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COURT OF APPEALS DECISION DATED AND FILED October 16, 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 an order of the circuit court for
¶1 BRIDGE, J.[1] Jefferson County appeals an order dismissing
the County’s action against Heidi J. Moe for refusing to submit to a chemical
test under
BACKGROUND
¶2 At approximately 1:45 a.m. on October 6, 2007, Jefferson County Deputy Sheriff Daniel Horvatin stopped Moe’s vehicle for driving 68 miles per hour in a 55 mile per hour zone. Before stopping the vehicle, Horvatin did not observe Moe engage in any erratic driving, leave her lane of traffic, or cross over the center line. Horvatin testified that when he approached Moe’s vehicle, he observed that Moe’s eyes were bloodshot and noticed the smell of alcohol. He further testified that Moe stated she was coming from a bar where she was “doing karaoke or DJing a karaoke party.” Moe initially stated that she had consumed one or two alcoholic beverages during the course of the evening, but later admitted to having three.
¶3 Horvatin asked Moe multiple times to exit her vehicle to perform field sobriety tests. However, Moe did not do so. During the course of the exchange between Horvatin and Moe, Moe made a call to someone using her cellular telephone, apparently to determine whether she was obligated to perform the field sobriety tests. Horvatin testified that Moe eventually stated something to the effect that, “If I’m not under arrest, let me leave; otherwise place me under arrest.” Horvatin then informed Moe that she was under arrest and Moe stepped out of her vehicle. Horvatin testified that he read Moe the informing the accused form and asked her to submit to an evidentiary chemical test, which she declined to do.
¶4 Moe was cited for OWI in violation of Wis. Stat. § 346.63(1)(a).[2] She was also issued a notice of intent to revoke her operating privileges on the ground that she had refused one or more chemical tests under Wis. Stat. § 343.305(9) after being placed under arrest.
¶5 A hearing was held on Moe’s refusal to consent to chemical testing. Horvatin was the sole witness at the hearing. In addition, the court reviewed the recording of the traffic stop. The court found that in light of Moe’s “clear speech, lucid conversation, unimpaired balance and generally good driving,” the factors relied upon by the County as establishing probable cause to believe Moe was operating her motor vehicle under the influence of an intoxicant, including “time of day, excess speed, admission of alcohol use, order of intoxicants and bloodshot eyes,” were insufficient. The court therefore ruled that the County had not met its burden to show that Moe’s refusal to consent to the chemical test or tests was unlawful and dismissed the action. The County appeals.
DISCUSSION
¶6 All
persons operating a motor vehicle on the public highways are “deemed to have
given consent to one or more tests of his or her breath, blood or urine, for
the purpose of determining the presence or quantity in his or her blood or
breath, of alcohol … when requested to do so by a law enforcement officer under
sub. (3)(a) ….” Wis. Stat. § 343.305(2). Upon arrest for OWI, an officer may request
that the person arrested provide one or more samples of blood, breath or urine
for testing. Section 343.305(3)(a). If, after being read a form containing the
information required by § 343.305(4), the person refuses to submit to such
testing, the officer is to provide the person with notice of intent to revoke
operating privileges. Section 343.305(9)(a).
The person may contest the revocation by
requesting a hearing. Section 343.305(8)(b).
¶7 The County’s burden at the refusal hearing was to “present
evidence sufficient to establish an officer’s probable cause to believe the
person was driving or operating a motor vehicle while under the influence of an
intoxicant.” State v. Nordness, 128
¶8 In
determining whether Horvatin had probable cause to believe Moe was operating
her motor vehicle under the influence of alcohol, the County first argues that
Moe’s refusal to participate in field sobriety tests should be given “greater
weight” than it otherwise would under different circumstances. It is true that the refusal to submit to a
request to perform field sobriety tests “is indicative of [a] consciousness of
guilt” and may be used as evidence to support a finding of probable cause. State
v. Babbitt, 188
¶9 The
County next argues that regardless of the weight to be given to Moe’s refusal
to submit to field sobriety tests, under the totality of the circumstances a
reasonable police officer would have concluded that Moe was probably
intoxicated. The County points out that
in addition to refusing the field sobriety tests, Moe admitted to having
consumed alcohol, Horvatin observed the odor of alcohol, he observed that her
eyes were bloodshot, and she was stopped for a traffic violation after leaving
a bar at a time of traditionally heightened OWI activity. Moe asserts that her bloodshot eyes were
explained by her five hours of working at the bar, and that she had admitted to
drinking alcohol. She also argues that
speeding is not necessarily an indicator of impairment. In addition, she points out that she was not
observed driving erratically prior to being pulled over, her speech was clear,
and she was not unsteady on her feet.
¶10 We
conclude that under the totality of the circumstances in this case, the facts
did not establish probable cause to believe Moe was operating a motor vehicle
under the influence of an intoxicant. We
therefore affirm the circuit court’s dismissal of the action.
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.