COURT OF APPEALS DECISION DATED AND FILED July 1, 2009 David
R. Schanker Clerk of Court of Appeals |
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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 No. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT II |
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State of
Plaintiff-Respondent, v. Jill Y. Treleven,
Defendant-Appellant. |
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APPEAL
from a judgment of the circuit court for
¶1 ANDERSON, P.J.[1] Jill Y. Treleven contends that the arresting officer lacked reasonable suspicion to initiate a traffic stop and did not develop probable cause to support her arrest for operating a motor vehicle while intoxicated (OWI). We agree with the trial court that under the totality of the circumstances, there was reasonable suspicion to support an investigative traffic stop, and the arresting officer had probable cause to arrest Treleven. Therefore, we affirm her conviction for fourth offense OWI.
¶2 In an amended criminal complaint, Treleven was charged with one count of OWI, fourth offense, Wis. Stat. §§ 346.63(1)(a), 346.65(2)(am)4., and 346.65(2)(g)1., and one count of operating a motor vehicle with a prohibited alcohol concentration, fourth offense (PAC), §§ 346.63(1)(b), 346.65(2)(am)4., and 346.65(2)(g)1. She filed a motion to suppress, which was denied after an evidentiary hearing. She entered a no contest plea to the count of OWI and the PAC count was dismissed. She now appeals the denial of her motion to suppress. We will deal first with her contention that there was no reasonable suspicion to conduct an investigative stop, and then we will address her contention that there was no probable cause to support her arrest.
¶3 Reasonable Suspicion. At 2:24 a.m. on Saturday, June 21, 2008, City
of
¶4 On appeal, Treleven faults Trucksa for not knowing the statute number, “[h]owever, Officer Trucksa never specifically addressed what Wisconsin State Traffic Law was violated.” She also faults the trial court for not providing the statute number, “[t]he Court never indicated what state statute was violated.”[2] Treleven suggests that the applicable traffic regulations are either Wis. Stat. §§ 346.09(1) or 346.13.[3] Substantively, Treleven argues that there is no evidence that her actions interfered with other traffic or that she crossed the center line while attempting to pass another vehicle. She contends that under the totality of the circumstances, Trucksa lacked reasonable suspicion to initiate a traffic stop.
¶5 On review of a trial court’s ruling on a motion to suppress
evidence, we shall uphold the court’s findings of fact unless they are clearly
erroneous and independently determine whether the investigative detention was
constitutionally reasonable. State
v. Betow, 226
¶6 Investigative traffic stops are subject to the constitutional
reasonableness requirement. State
v. Post, 2007 WI 60, ¶12, 301
¶7 The crucial question is whether the facts of the case would
warrant a reasonable police officer, in light of his or her training and
experience, to suspect that the individual has committed, was committing, or is
about to commit a crime.
¶8 We point out that, in this case, Treleven did violate a traffic regulation, she operated over a double yellow line in violation of Wis. Stat. § 346.09(3). An officer has a statutory duty to enforce the law where he or she observes a traffic violation. Wis. Stat. § 349.02(1). On our highways there are no grace periods, like the five-second rule in the kitchen.[4] A driver does not have to cross the double yellow line by a certain number of feet to have violated the traffic regulation because of the carnage that is caused daily by violations of traffic regulations.[5]
¶9 There are a number of building blocks we can also consider in
deciding if the totality of the circumstances equation supports a finding of
reasonable suspicion. State
v. Allen, 226
¶10 Probable Cause. In Dane County v. Sharpee, 154
Probable cause to arrest exists where the officer, at the time of the arrest, has knowledge of facts and circumstances sufficient to warrant a person of reasonable prudence to believe that the arrestee is committing, or has committed, an offense. As the very name implies, it is a test based on probabilities; and, as a result, the facts faced by the officer “need only be sufficient to lead a reasonable officer to believe that guilt is more than a possibility.” It is also a commonsense test.
¶11 When Trucksa reached Treleven’s car, she noticed that Treleven’s eyes were glassy and bloodshot and she could detect the odor of intoxicants coming from Treleven. Treleven admitted that she had had a couple of beers at a friend’s house. As Treleven began to exit the car, Trucksa determined that Treleven was physically handicapped and had to use a wheelchair. Because of her physical limitations, Trucksa did not ask her to perform any physical field sobriety tests.
¶12 The officer had Treleven remain in the car, facing the officer with her feet on the pavement, when the officer administered nonphysical field sobriety tests. The first test administered was the horizontal gaze nystagmus test (HGNT). The officer testified that she administered it in accordance with her training and detected all six clues of alcohol impairment. Next, Treleven successfully completed two verbal field sobriety tests. When the officer asked Treleven to take the preliminary breath test (PBT), she replied, “Well, then, you caught me.”
¶13 Treleven asserts that the results on the HGNT are suspect because
Trucksa did not account for the possible adverse affect of strobing
lights. She argues, “[c]learly, when the
strobe lights were on throughout this test, the possibility for interference
with the results of the horizontal gaze nystagmus was very likely.” There was no evidence that strobe lights can
have an adverse effect on the HGNT, and the only testimony from Trucksa was
that her squad car’s emergency lights were not in Treleven’s line of sight when
she administered the HGNT. In State
v. Wille, 185
¶14 Treleven places stock in her passing the two verbal field
sobriety tests that were administered.
While she acknowledges that field sobriety tests are not always
necessary to establish probable cause, she contends that, in those cases discussing
the concept, “the driving in question is far worse.” This argument ignores a general principal we
apply in these cases; a police officer has probable cause to arrest when the
totality of the circumstances within that officer’s knowledge at the time of
the arrest would lead a reasonable police officer to believe that the defendant
probably drove while intoxicated. State
v. Koch, 175
¶15 Before considering the totality of the circumstances, we will
address Treleven’s argument that her refusal to take the PBT should not be
considered consciousness of guilt. She
argues that while the refusal to take a mandatory evidentiary test is
consciousness of guilt, see State v. Albright, 98
¶16 We agree with the trial court that under the totality of the circumstances, Trucksa had probable cause to arrest Treleven for drunk driving. The building blocks that make up probable cause include Treleven’s violation of a traffic regulation; time of day; glassy, bloodshot eyes; odor of an intoxicant; HGNT provided six clues of impairment; and the refusal to submit to the PBT. We are satisfied that a reasonable and prudent police officer would reach the conclusion that there was probable cause to arrest.
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)(f) (2007-08). All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[2] This court knows of no law, and none is cited by Treleven, to support her contention that the officer’s reasonable suspicion must be based on the officer’s knowing the statute number of the traffic regulation she suspects a driver of violating.
[3] Based upon the evidence in this case, that Treleven’s wheels crossed a double yellow line, the pertinent section of Wis. Stat. § 346.09 provides:
(3) The operator of a vehicle shall not drive on the left side of the center of a roadway on any portion thereof which has been designated a no-passing zone, either by signs or by a yellow unbroken line on the pavement on the right-hand side of and adjacent to the center line of the roadway, provided such signs or lines would be clearly visible to an ordinarily observant person.
[4] “[I]f
you pick up a dropped piece of food before you can count to five, it’s O.K. to
eat it.” Harold McGee, The Five-Second Rule Explored, or How Dirty
Is That
&en=241e6e22e405bc24&ei=5090&partner=rssuserland&emc=rss (last
visited June 10, 2009).
[5] In
a concurring opinion in Tate v. Short, 401