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COA finds reasonable suspicion for drug investigation, FSTs; probable cause for arrest

County of Dunn v. Cashe L. Newville, 2018AP1167, 8/6/19, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)

Newville was pulled over by a sheriff’s deputy who observed that, among other things, his license plate lamps weren’t working. An arrest on suspicion of operating under the influence of methamphetamine followed. The court of appeals blesses every step in the investigation that led to that arrest.

First, the stop–Newville concedes on appeal that his faulty lamps gave reasonable suspicion to pull him over. (¶17).

He argues, though, that he deputy had no basis to continue the stop to conduct an investigation for driving under the influence. The court disagrees, relying on three facts: Newville was driving between 40 and 47 miles per hour in a 55-mph zone; he “repeatedly” crossed the unmarked center of the road; and it was 10:40 p.m. (¶¶18-20).

Seems a little thin, though we don’t know just how egregious this center-crossing was. There was a squad video reviewed by the court, but it doesn’t describe just what it saw.

Newville also argues there was no reasonable suspicion to make him perform field sobriety tests, but the court disagrees based on the above-cited three facts plus the fact that the deputy saw a “torch lighter” apparently associated with meth use in Newville’s car, and the fact that he admitted to having used meth two months earlier. (¶23).

One other thing happened before those FSTs–the deputy asked Newville to stick his tongue out and observed a yellow film on it that, it seems, indicates recent meth use. Newville asserts this was an illegal search, but the court of appeals disregards this argument because it finds enough suspicion for the ensuing steps leading to the arrest without considering the yellow tongue. The court says neither party developed a sufficient on this score. (¶25).

Neville’s next two claims–that the deputy lacked probable cause to request a PBT and, ultimately, to arrest him–depend on quibbles with the use and interpretation of various standard and non-standard field sobriety test, including the “Romberg test.” (¶10).

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