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Broken tail light, glassy eyes, and a wee wobble amount to probable cause for administering preliminary breath test

State v. Ross Timothy Litke, 2013AP1606-CR, 3/11/14, District 1 (1-judge opinion, ineligible for publication); case activity

This was a potentially interesting Daubert case.  The police stopped the car Litke was driving because a tail light was out.  The officer noticed Litke’s bloodshot eyes and asked if he had been drinking.  “Yes, a few beers,” Litke replied.  The officer thus conducted 3 field sobriety tests:  the Horizontal Gaze Nystagmus test (which Litke flunked), the Walk and Turn test (which he passed), and the  One Leg Stand test (which he performed so-so).  The officer concluded that she had probable cause to administer a PBT, which confirmed a .149 blood alcohol level and led to Litke’s arrest.

Litke challenged the HGN evidence arguing that the results were unreliable and the officer who testified about them lacked the scientific knowledge or training required of an expert under § 907.02 or Daubert. The State stipulated that the officer didn’t meet Daubert‘s test, so the court excluded the testimony, and held that the remaining evidence did not justify the administration of a PBT.

On appeal the State argued that the court should have considered the HGN test results because the rules of evidence, including § 907.02 and Daubert, do not apply in suppression hearings.  (If you’re thinking “waiver,” well so was Litke’s lawyer! Check out his brief.) The court of appeals totally ducked the issue and held, essentially, who needs the HGN test?!

This court concludes that Officer Zeise had the requisite probable cause even if the evidence resulting from the HGN test is disregarded . . . Several facts found by the trial court support this conclusion.  First, Officer Zeise observed Litke driving a car late on a Friday night without the required illuminated headlights.  Second, Litke did not initially look at Officer Zeise, and when he finally did so, his eyes were bloodshot and glassy.  Third, Litke admitted to consuming alcohol at a fish fry about several hours before the stop and again while at a bowling alley.  Fourth, Litke, in performing the One-Leg-Stand test, wobbled slightly and raised his arms from his side in order to keep his balance.  When analyzed in the context of the entire record—including the evidence not supporting probable cause—and Officer Zeise’s years of experience, including the fact that she had completed more than 1200 traffic stops and had conducted between forty and fifty field sobriety tests, see Kutz, 267 Wis. 2d 531, ¶12, the aforementioned facts show that Officer Zeise had probable cause to administer a preliminary breath test.    Slip op. at ¶17.

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