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COA affirms probable cause finding in alcohol test refusal case

State v. Edward R. Gasse, 2021AP484, 9/29/2021, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)

Gasse arrived at the police station shortly after midnight; officers had observed him about 80 minutes prior at his residence and believed him to be drunk. He initially said he’d driven there but later changed his story; video surveillance revealed that he had, in fact, driven. After some limited field sobriety testing, the officer at the station arrested him and he refused to consent to chemical testing. He appeals the circuit court’s determination that there was probable cause for the arrest and thus that the refusal citation was lawful.

The court of appeals says there was probable cause:

At the time he arrested Gasse, Farnsworth was aware that (1) approximately an hour and twenty minutes earlier, when other officers were at Gasse’s residence, Gasse appeared to be intoxicated; (2) at the department, Farnsworth himself observed Gasse to have “droopy” eyelids, “glassy, blood shot eyes,” and “slowed and slurred” speech; (3) when asked if he had consumed any alcohol, Gasse “stated that he had about one or two beers at about five to six p.m.,” exhibiting consciousness of guilt by lying to Farnsworth about and minimizing the amount of alcohol he had consumed2— i.e., that Gasse knew he had consumed an amount of alcohol that might make his operation of his vehicle at that time illegal and did not want Farnsworth to discover this; (4) Gasse had further exhibited consciousness of guilt in first acknowledging to Farnsworth that he had driven to the department, which was confirmed by Farnsworth’s observation of video surveillance footage at the department, but later changing his story to a “neighbor drove [me]”; (5) Farnsworth observed “lack of smooth pursuit, nystagmus prior to 45 degrees, and nystagmus on the onset of maximum deviation”; and (6) Gasse further displayed consciousness of guilt by refusing to cooperate with a preliminary breath test, see State v. Hale, No. 2018AP812, unpublished slip op. ¶10 (WI App Nov. 8, 2018) (“A person’s refusal to submit to a preliminary breath screening test or a field sobriety test is relevant as ‘evidence of consciousness of guilt’ and may be considered in finding probable cause to arrest a person for operating a motor vehicle while under the influence of an intoxicant.” (citing State v. Mallick, 210 Wis. 2d 427, 434, 565 N.W.2d 245 (Ct. App. 1997))). Furthermore, Farnsworth made his observations around 1:30 a.m. on a Friday night/Saturday morning, a time of day and day of the week that lends to the suspicion that Gasse may have been drinking intoxicants in an amount greater than one might consume at other times of day or on other days of the week. See State v. Post, 2007 WI 60, ¶36, 301 Wis. 2d 1, 733 N.W.2d 634 (time of night “does lend some further credence” to an officer’s suspicion of intoxicated driving); see also State v. Lange, 2009 WI 49, ¶32, 317 Wis. 2d 383, 766 N.W.2d 551 (concluding the time of day is relevant for an OWI probable cause determination and “[i]t is a matter of common knowledge that people tend to drink during the weekend when they do not have to go to work the following morning”).

(¶10).

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