|
COURT OF
APPEALS DECISION DATED AND
RELEASED February
29, 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. 95-2706
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
COUNTY
OF DANE,
Plaintiff-Respondent,
v.
SHARON
R. CHAMBERLAIN,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Dane County: STUART A. SCHWARTZ, Judge.
Affirmed.
VERGERONT,
J.[1] Sharon
Chamberlain appeals from a judgment convicting her of operating a motor vehicle
while under the influence of an intoxicant and operating a motor vehicle the
wrong way on a divided highway, contrary to § 69.01 Dane County Ordinances. On appeal she contends that: (1) her detention was unlawful because
the field sobriety tests administered by the detaining officer were not shown
to be related to the reasons for which she was detained, and (2) there was
no probable cause to arrest because the tests administered were not shown to be
probative. We conclude neither argument
has merit and we therefore affirm.
At
the hearing on Chamberlain's motion to suppress, Dale Anderson was the only witness, and he was not cross-examined
by Chamberlain's counsel. Anderson is a
deputy sheriff employed by the Dane County sheriff's office and has been for
seven years. He has attended the police
academy and a twenty-four hour course, the Standardized Field Sobriety School,
which provides training in performing tests to identify persons who are under
the influence of intoxicants. He has
also attended a one-week field sobriety instructor course at the Wisconsin
State Patrol Academy, and, as a result, is a certified field sobriety
instructor, one of two for the Dane County sheriff's department.
At
9:48 p.m. on Saturday, September 24, 1994, Anderson was called to an accident
on State Highway 113 at County Highway M.
Two cars had collided head-on in the north-bound passing lane of the
divided highway. The car driven by
Chamberlain was going the wrong way.
Chamberlain told Anderson that she had just left the Mariner's
Restaurant and was going into Madison and did not know how she got in the lane
she was in. Anderson could smell an
odor of intoxicants from Chamberlain.
Anderson observed damage to the car that would prevent its operation or
safe operation, specifically, the front fender of the car was pushed into the
wheel, preventing the wheel from turning.
When Anderson told Chamberlain she would need a wrecker to remove her
car, she asked why she could not drive it home. Anderson told Chamberlain that since he could smell intoxicants,
he was going to perform field sobriety tests.
Anderson
performed a number of standardized field sobriety tests on Chamberlain, which
he had experience in giving and had provided instruction on. He first performed the horizontal gaze
nystagmus test, which determines whether eye movement is jerky when the eyes
are following an object. He had been
trained to perform this test. He asked
Chamberlain if the light rain bothered her and she said no. Anderson determined Chamberlain was not
wearing contacts. He had her perform
the test in a way to keep the light rain from affecting her eyes, as he had
been trained. He described how he administered
the test. Out of a possible six
"clues" showing jerky eye movement, Chamberlain's performance of the
test showed five clues.
The
second test was the walk-and-turn test, which Anderson demonstrated and
explained to Chamberlain. Part of this
test involves testing for divided attention, a psycho-physical task that
requires the person being tested to perform physical and mental tasks at the
same time, such as watching the instructions, comprehending the instructions,
processing information and doing physically what has been shown. This simulates the tasks involved in driving
a car safely. Chamberlain was unable,
on the walk-and-turn test, to remain in the position she was asked to remain in
while watching Anderson demonstrate the test.
There were a total of four other instances in performing the test in
which she did not do as instructed, resulting in five clues. Based on Anderson's training, "the
criteria for that test is two clues."
Based
on his experience in administering these tests in the past, Anderson is able to
begin to form an opinion as to the state of sobriety of the person taking the
tests.
The
third test was the one-leg stand test, which also has a divided attention
component. In his testimony, Anderson
described the test, his instructions and his demonstration. This test involves lifting one foot
approximately six inches off the ground and counting from 1,001 to 1,030 with
arms down at the person's sides.
Chamberlain lifted her left foot from the ground for approximately two
seconds, did not count, and then said she could not do that test even if she
were sober. She then said she would try
again, raised her left foot, immediately began hopping, and put her foot down,
saying, "No, I guess I can't."
Anderson considered that she was unable to complete this test.
Anderson
then explained the finger dexterity test to Chamberlain and asked her to
perform it. Chamberlain looked at her
hand and moved her thumb. She was
unable to take her thumb and touch her fingers in the order Anderson instructed
her. She attempted to perform the test
for about thirty seconds.
Based
on the fact that Chamberlain was driving the wrong way on the highway and
struck another vehicle, the odor of intoxicants on her, her performance on the
tests, and the manner in which she conducted herself when Anderson spoke to
her, Anderson formed the opinion that Chamberlain was impaired by intoxicants,
and he placed her under arrest.
