. After Crandall told Robinson at
least one more time that he needed to take the primary test first, Robinson
said he was not going to make any more statements, he wanted an attorney, and
he was going to remain silent. Crandall
told Robinson that he was going to take Robinson's silence as a refusal, and
Robinson did not respond. Crandall took
Robinson's silence as a refusal and issued Robinson a notice of intent to
revoke operating privileges.
Robinson
also testified at the refusal hearing.
He had been to the dentist earlier on the day he was stopped by
Crandall, had a tooth pulled, and had cotton in his mouth. He recalled performing the HGN test, the
walk and turn test, the one-leg stand and the PBT test. On the walk and turn test, he took eighteen
steps rather than nine because of a misunderstanding, and he was walking on any
line he could see. He wanted a blood
test rather than a breath test because he had already taken the PBT and he knew
he blew a .12. He never said
"no" to an intoxilizer breath test at the station, he just stated
that he wanted a blood test. After
Crandall read the "Informing the Accused" document to him, he
understood that he had already taken a breath test, the PBT, and that he could
have another type of test. He did not
recall whether Crandall told him at the station that he had to take a breath
intoxilizer test at the station before he could have a blood test.
The
court concluded that Crandall had probable cause to believe that Robinson was
operating under the influence of an intoxicant and found that Robinson did
refuse to submit to a chemical test after Crandall read the "Informing the
Accused" form to him and after Crandall explained that his silence would
be considered a refusal. Robinson does
not challenge on appeal the trial court's determination that he refused to
submit to a chemical test after being properly informed.
DISCUSSION
Before
a person's operating privileges can be revoked for refusing to submit to a
chemical test, there must be probable cause to believe that the person was
driving while under the influence of an intoxicant. Section 343.305(9)(a)5.a, Stats. Robinson argues that probable cause was
lacking for three reasons. We
understand Robinson's first contention as follows: Although Crandall did have a reasonable suspicion of a traffic violation--a
non-functioning headlight--to stop Robinson such that the initial stop did not
violate Terry v. Ohio, 392 U.S. 1 (1968), that reasonable
suspicion did not justify Crandall in asking Robinson to perform field sobriety
tests. Therefore, the information that
Crandall gathered as a result of the field sobriety tests could not be used as
a basis for asking Robinson to submit to a PBT or for probable cause.
We
consider this argument close to frivolous, if not frivolous. In determining whether an officer has
reasonable suspicion, we consider all the specific and articulable facts
together with the rational inferences from those facts. See Terry, 392 U.S. at
21. The question of what constitutes
reasonable suspicion is a common sense test:
under all the facts and circumstances present, what would a reasonable
police officer reasonably suspect in light of his or her training and
experience. State v. Jackson,
147 Wis.2d 824, 834, 434 N.W.2d 386, 390 (1989).
Once
Crandall stopped Robinson for the broken headlight, he observed Robinson to
have slow and slurred speech, glassy and bloodshot eyes, and an odor of
intoxicants on his breath. Those
observations are specific and articulable facts, and those facts and the
rational inferences from those facts are sufficient to reasonably warrant further
investigation to determine whether Robinson was driving while under the
influence of an intoxicant. Crandall's
question whether Robinson had been drinking was therefore proper, and upon the
answer that he had been drinking, the request to perform field sobriety tests
was also proper. Even though there
might be explanations for bloodshot eyes and slurred speech other than being
under the influence of an intoxicant, the inference from those facts that
Robinson was under the influence of an intoxicant is nevertheless a rational
inference. See Jackson,
147 Wis.2d at 835, 434 N.W.2d at 391.
Robinson
next argues that the field sobriety tests violated the protections of Terry
because, even if Crandall were justified in investigating further to determine
if Robinson was driving while under the influence, the State did not prove that
the field sobriety tests were pertinent to that inquiry. According to Robinson, the State must
present an expert opinion that the results of the test are probative of intoxication
and Crandall's testimony did not suffice.
Robinson
presents no authority for this argument.
Crandall testified that he had been employed as a deputy sheriff for
four years, and that before he arrested Robinson, he had training in the
detection of potentially intoxicated drivers at the academy and had specialized
training in the standardized field sobriety tests. Crandall had experience in arresting persons for driving while
intoxicated, having arrested approximately seventy to seventy-five persons for
that offense. This is sufficient evidence,
coupled with Crandall's description of the tests he asked Robinson to perform,
to establish that performance of the tests would provide information pertinent
to determining whether Robinson was intoxicated. We conclude that the tests were reasonable investigatory tools
to either dispel or confirm Crandall's
reasonable suspicion that Robinson was intoxicated. See Terry, 392 U.S. at 22.
Robinson's
third argument is closely related to the second. He contends that the State did not establish that the officer's
observations of Robinson's performance on the field sobriety tests were
indicative of an impaired ability to drive.
We reject this argument.
Probable
cause exits when the totality of the circumstances within the officer's
knowledge would lead a reasonable officer to believe that the individual was
operating a motor vehicle while under the influence of an intoxicant. State v. Nordness, 128 Wis.2d
15, 35, 381 N.W.2d 300, 308 (1986).
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).
Crandall's
testimony was sufficient to establish that Robinson's performance on the field
sobriety tests provided a reasonable basis for believing that Robinson's
ability to drive was impaired by reason of intoxication. Robinson was not able to maintain his
balance in a heel-to-toe stance, was not able to walk on the line, was not able
to do the one-legged stand without starting over and did not follow
instructions in several instances in spite of explanation and
demonstration. These facts give rise to
a reasonable inference that Robinson's ability to maintain his balance and to
pay attention were impaired. It is
common knowledge, and certainly well within the knowledge of a police officer
with Crandall's training and experience, that intoxication impairs one's
ability to balance and one's ability to pay attention. A reasonable and prudent officer would know
that a person who could not keep his or her balance or follow instructions on
the tests is more likely to be under the influence of intoxicants than one who
could do those things. It is also
common knowledge that an inability to control and coordinate one's physical
movements and to pay attention impairs one's ability to properly drive a
vehicle. A reasonable and prudent
officer would know that a person who performed as Robinson did on the tests was
more likely to have an impaired ability to drive than a person who was able to
follow instructions and did not lose his or her balance while performing the
tests.
We
conclude that the results of the field sobriety tests together with Crandall's
other observations of Robinson, which we have recited above, establish that
Crandall had probable cause to believe that Robinson was driving while under
the influence of an intoxicant. The
revocation of operating privileges was therefore proper.
By
the Court.—Order affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.
[2] Section 343.305(2), Stats., known as the implied consent law, states that any
person who drives a vehicle on the public highways of this state is deemed to
have given his consent for chemical testing when requested to do so by a law
enforcement officer. Section 343.305(2)
requires law enforcement to provide at its expense at least two of three
approved tests to determine the presence of alcohol in the breath, blood or
urine of a suspected intoxicated driver.
State v. Stary, 187 Wis.2d 266, 269, 522 N.W.2d 32, 34
(Ct. App. 1994). Law enforcement may
designate one of those two as its primary test. Id. Once a
person consents to the primary test, the person is permitted, at his or her
request, the alternate test the agency chooses, at the agency's expense, or a
reasonable opportunity to a test of the person's choice at the person's
expense. Id. at 270, 522
N.W.2d at 34. The officer must inform
the arrestee of the arrestee's implied consent to a test; that if the arrestee
refuses the test his license shall be revoked; and that the arrestee may have
an additional test performed. Section
343.305(4)(d). If testing is refused,
the officer issues a notice of intent to revoke the person's operating
privileges, and operating privileges are revoked unless a hearing is requested. Section 343.305(9) and (10).