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COA finds ample probable cause for PBT

State v. Jacqueline M. Datka, 2017AP1886, 4/18/18, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)

Datka challenges the officer’s decision to ask for a preliminary breath test after she was stopped on suspicion of OWI.

She argues that various factors militated against the conclusion that she was drunk, including that she exhibited only a “light” odor of intoxicants, wasn’t slurring, and performed middlingly on a battery of field sobriety tests, and also that it was daytime. The court of appeals isn’t convinced.

While Datka appropriately highlights the circumstances in her favor, she fails to address, much less refute the impact of, the totality of circumstances upon which Coats relied to make the request. Datka overlooks, most significantly, the eyewitness report of J.C. J.C. saw driving behavior that can fairly be described as reckless and dangerous. Datka almost struck J.C., stopped well short of stop signs and then rapidly screeched through them, failed to maintain her lane, and nearly struck a second car. Noteworthy are the facts that J.C. described the vehicle and license plate—ensuring that the officers stopped the correct vehicle— and not only gave her name, but also met and spoke with Coats—making her observations far more reliable than an anonymous tip. More striking still is that, as reported by J.C., the perilous nature of Datka’s driving was of several kinds: near collisions with other vehicles, misjudging of stopping distances, gratuitous and rapid accelerations, and an inability or indifference to drive or park within marked lines.

When the evidence of Datka’s dangerous driving was subsequently corroborated and strengthened by her halting demeanor, admitted drinking, and spotty, at best, performance on the sobriety tests, probable cause plainly existed to believe that Datka had driven under the influence. We focus on the following: Datka parked her vehicle straddling two spaces; her glossy eyes, slow speech, and sluggish movement caused Steger to believe that she was under the influence of something; in addition to her slow speech and difficulty moving, Coats noted her wet shirt and admission to drinking; of six sobriety tests, Datka succeeded fully on only the alphabet test; to varying degrees, she stumbled during the other five, exhibiting two clues on the HGN test, failing to follow simple instructions on the walk-and-turn and countdown tests, falling markedly short of holding her one-leg stance, and misjudging the length of thirty seconds by almost half (which Coats considered “pretty extreme”).

(¶¶19-20).

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