The
trial court concluded that the odor of intoxicants, coupled with the circumstances
of the accident, were grounds for a reasonable suspicion that Chamberlain had
been driving under the influence of intoxicants sufficient to conduct further
inquiry; and that, after each step of inquiry, there was sufficient
confirmation to continue, leading to probable cause for arrest.
In
reviewing a trial court's denial of a motion to suppress evidence, we must
uphold the court's findings of fact unless they are against the great weight
and clear preponderance of the evidence.
See State v. Whitrock, 161 Wis.2d 960, 973, 468
N.W.2d 696, 701 (1991). However,
whether a search and seizure meets constitutional standards is a question of
law, which we review de novo. State
v. Richardson, 156 Wis.2d 128, 137-38, 456 N.W.2d 830, 833 (1990).
To
execute a valid investigatory stop consistent with the Fourth Amendment
prohibition against unreasonable searches and seizures, a law enforcement
officer must reasonably suspect, in light of his or her experience, that some
kind of criminal activity has taken or is taking place. Richardson, 156 Wis.2d at 139,
456 N.W.2d at 834. An investigatory
stop is permissible when the person's conduct may constitute only a civil
forfeiture. State v. Krier,
165 Wis.2d 673, 678, 478 N.W.2d 63, 65-66 (Ct. App. 1991). Upon stopping the individual, the officer
may make reasonable inquiries to dispel or confirm the suspicions that
justified the stop. Terry v. Ohio,
392 U.S. 1, 22 (1968).
In
assessing whether there exists reasonable suspicion for a particular stop, we
must consider all the specific and articulable facts, taken together with the
rational inferences from those facts. State
v. Dunn, 158 Wis.2d 138, 146, 462 N.W.2d 538, 541 (Ct. App. 1990). The question of what constitutes reasonable
suspicion is a common sense test: under
all the facts and circumstances present, what would a reasonable police officer
reasonably suspect in light of his or her training and experience. State v. Jackson, 147 Wis.2d
824, 834, 434 N.W.2d 386, 390 (1989).
Whether
undisputed facts constitute probable cause is a question of law that we review
de novo. State v. Babbitt,
188 Wis.2d 349, 356, 525 N.W.2d 102, 104 (Ct. App. 1994). In determining whether probable cause
exists, we look to the totality of the circumstances. Id. The
inquiry is whether the arresting officer's knowledge at the time of arrest
would lead a reasonable police officer to believe that the defendant was
operating a motor vehicle while under the influence of an intoxicant. Id.
Chamberlain's
argument is somewhat obscure. Both the
challenge to the detention and to the arrest appear to be premised on the
assumption that without scientific testimony on the validity of the field
sobriety tests as an indicator of impaired ability to drive, the field sobriety
tests are outside the scope of a lawful detention and the results observed by
the officer may not be a basis for probable cause to arrest for driving while
under the influence. Chamberlain cites
no authority for this position and ignores what Anderson's testimony does
establish.
Anderson
had training and experience in administering the field sobriety tests and
observing the results. He was familiar
with how people look and act when they are under the influence of intoxicants. Although Anderson did not testify to the
scientific basis for the tests, he did carefully explain what he told
Chamberlain to do, what he showed her, and what Chamberlain said or did in
response. Anderson's training and
experience qualified him to testify to her behavior and the conclusions he drew
from her behavior. Chamberlain did not
object to Anderson's testimony concerning the tests he administered or the
results he observed.
We
conclude, as did the trial court, that the circumstances of the accident, the
strong odor of alcohol on Chamberlain, and her inability to explain how she got
on the wrong side of a divided highway constituted a reasonable suspicion of
driving under the influence and justified further inquiry. We reject Chamberlain's argument that
administering the field sobriety tests transformed the lawful detention into an
unlawful one solely because Anderson did not establish the scientific validity
of the tests. Asking Chamberlain to
perform certain actions so that he could observe her ability to perform
physical tasks and to understand and follow instructions and demonstrations is
a proper continuation of the inquiry.
At
the completion of the field sobriety tests, Anderson did have probable cause to
believe that Chamberlain had been driving while intoxicated. It was reasonable for him to infer that
Chamberlain's inability to follow his instructions and to stand, walk and move
her fingers, as he directed and demonstrated, was due to intoxication. Under these circumstances, scientific
testimony on the validity of the tests was not necessary to establish probable
cause.
By
the Court.—Judgment affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.