The circuit court’s refusal finding under § 343.305(9) is upheld because the officer had probable cause to arrest Kowalis for operating while intoxicated.
Kowalis was found in the driver’s seat of a car parked across a sidewalk and partly on the grass of the terrace between the sidewalk and the street. (¶2). Though the car was not running, the keys were in the ignition, the radio was playing loudly, and the gear shift lever was in reverse. (¶2). Kowalis “appeared to be passed out” and with both feet outside the car. (¶2). It took several taps on his leg to get Kowalis to respond. (¶2). There was a strong odor of intoxicants on Kowalis’ breath, his speech was slurred, and his eyes were bloodshot and glassy, and he had trouble walking on his own. (¶¶3, 4). When the officer asked Kowalis where he was headed to or coming from, Kowalis initially said he had been at home all day, but later admitted he had been at Happy Valley tavern. (¶3). The officer asked Kowalis “if he had been drinking at all this evening,” and Kowalis said “yes,” he had “a couple.” (¶3). Kowalis’ refused to cooperate with the requested FSTs. (¶5). These facts were “sufficient to lead a reasonable officer to believe that guilt [was] more than a possibility.” County of Dane v. Sharpee, 154 Wis. 2d 515, 518, 453 N.W.2d 508 (Ct. App. 1990) (citation omitted). (¶¶8-12).