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Probable Cause to Arrest, OWI

State v. Omar F. Ofarril-Valez, 2010AP3109-CR, District 1, 6/21/11

court of appeals decision (1-judge, not for publication); for Ofarril-Velez: Dustin C. Haskell, SPD, Milwaukee Appellate; case activity

The court marshals “nine indicia of impairment” to support its conclusion of probable cause to arrest: time (2:30 a.m.); driving 3-4 miles over posted limit; “light odor” of alcohol; admission of drinking 1 beer; glassy eyes; difficulty complying with instructions; field test performance; HGN test; insufficient PBT sample. State v. Lange, 2009 WI 49, followed “the case guides our decision,” ¶15; County of Jefferson v. Renz, 222 Wis. 2d 424, 588 N.W.2d 267 (Ct. App. 1998) (“Renz I”), reversed, County of Jefferson v. Renz, 231 Wis. 2d 293, 603 N.W.2d 541 (1999) (“Renz II”), distinguished.

Renz I held that probable cause to arrest did not exist, where Renz: emitted a “strong odor of intoxicants,” admitted to drinking three beers, stepped off the line during the walk-and-turn test, exhibited impairment on the HGN, and was unable to remain on one foot during the one-legged stand. True, Renz II reversed, but on a different ground (namely, that the police don’t need probable cause before requesting a PBT). Renz I therefore arguably remains binding on its discussion that probable cause to arrest for OWI didn’t exist on those facts. The court assumes without deciding that it is bound by Renz I, summarizes those facts, and concludes that they present a weaker case for arrest than those in this case. Granting that suppression issues are typically fact-specific, and that an element of subjectivity is almost necessarily present, take a look and see if you agree:

¶33     The facts that the court of appeals found insufficient for probable cause to arrest in Renz I were a strong odor of intoxicants, an admission to drinking three beers earlier in the evening, an inability to hold his foot up for thirty seconds on the one-legged stand test, unsteadiness in the heel-to-toe test, and an inability to touch the tip of his nose with his left finger during the finger-to-nose test.  Id., 222 Wis. 2d at 428, 444-47.

¶34     Here, there are more and stronger indicia of impairment than existed in Renz I.  First, in addition to some of the same factors observed in Renz I, (odor of alcohol, admission of drinking and failure to perform the one-legged test without incident) there were the following indicia of impairment here: (1) Ofarril-Valez’s persistence in driving over the speed limit, albeit three to four miles over, when being followed by a marked squad car; (2) the fact that it was 2:30 a.m on a Saturday morning; (3) Ofarril-Valez’s glassy eyes; (4) Ofarril-Valez’s refusal or inability to follow directions on three occasions to exit the vehicle; (5) Ofarril-Valez’s complete failure on the HGN test; and (6) Ofarril-Valez’s failure to provide a proper breath sample on the PBT.

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