COURT OF APPEALS DECISION DATED AND FILED August 7, 2008 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
�1������� BRIDGE, J.[1]�� Daniel C. Bielmeier appeals a judgment convicting him of operating a motor vehicle with a prohibited alcohol concentration, second offense.� He challenges the trial court�s denial of his motion to suppress the results of a preliminary breath test (PBT).� He contends that the arresting officer did not have the requisite probable cause under Wis. Stat. � 343.303 to administer the test, and, hence, did not have probable cause for the arrest.� We disagree and affirm the judgment.
BACKGROUND
�2������� The relevant facts are from the suppression hearing.� The arresting officer was the sole witness.� The officer testified that at approximately 2:30 a.m. on the day in question, he observed a vehicle traveling eastbound on Main Street in the City of Wautoma at a speed he estimated to be forty miles per hour in a twenty-five miles per hour zone. �After confirming the vehicle�s speed to be forty miles per hour through the use of radar, the officer activated his emergency lights and pursued the vehicle.� The vehicle did not pull over immediately, but instead continued for approximately fifteen to twenty seconds, making a right turn from Main Street to Division Street and then another right turn from Division Street into a parking lot where the traffic stop ultimately took place.�
�3������� The officer exited his squad car and approached the vehicle.��� Bielmeier rolled his window down and the officer noticed the odor of intoxicants coming from inside the vehicle.� Bielmeier told the officer that he was coming from Grimm�s, a local bar.� The officer was familiar with the bar and knew that it closed at 2:30 a.m.� Bielmeier said that he had been drinking there and had consumed four beers.� When asked how long he had been drinking, Bielmeier said that he was playing cards with friends before going to the bar and had started drinking when the card playing ended.� The officer asked Bielmeier to submit to field sobriety tests, and Bielmeier consented.�
�4������� The first test administered was a one-leg-stand test.� The officer instructed Bielmeier to count in a series of thousands.� As Bielmeier performed this test, he quickly counted to thirty and then put his foot down.� The officer observed one �clue,� or sign of intoxication.� The second test administered was a walk-and-turn test.� The officer instructed Bielmeier to take nine heel-to-toe steps, turn using short, choppy steps, and return in nine heel-to-toe steps, all while keeping his arms at his sides.� As Bielmeier performed the test, the officer observed three clues. �Bielmeier turned improperly, in a spinning rather than choppy motion; he misstepped twice on his return; and he brought his arms out from his body, likely to maintain balance.� The last field sobriety test the officer administered was a fingertip-to-nose test, which Bielmeier passed.�
�5������� The officer then asked Bielmeier to submit to a PBT.� The PBT registered a result of .16, above the legal limit of .08.� Bielmeier was placed under arrest and subsequently charged with operating a motor vehicle with a prohibited alcohol concentration and operating a motor vehicle while under the influence of an intoxicant, both second offense charges.
�6������� Bielmeier moved to suppress the evidence from the PBT, arguing that the arresting officer did not have probable cause to administer the test.� The circuit court denied the motion and Bielmeier was subsequently convicted of operating a motor vehicle with a prohibited alcohol concentration, second offense.� Bielmeier appeals his conviction, challenging the denial of his motion to suppress.
STANDARD OF REVIEW
�7������� When reviewing a motion to suppress, we will uphold the
circuit court�s findings of fact unless they are clearly erroneous.� State v. Mata, 230
DISCUSSION
�8������� The
issue before us is whether the officer had probable cause to administer a PBT
under Wis. Stat. � 346.303.� Although he does not
argue this explicitly, Bielmeier apparently contends that without the PBT
results, no probable cause for arrest exists.�
Wisconsin Stat. � 343.303 provides, in relevant part: ��If a law enforcement officer has probable cause to believe that the
person is violating or has violated s. 346.63(1)[2]
� the officer, prior to an arrest, may request the person to provide a sample
of his or her breath for a preliminary breath screening test �.�
�9������� In
County of Jefferson v. Renz, 231
�10����� The
defendant in Renz exhibited
the following indicators of intoxication: �(1) his vehicle smelled of intoxicants; (2) he
admitted to drinking three beers; (3) he exhibited one clue on the
one-leg-stand test; (4) he exhibited two clues and one indicator on the heel-to-toe
walking test; and (5) he exhibited one indicator on the finger-to-nose
test.�
�11����� Bielmeier
exhibited the following indicators of intoxication: �(1) his vehicle smelled of intoxicants; (2) he
admitted to drinking four beers without any time-specific reference; (3) he
exhibited one indicator on the one-leg-stand test; and (4) he exhibited three
clues on the walk-and-turn test.� In
addition, the fact that Bielmeier�s
speeding occurred around �bar time� can lend credence to a suspicion
that he was intoxicated.� See State v. Post, 2007 WI 60, �36,
301
�12����� Bielmeier
contends that the officer in the present case had less information regarding
his intoxication than did the officer in Renz.� However, the Renz court did not declare that the facts in that case
represented the minimum level of proof necessary to constitute probable cause
under the PBT statute.� We are satisfied
that the information available to the officer made it appropriate to turn to
the PBT to assist in the decision of whether Bielmeier should be arrested.
�13����� For
the foregoing reasons, we conclude,
based on the record, that the officer had the requisite probable cause to
administer a PBT.� We conclude further
that, under the totality of the circumstances, see
����������� 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)(c) (2005-06). All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[2]
Operating
under influence of intoxicant or other drug.
(1) No person may drive or operate a motor vehicle while:
(a) Under the influence of an intoxicant, a controlled substance, a controlled substance analog or any combination of an intoxicant, a controlled substance and a controlled substance analog, under the influence of any other drug to a degree which renders him or her incapable of safely driving, or under the combined influence of an intoxicant and any other drug to a degree which renders him or her incapable of safely driving; or
(am) The person has a detectable amount of a restricted controlled substance in his or her blood.
[3] The
horizontal gaze nystagmus (HGN) was also administered to Renz, and he exhibited
all six clues on this test.� However, the
supreme court concluded that the officer had sufficient probable cause to request
the PBT even without the HGN.� County of Jefferson v. Renz, 231