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OWI — probable cause to arrest despite lack of field sobriety tests

State v. Lewis Allen Stokes, 2012AP2621-CR, District 1, 10/15/13; court of appeals opinion (1-judge; ineligible for publication); case activity

Probable cause to arrest for OWI was established based on: police observations of Stokes speeding and weaving in and out of traffic without signaling at 11:00 p.m.; Stokes’s slurred speech and the strong odor of alcohol on his breath; and Stokes’s argumentative and combative attitude toward the police. (¶¶4-5, 10). The lack of facts that were present in other cases where probable cause was found does not matter here (¶11); in particular, the lack of a positive field sobriety test does not mean probable cause was lacking, as FSTs are not a prerequisite for establishing probable cause. (¶12). “The question when assessing probable cause is not what additional information the police did not have, but whether the information the police did have was enough to meet the low standard of proof necessary to justify an arrest.” (¶13).

As to FSTs, see, e.g., State v. Kasian, 207 Wis. 2d 611, 622, 558 N.W.2d 687 (Ct. App. 1996) (because the question of probable cause is assessed on a case-by-case basis, “[i]n some cases, the field sobriety tests may be necessary to establish probable cause; in other cases, they may not.”).

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