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OWI — probable cause to arrest without field sobriety tests

State v. Scott E. Bartelt, 2013AP110-CR, District 2, 8/14/13; court of appeals decision (1-judge; ineligible for publication); case activity

¶1       …. During his investigation of a bar fight, a village of Butler police officer came to the conclusion that Bartelt should not drive home and offered to give him a ride. Bartelt declined the ride, told the officer he would walk home, and walked away. Not twenty minutes later, back on patrol, the officer saw Bartelt drive by in his truck. Bartelt attempted to flee but was ultimately arrested.

¶2        On appeal Bartelt argues that the officer lacked probable cause for the arrest, primarily because the officer did not conduct field sobriety tests. We conclude that in view of the totality of the circumstances, it was quite obvious to the officer that Bartelt was intoxicated, without any need to conduct field sobriety tests. The officer had ample probable cause for the arrest. …

In addition to the officer’s personal observations of Bartelt as they discussed the bar fight (“Bartelt’s speech was slow, his body was swaying back and forth, he had a strong odor of intoxicants on his breath, and his eyes were red and glassy” (¶¶4, 13)),  the court notes the time and location of the officer’s contact with Bartelt (1:08 a.m. in a tavern parking lot (¶¶3, 14)), the statements of the bartender and other patrons that Bartelt was intoxicated (¶¶6, 14), and Bartelt’s attempt to flee, which showed consciousness of guilt (¶16). Nor did the passage of time between the officer’s observations and Bartelt’s arrest dissipate the probable cause, for the arrest occurred less than half an hour later. (¶15). Given these facts, “field sobriety tests would have been superfluous” (¶17) and Bartelt is wrong to argue FSTs are needed to establish probable cause unless there was an accident resulting in injuries to the defendant that made it impractical to conduct the tests:

¶18      …. Just as there is no case requiring field sobriety tests in all cases as a prerequisite for establishing probable cause in OWI cases, there is no case holding that field sobriety tests are required unless there is an accident or the suspect has injuries making it difficult to test her or him.

¶19      Instead, the standard for measuring probable cause in OWI cases is the familiar, fact-based “totality of the circumstances” test for probable cause: we look at all of the relevant facts and determine whether a reasonable officer with knowledge of those facts would have probable cause to believe the defendant was driving while intoxicated. Depending upon the circumstances, in “some cases, the field sobriety tests may be necessary to establish probable cause; in other cases, they may not.” [State v.Kasian, 207 Wis. 2d [611,] 622[, 558 N.W.2d 687 (Ct. App. 1996)].

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