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Third time no charm for argument that cops need probable cause to perform FSTs

Village of Ashwaubenon v. Mark J. Bowe, 2016AP594, 2/14/17, District 3 (1-judge opinion, ineligible for publication); case activity (including briefs)

Bowe argues that standard field sobriety tests constitute a 4th Amendment search. Thus, law enforcement needs probable cause, not reasonable suspicion, before asking a suspect to perform them. The court of appeals notes that it has twice rejected this argument based on County of Jefferson v. Renz.  It meets the same fate in this appeal.

¶10 Assuming a standardized field sobriety test is a search under the Fourth Amendment, pointing to People v. Carlson, 677 P.2d 310, 317-18 (Colo. 1984), Bowe urges us to conclude that standardized field sobriety tests must be supported by probable cause. We decline to do so. First, Carlson has no binding effect on us. See Alberte v. Anew Health Care Servs., Inc., 2000 WI 7, ¶7, 232 Wis. 2d 587, 605 N.W.2d 515 (recognizing that authority from other jurisdictions are not binding on Wisconsin courts). Second, Wisconsin cases have held that an officer may request a driver to perform standardized field sobriety tests when the officer has reasonable suspicion that the driver is impaired. See, e.g., County of Jefferson v. Renz, 231 Wis. 2d 293, 310, 603 N.W.2d 541 (1999); accord State v. Colstad, 2003 WI App 25, ¶¶19-21, 260 Wis. 2d 406, 659 N.W.2d 394.

The court of appeals further found that the cop had reasonable suspicion to perform FSTs in this case:

¶12 While Sands may not have suspected Bowe was driving while under the influence before Bowe was stopped, prior to Sands requesting Bowe perform standardized field sobriety tests Sands smelled alcohol coming from Bowe’s vehicle, he observed Bowe had bloodshot, glossy eyes and a flushed face, was slurring his words, and Bowe admitted to drinking alcohol earlier that night. Under the totality of the circumstances, Sands had a reasonable, articulable basis to suspect that Bowe was operating a vehicle while intoxicated. (citations omitted).

In footnote 3, the court of appeals notes that Bowe’s attorney filed “virtually identical” and equally unsuccessful briefs in Village of Little Chute v. Rosin, Appeal No. 2013AP2536, and Town of Freedom v. Fellinger, Appeal No. 2013AP614. See On Point‘s posts here and here.  If the goal is to push for a change in Wisconsin law, one would expect to see petitions for review filed in these cases, but they weren’t.

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