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“Mixed bag” of facts still enough for probable cause to arrest

State v. Terry Sanders, 2017AP636-CR, District 3, 1/9/18 (one-judge decision; ineligible for publication); case activity (including briefs)

Sanders challenges his arrest for OWI, saying the officer lacked probable cause based on a “mixed bag” of facts that included inconclusive field sobriety tests and things an officer “would likely see [being done] by day by sober folks.” (¶9). The court of appeals does not agree.

¶12     Taken together, we conclude the facts create a common-sense inference that Sanders was probably intoxicated and thus could not drive safely. First, Sanders failed to stop his vehicle where required prior to entering an intersection and had difficulty dividing his attention between [Officer] Bagley’s questioning and retrieving his insurance information. Second, Bagley smelled a strong odor of intoxicants in Sanders’ vehicle and continued to smell the odor on Sanders after he stepped out of it. Third, the time of arrest was 2:30 a.m., and a bar was near the intersection. See [State v.] Lange, [2009 WI 49,]  317 Wis. 2d 383, ¶32[, 766 N.W.2d 551] (time of night is relevant to probable cause to arrest for OWI); Wis. Stat. § 125.32(3). Fourth, Sanders exhibited clues of intoxication during the field sobriety tests and had an “argumentative” demeanor throughout the encounter. In addition, Bagley had nearly five years of experience as an OWI investigator. While Bagley’s conclusion that Sanders was intoxicated is not determinative, it is relevant to determining whether probable cause existed. See State v. Wille, 185 Wis. 2d 673, 683, 518 N.W.2d 325 (Ct. App. 1994).

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