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Speeding, “couple beers,” glassy eyes, odor of alcohol, 2:30 a.m., reasonable suspicion

State v. Neil R. Hebert, 2016AP2168, 12/19/17, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)

That’s the long and short of it. The circuit court held the officer, who had pulled Hebert over for speeding,  unlawfully extended the stop to investigate an OWI, but the court of appeals reverses. 

We conclude Desprez validly extended the stop in order to investigate a possible OWI offense. Desprez stopped Hebert’s vehicle at 2:30 a.m. It is common knowledge that incidents of OWI occur more often around 2:30 a.m. or “bar time.” See Post, 301 Wis. 2d 1, ¶36; WIS. STAT. § 125.32(3). Desprez noted the interior of the vehicle smelled of intoxicants. When questioned, Hebert admitted he had been drinking alcohol that night, thus allowing for a reasonable inference that he was a potential source of the odor. Importantly, Desprez further observed Hebert’s eyes were glassy, which is a possible physical cue of impairment. See, e.g., State v. Haynes, 2001 WI App 266, ¶12, 248 Wis. 2d 724, 638 N.W.2d 82. Hebert had also been speeding. See State v. Valenti, No. 2016AP662, unpublished slip op., ¶10 (WI App Sept. 7, 2016) (speeding may be relevant to suspicion of intoxication under totality of the circumstances). Any one factor may be insufficient to give rise to reasonable suspicion if considered alone, see Waldner, 206 Wis. 2d at 58, and they even may not reach probable cause to arrest when considered together, see Eason, 245 Wis. 2d 206, ¶19 (reasonable suspicion is a less demanding standard than probable cause). However, when the factors are evaluated as a whole, a reasonable inference arises that Hebert was intoxicated.

In disputing this conclusion, Hebert notes that his eyes—while glassy—were not bloodshot, he did not slur his speech, and he did not fumble around when retrieving his driver’s license and giving it to Desprez. The absence of these facts is not controlling. “Suspicious conduct by its very nature is ambiguous, and the principal function of the investigative stop is to quickly resolve that ambiguity.” Waldner, 206 Wis. 2d at 60. Given Desprez’s observations, he was not required to credit Hebert’s admission of having consumed only “a couple” of beers, to assume the alcohol smell came only from the passenger, or to allow Hebert to leave without confirming or dispelling any suspicion that Hebert was committing an OWI offense. See id. at 60-61.

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