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State v. Lee Anthony Batt, 2010 WI App 155

court of appeals decision (recommended for publication); for Batt: Chad A. Lanning; BiC; Resp.; Reply

OWI – Implied Consent Law – § 343.305(5)(a) Testing

Construing State v. Stary, 187 Wis. 2d 266, 522 N.W.2d 32 (Ct. App. 1994), the court concludes that the Implied Consent law affords the driver the right to choose testing administered by the law enforcement agency at no expense to the driver, or reasonable opportunity to obtain an alternate test at the driver’s own expense.

¶11      We interpret Stary’s “three obligations” to mean, in context, that when law enforcement invokes Wis. Stat. § 343.305 to obtain a primary test, it must (1) provide the primary test of its choice at its own expense; (2) provide an opportunity for a second test of its choice at agency expense; and (3) if the second test is refused by the suspect in favor of one at his or her own expense, it must provide a reasonable opportunity for a test of the suspect’s choice at the suspect’s expense.  In other words, in any given case, law enforcement may only need to pay for the primary test and provide an alternate test at agency expense.  However, because the choice of who pays for and arranges the alternate test is the defendant’s, law enforcement must be prepared to offer either the second test at agency expense or a reasonable opportunity for a test at the suspect’s expense, in addition to paying for the first test—hence the term “three obligations” that was used by the Stary court.[4]  See Stary, 187 Wis. 2d at 270.

Based on facts found by the trial court, the court of appeals holds that the police complied with this procedure: Batt was offered, and accepted, an alternate law enforcement test, hence there was no obligation to provide an opportunity for testing at his own expense, ¶¶13-15.

Traffic Stop – Anonymous Tip – Speeding

An anonymous tip that two cars were speeding at a specified location, along with specific descriptions of the vehicles, was sufficiently reliable to support stop of a car matching one of the descriptions; Florida v. J.L., 529 U.S. 266 (2000), distinguished:

¶21      We see Batt’s case as very different from J.L.  First, the description of Batt’s vehicle was more specific than the one in J.L.—a white Dodge truck with yellow lights limits the field of possible suspects considerably more than a “black male” wearing a “plaid shirt.”  Second, there were tipsters in this case, unlike in J.L., who may have opened themselves up to identification.  They were right there at the scene.  The trial court stated, “I think it is very reasonable that the officer … conclude[d] that obviously these are the individuals that had made the initial report and asked for police intervention.”  We agree—these individuals made eye contact with the police and gestured toward a car that was, at the time, obeying traffic laws.  And if their intention was to point out earlier illegal activity, as the trial court and the officer believed it to be, then they were not totally anonymous at the time of their gestures.

¶23      We emphasize that the test for reasonable suspicion—anonymous tipster or not—is based on the totality of the circumstances, which is a fact-dependent test.  See Post, 301 Wis. 2d 1, ¶13.  Here, there was an initial anonymous tip providing a sufficient description to allow the officer to identify a particular vehicle.  Then, the officer was able to further confirm his identification of this vehicle as the one in question when a group of people standing in the area of the original tip gestured toward the vehicle he suspected.  Because the criminal activity he was originally investigating (speeding) would have been visible to the public, he had no reason to doubt the basis of the anonymous tipster’s knowledge.  Under the totality of the circumstances, we believe that the officer had reasonable suspicion to make the traffic stop.

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