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Extension of stop, FSTs okay, no reversal for error of law regarding probable cause for PBT

State v. Bradley E. Ammann, 2017AP866-CR, 12/7/17, District 4 (1-judge opinion, ineligible for publication); case activity (including briefs)

A state trooper stopped Ammann for speeding as he and his wife were driving home from a wedding reception. The trooper asked Amman to exit the car and then smelled intoxicants on him. This led to field sobriety tests and then a preliminary breath test showing that Ammann had an .068 alcohol concentration. He almost escaped with a mere citation for speeding except the trooper had to go and check his driving record.

Due to prior convictions, Ammann could not legally operate a vehicle with an alcohol concentration of more than .02, so he was arrested for driving with a PAC. He moved to suppress for lack of reasonable suspicion to extend the stop or conduct FSTs and for lack of probable cause to administer a PBT. He lost both arguments.

Reasonable suspicion for extension and FSTs:

¶14 Ammann attacks the actions of Trooper Hill, first, by contending that the traffic stop was extended in violation of Ammann’s constitutional rights because Ammann was asked to exit the vehicle. However, a law enforcement officer may order a driver to exit the vehicle incident to a lawful traffic stop without violating the Fourth Amendment. State v. Johnson, 2007 WI 32, ¶23, 299 Wis. 2d 675, 729 N.W.2d 182 (citing Pennsylvania v. Mimms, 434 U.S. 106, 98 S. Ct. 330, 54 L.Ed.2d 331 (1977), and Michigan v. Long, 463 U.S. 1032, 103 S. Ct. 3469, 77 L.Ed.2d 1201 (1983)). Trooper Hill did not unreasonably extend the stop when he asked Ammann to exit the vehicle.

¶16 Moreover, Ammann mischaracterizes the nature of the reasonable suspicion analysis. Reasonable suspicion exists even if there could be an alternative, innocent explanation for a factor, and factors are considered in the aggregate. Hogan, 364 Wis. 2d 167, ¶¶36-37. Accordingly, the smell of intoxicants combined with Ammann’s admission that he had been drinking at a wedding reception (along with his amendment that the “one drink” may have had a large amount of alcohol in it), and that he was driving almost twenty miles per hour over the speed limit, all contribute to reasonable suspicion that he was operating his vehicle while intoxicated. See, e.g. State v. Krause, 168 Wis. 2d 578, 587-88, 484 N.W.2d 347 (Ct. App. 1992); State v. Valenti, 2016 WI App 80, unpublished slip op. ¶10 (WI App. Sept. 7, 2016). Therefore, I conclude reasonable suspicion existed for Trooper Hill to extend the traffic stop to have Ammann to perform field sobriety tests.

Probable cause for PBT: The circuit court denied suppression of the PBT results because various facts gave the trooper “reasonable suspicion that he could then ask for the PBT.” Opinion ¶19 (emphasis added).The problem is, the trooper needed probable cause. No worries. The court of appeals concluded that the trial court just misspoke because it had mentioned the correct standard earlier in the hearing. Opinion ¶21. Also, the facts supported a probable cause finding:

¶23 Ammann exhibited several indicators of intoxication. Trooper Hill smelled an odor of intoxicants on Ammann, both in his vehicle and when he exited the vehicle. Ammann admitted to drinking at a wedding reception earlier in the evening. Though he initially stated he had had one drink, he later confessed it may have been “a stiff one or a double.” Ammann subsequently had trouble with some of the field sobriety tests, including with the alphabet test, the HGN test, and the walk and turn test. All these factors gave Trooper Hill probable cause to believe that Ammann may have been operating his vehicle while intoxicated. Therefore, Trooper Hill properly administered the preliminary breath test.

 

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