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Deputy had reasonable suspicion to extend stop based on driver’s odor of alcohol and glassy eyes

State v. Misty Dawn Donough, 2017AP2000-CR, 7/10/18, District 1 (1-judge opinion; ineligible for publication), case activity (including briefs)

Deputy Moldenhauer saw Donough’s car disabled on an interstate and stopped to help. Moldenhauer repeatedly interacted with Donough, told her to get into the car, put it in neutral, and steer as the car was pushed on to a side street. Then she approached Donough for her license and insurance and saw her glassy eyes and detected the odor of alcohol.

Moldenhauer gave all of this information to her training officer, who was sitting in the squad car, and was told to return to Donough’s car to collect more information. Moldenhauer again observed Donough’s glassy eyes and smelled alcohol on her and thus conducted field sobriety tests.

Donough did not contest the lawfulness of the stop because Moldenhauer was acting in a community caretaker capacity.  Instead, Donough argued that Moldenhauer unlawfully extended the stop when she returned to the car to collect more information.  Rejecting Donough’s view of the facts, the court of appeals held:

¶11 Donough’s argument ignores the facts in the record.  According to Moldenhauer’s testimony, Moldenhauer only came into close contact with Donough after Moldenhauer approached Donough’s vehicle to obtain Donough’s driver’s license and insurance information.  Prior to approaching Donough’s vehicle, Moldenhauer and Donough only interacted with each other at a distance.  It was only after pushing Donough’s car off of the interstate that Moldenhauer approached the vehicle and came into close enough contact with Donough to notice the smell of alcohol and Donough’s glassy eyes.  At that point, Moldenhauer told her training officer that Donough appeared intoxicated and the officer suggested that Moldenhauer return to the vehicle to obtain additional information.  Moldenhauer approached Donough again and again noticed Donough’s glassy eyes as well as the smell of alcohol on Donough herself.  Contrary to Donough’s contention, Moldenhauer stated that she smelled alcohol emanating from Donough—not simply from Donough’s vehicle.

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