State v. Tunis Jay LeFever, 2019AP702-CR, District 2, 10/30/19, (1-judge opinion, ineligible for publication); case activity (including briefs)
An officer stopped LeFever for speeding, noticed that he had bloodshot eyes, and detected a faint odor of alcohol but wasn’t sure of the source. He asked LeFever to complete field sobriety tests. The officer noted indicators of impairment on some of the tests and LeFever’s bright green tongue. A PBT test did not detect the presence of alcohol in LeFever’s system. The officer suspected marijuana.
So he falsely told the passenger of the car that LeFever admitted to smoking marijuana, and the passenger confirmed the fact. The officer immediately placed LeFever under arrest and obtained a warranty for a blood draw, which revealed the presence of THC.
LeFever did not contest his stop for speeding. He argued that the officer lacked reasonable suspicion to extend the stop. The circuit court held that the officer had reasonable suspicion to extend the stop “to search for the truth.” Opinion, ¶5. The court of appeals nixed that rationale. Id, n.2. But it affirmed based on the totality of the circumstances:
¶11 When looking at the totality of the circumstances, we conclude that the odor of intoxicants and bloodshot eyes, in addition to the speeding and the time of night, created reasonable suspicion that LaFever could be driving under the influence and was more than sufficient to extend the stop for speeding to investigate whether LaFever was operating while under the influence of intoxicants. See State v. Lange, 2009 WI 49, ¶32, 317 Wis. 2d 383, 766 N.W.2d 551 (time of night relevant when combined with additional factors); Post, 301 Wis. 2d 1, ¶36 (time of night “significant” especially at “bar time”); City of West Bend v. Wilkens, 2005 WI App 36, ¶19, 278 Wis. 2d 643, 693 N.W.2d 324 (speeding is a factor we consider). After properly extending the stop, Vis observed additional suspicious factors that, while ruling out intoxication, did point to use of a controlled substance, to wit: the Romberg balance test, the green tongue, and the statement from the passenger that they had smoked marijuana. These factors were sufficient to provide the probable cause necessary to arrest LaFever for operating with a detectable amount of a restricted controlled substance in his blood. We see no error.