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Facts & circumstances supported continued detention for field sobriety testing

State v. Cynthia J. Popp, 2016AP431-CR, District 4, 7/7/16 (one-judge decision; ineligible for publication); case activity (including briefs)

There was reasonable suspicion to continue detaining Popp for field sobriety testing even though the officer didn’t smell alcohol on her and told dispatch and a back-up officer he wasn’t sure what caused the poor driving he’d observed.

Popp offered an innocent explanation for her erratic driving (she said she was going to the hospital to visit her husband, who faced a life-or-death situation), but the officer wasn’t required to accept that explanation, State v. Hogan, 2015 WI 76, ¶36, 364 Wis. 2d 167, 868 N.W.2d, and other information made impaired driving a real possibility: She didn’t stop right away after the officer activated his lights, and when she did stop she was in a left-turn lane; she admitted to having had a glass of wine; and she had three prior OWIs, making her subject to a .02 PAC. (¶¶5-8, 15-16, 18). Thus, the officer’s “admission” that he wasn’t sure she was impaired is not determinative, as the totality of the facts and circumstances provided an objective basis to investigate further whether Popp was impaired, State v. Post, 2007 WI 60, ¶13, 301 Wis. 2d 1, 733 N.W.2d 634, and continuing to detain her for FSTs was reasonable. (¶19).

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