|
COURT OF
APPEALS DECISION DATED AND
RELEASED May
23, 1996 |
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. 95-2590
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
COUNTY
OF DANE,
Plaintiff-Respondent,
v.
WENDY
A. LAUFENBERG,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Dane County: SARAH B. O'BRIEN, Judge. Affirmed.
SUNDBY,
J. Defendant-Appellant Wendy A. Laufenberg appeals from a
judgment entered September 11, 1995, convicting her of operating a motor
vehicle while under the influence of an intoxicant and operating a motor
vehicle with a prohibited blood alcohol content. She presents two issues:
(1) Did
the officer expand the scope of the stop beyond that legally permissible for
investigating a speeding offense when he questioned Laufenberg about how much
she had to drink? We[1]
conclude that the officer had a reasonable suspicion that Laufenberg was operating
a motor vehicle while intoxicated which justified his investigation.
(2) Did the trial court err in giving weight to the
horizontal gaze nystagmus test even though that test was administered
incorrectly? We conclude that the
evidence supports the judgment even if the test was administered incorrectly.
We
therefore affirm the judgment.
The
only witness was Dane County Sheriff's Deputy Kurt A. Pierce. He testified that on April 4, 1995, at
approximately 10:15 p.m., he stopped Laufenberg for traveling approximately
seventy miles per hour in a fifty-five mile per hour speed zone. In response to Pierce's question, Laufenberg
said that she thought she was operating at approximately sixty miles per
hour. While he was talking to
Laufenberg, Pierce detected a moderate odor of intoxicants from her breath, and
observed that she was chewing gum. He
asked her how much she had to drink that evening and she responded that she was
coming from a party and had three margaritas.
He then administered field sobriety tests to Laufenberg. The tests included the walk-and-turn test,
the one-leg stand test, the preliminary breath test (PBT), and the horizontal
gaze nystagmus (HGN) test. Laufenberg
claims that Pierce administered the latter test incorrectly. While we disagree, we conclude that the
record otherwise supports Pierce's conclusion from the field sobriety tests
that Laufenberg was under the influence.
Laufenberg
does not claim that Pierce incorrectly administered the other field sobriety
tests. Pierce described at length the
results of these tests. He also
testified that the preliminary breath test showed that her blood alcohol
content was .18. On the basis of these
observations, he concluded:
"[Laufenberg] did very poorly in the field sobriety tests, and the
PBT confirmed my opinion of the field sobriety tests."
Increasingly,
defendants charged with operating a vehicle while under the influence seem to
believe that if one of the investigative tests used by police departments to
determine whether an operator is under the influence is not performed or is
performed inaccurately, the operator is entitled to dismissal of a charge for
operating under the influence. However,
the result of any test used by the police to determine whether an operator is
intoxicated is merely evidence. For
example, the weight of the most commonly used test for intoxication, a chemical
test under § 885.235, Stats.,
is determined according to the percent of alcohol in the operator's blood or
breath as shown by the test but the result of any such test is, at most, prima
facie evidence. Even if this court
gives the HGN test no weight, Officer Pierce's testimony as to his personal
observations of Laufenberg and the results of the field sobriety tests,
including the PBT, fully support Laufenberg's conviction.
We
now turn to the question whether Officer Pierce had sufficient evidence to test
Laufenberg's possible intoxication.
First, police action must be judged on the basis of its
intrusiveness. See Terry
v. Ohio, 392 U.S. 1, 17 (1968).
Laufenberg argues that the only circumstance exciting Officer Pierce's
suspicion was the odor of intoxicants from Laufenberg's breath, and that is not
enough to constitute "reasonable suspicion" under State v.
Swanson, 164 Wis.2d 437, 453 n.6, 475 N.W.2d 148, 155 (1991). In Swanson, the supreme court
cited three indicia of defendant's behavior which justified a reasonable
suspicion that the defendant was operating under the influence of an
intoxicant: first, erratic driving;
second, the odor of intoxicants; and third, the approximate time of the
incident. Id. The court said: "Taken together, these indicia form a basis for a
reasonable suspicion that Swanson was driving while intoxicated." Id. (emphasis added). See State v. Seibel,
163 Wis.2d 164, 183, 471 N.W.2d 226, 235 (1991), where we held that similar
factors add up to a reasonable suspicion but not probable cause.
Here,
Laufenberg was not operating her vehicle in an erratic manner; she was,
however, exceeding the speed limit by fifteen miles per hour and was uncertain
as to her speed. She was also chewing
gum, which Officer Pierce testified frequently concealed the ingestion of
alcoholic beverages. Finally,
Laufenberg admitted she had been to a party at which there was drinking and
that she had drunk three margaritas. We
conclude that these factors, taken together, were sufficient to excite in
Officer Pierce a reasonable suspicion that Laufenberg was under the influence
and to justify further investigation.
For
these reasons, we affirm the judgment.
By
the Court.—Judgment affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.