COURT OF APPEALS DECISION DATED AND RELEASED October
5, 1995 |
NOTICE |
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. 94-3395
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
ANN K.
BEGLINGER,
Defendant-Appellant.
APPEAL
from an order of the circuit court for Dane County: PATRICK J. FIEDLER, Judge.
Affirmed.
SUNDBY,
J. The defendant appeals from an order under § 343.305(9), Stats., of the Implied Consent Law
revoking her operating privilege for two years from December 23, 1994.[1] She presents two issues:
I.Did
the trial court erroneously receive evidence that the defendant's vehicle was
speeding, over defense objection, even though there was no foundation for
establishing the reliability of the radar or visual estimate?
II.Did the officer expand the scope of the stop beyond
that legally permissible to investigate a speeding offense when he asked the
defendant to perform field sobriety tests?
The
trial court issued its order after a hearing under § 343.305(9), Stats.[2] Defendant argues that the State failed to
lay a foundation for the officer's testimony that based on a radar reading and
his personal observations he had a reasonable suspicion that defendant was
speeding. After stopping defendant,
Officer Eric Novotny observed signs of intoxication and required defendant to
perform field sobriety tests. He then
arrested defendant, took her to the police station, where she refused to submit
to a breath test or chemical test.
Defendant does not claim that the results of the field sobriety tests
did not provide Officer Novotny with probable cause to arrest her for operating
while under the influence; she argues, however, that Novotny should never have
stopped her, but that once he did, the scope of his investigation was limited
to investigation of speeding and to that only.
We disagree.
We
need not reach the question whether the officer was entitled to rely on the
accuracy of his radar unit. The radar
unit's reading of defendant's speed--seventy-five miles per hour--merely
confirmed the officer's visual observations of defendant's speed. It is too often forgotten that the results
of breath tests, chemical tests, field sobriety tests and personal observation
are merely evidentiary. The absence of
reliable tests does not mean that speeding charges must be dismissed; it merely
means that other tests and observations must carry the State's burden.
Officer
Novotny was asked the following questions and gave the following answers:
QBased
on your visual observations of the vehicle, did your -- were you able to
approximately estimate the speed for that vehicle?
AYes.
QAnd
did that in any way match the radar speed?
AYes,
it did.
....
QWhat
was your visual estimate of the speed?
ASeventy-five miles an hour.
Officer Novotny was an experienced officer, having been
a deputy sheriff for three years. We
conclude that the trial court was entitled to rely on Officer Novotny's visual
observation to determine that he had reason to believe that the defendant had
violated and was violating a traffic law.
See Terry v. Ohio, 392 U.S. 1 (1968); Berkemer
v. McCarty, 468 U.S. 420 (1984).
Defendant
argues that when he stopped her, Officer Novotny had no factual basis to
suspect her of operating under the influence.
The State does not claim otherwise.
However, the State argues that "investigations into seemingly minor
offenses sometimes escalate gradually into investigations into more serious
matters." Berkemer,
468 U.S. at 431. Excessive speed is a
factor which may lead an officer to reasonably anticipate that the offender's
conduct may be affected by his or her consumption of alcohol or other drugs.
Officer
Novotny observed the odor of alcohol coming from defendant's car and her
breath, and that she was "extremely nervous." Certainly, these facts justified his request
that defendant perform field sobriety tests.
Novotny did not command defendant to perform such tests. She participated voluntarily.
We
conclude that from his personal observations, Officer Novotny had an
objectively reasonable suspicion that defendant was operating her vehicle
substantially in excess of the applicable speed limit. His observations were sufficient for him to
make an investigatory stop of defendant's vehicle. After the stop, his further observations gave him probable cause
to believe that defendant was operating while under the influence. The requirements of the Implied Consent Law
were thus satisfied and the trial court correctly ordered that defendant's
operating privilege be revoked for twenty-four months for her failure to submit
to a breath test or chemical test for intoxication.
By
the Court.--Order affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.
[1] This appeal is decided by one judge pursuant
to § 752.31(2)(c), Stats. "We" and "our" refer to
the court.
[2] Section 343.305(9)(a)5, Stats., provides in part:
5. ...[T]he issues of the hearing are limited
to:
a. Whether the officer had probable cause to
believe the person was driving or operating a motor vehicle while under the
influence of alcohol, a controlled substance or a combination of both ....
....
c. Whether the person refused to permit the
test. The person shall not be
considered to have refused the test if it is shown by a preponderance of
evidence that the refusal was due to a physical inability to submit to the test
due to a physical disability or disease unrelated to the use of alcohol, controlled
substances or other drugs.