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COURT OF APPEALS DECISION DATED AND FILED June 19, 2007 David R. Schanker Clerk of Court of Appeals |
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NOTICE |
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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.� |
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����������� APPEAL from a judgment of the circuit court for Outagamie County:� MARK J. McGINNIS, Judge.� Affirmed.�
�1������� HOOVER, P.J.[1] Alan Lindsay, Jr. appeals a judgment of conviction entered on a jury verdict for operating while intoxicated, first offense.� Lindsay argues the court erred by denying his motion to suppress based on lack of probable cause.� Lindsay contends that under the totality of the circumstances at the time of the arrest, a reasonable police officer would not have believed Lindsay was under the influence of an intoxicant.� We disagree and affirm the judgment.
BACKGROUND
�2������� On April 5, 2006, officer Chad Cleman arrested Lindsay for operating while intoxicated.� Lindsay filed motions to suppress evidence and statements, claiming Cleman did not have reasonable suspicion to stop him or probable cause to arrest him.
�3������� At the motion hearing, Cleman testified that at approximately 1:40 a.m. on April 5, 2006, he observed a vehicle strike the shoulder or the curb of the roadway.� The vehicle swerved back to the center line and struck the curb again.� Cleman then stopped the vehicle, which was operated by Lindsay.��
�4������� Cleman stated he detected the odor of intoxicants while speaking with Lindsay.� He also stated Lindsay�s eyes were bloodshot.� Cleman asked Lindsay if he had been drinking and Lindsay replied that he had, but that �he knew his limit and that he was not intoxicated or over his legal limit.���
�5������� Cleman then asked Lindsay to perform field sobriety tests.� According to Cleman, Lindsay had trouble performing the horizontal gaze nystagmus test.� Cleman testified that the involuntary jerkiness of Lindsay�s eyes indicated alcohol in his system.� Cleman also asked Lindsay to perform a one-legged stand test.� According to Cleman, Lindsay was �very unsteady� while standing on one leg.� Cleman also testified Lindsay failed the walk and turn test because he started walking backwards rather than turning around.� Finally, Cleman testified that Lindsay�s preliminary breath test result was .13%.��
DISCUSSION
�6������� Probable cause exists where the totality of the circumstances within the officer�s knowledge at the time would lead a reasonable officer to believe a violation has occurred.� State v. Nordness, 128 Wis. 2d 15, 35, 381 N.W.2d 300 (1986).� The facts need not prove guilt beyond a reasonable doubt, merely �that the information lead a reasonable officer to believe that guilt is more than a possibility.�� State v. Paszek, 50 Wis. 2d 619, 625, 184 N.W.2d 836 (1971).� The trial court �simply must ascertain the plausibility of a police officer�s account.�� Nordness, 128 Wis. 2d at 36.� �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. Kasian, 207 Wis. 2d 611, 621, 558 N.W.2d 687 (Ct. App. 1996).
��7������ Lindsay argues there was insufficient probable cause to arrest him.[2]� He claims his eyes were bloodshot due to his recently leaving a smoky bar.� Lindsay further claims he performed many parts of the field sobriety tests correctly and, therefore, did not fail the tests.
�8������� Lindsay�s argument that he did not fail the field sobriety tests is a question of credibility, which we will not examine on appeal.� The trial court, not the appellate court, is the ultimate arbiter of weight and credibility.� Wis. Stat. � 805.17(2).� Its credibility assessments will not be overturned on appeal unless they are inherently or patently incredible.� Chapman v. State, 69 Wis. 2d 581, 583, 230 N.W.2d 824 (1975).�
�9������� Looking at the totality of the circumstances, we conclude that Cleman had probable cause to arrest Lindsay.� Cleman observed Lindsay strike the curb twice.� In addition, Cleman detected an odor of intoxicants in Lindsay�s car and observed that Lindsay had bloodshot eyes.� Lindsay also performed poorly on the field sobriety tests.� Finally, Lindsay admitted drinking.[3]� Lindsay�s innocent explanation for why his eyes were bloodshot is irrelevant.� Probable cause may exist notwithstanding a possible innocent explanation for the defendant�s conduct.� State v. Higginbotham, 162 Wis. 2d 978, 995, 471 N.W.2d 24 (1991).�
����������� By the Court.�Judgment affirmed.
����������� This opinion will not be published.� See Wis. Stat. Rule 809.23(1)(b)4.
[1] This appeal is decided by one judge pursuant to Wis. Stat. � 752.31(2).� All references to the Wisconsin Statutes are
to the 2005-06 version unless otherwise noted.
[2] Lindsay�s brief violates Wis. Stat. Rule 809.19(1)(e) by failing to provide any
citation to the record in his argument section.�
�Time is scarce, and judicial resources must �not [be] frittered away�
attempting to ascertain the true state of the record.�� Mogged v. Mogged, 2000� WI App 39, �22, 233 Wis. 2d 90, 607 N.W.2d
662.
[3] Lindsay also argues there was insufficient probable
cause to arrest him because his preliminary breath test registered .06%.� However, in reviewing the record it is clear
that Cleman testified Lindsay�s preliminary breath test had a reading of .13%,
while Lindsay claimed the test only registered .06%.� This is a question of fact we will not
resolve on appeal.� It does not appear
that the trial court made a finding of fact on this issue or based its holding
that there was probable cause on the preliminary breath test results.�
The preliminary breath test is not the sole
determinant of probable cause to arrest.�
County of Dane v. Sharpee, 154 Wis. 2d 515, 520, 453
N.W.2d 508 (Ct. App. 1990).� Its results
may be outweighed by other indicia of intoxication.� See id.�
In this case, there is sufficient probable cause regardless of
the preliminary breath test results.