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Trial court properly concluded officer did not have probable cause to arrest defendant for OWI

Fond du Lac County v. Randal B. Hopper, 2012AP1719, District 2, 11/27/13; court of appeals decision (1-judge; ineligible for publication); case activity

The circuit court properly concluded the defendant did not unlawfully refuse to provide a breath sample because the officer lacked probable cause to arrest him for OWI:

¶10      Considering the collective knowledge of dispatch and the arresting deputy at the time the deputy arrested Hopper, the law enforcement agency was aware that a citizen called in to report concerns about another driver’s operation of his or her motor vehicle. The deputy dispatched to investigate the “reckless driver” encountered Hopper and smelled an odor of intoxicants. After first denying drinking, Hopper admitted consuming two drinks, which the deputy believed were drinks of beer. Significantly, the deputy testified that he did not recall observing any problems with Hopper’s balance or coordination and that, during the entire forty minutes he personally observed Hopper, he observed no problems with Hopper’s speech and “didn’t observe [Hopper] do anything out of the ordinary.” Although the deputy did not normally use “pass/fail” terminology with regard to field sobriety tests, he nonetheless indicated that Hopper “passed” the one-legged stand and walk-and-turn tests and that he observed no indicia of intoxication on the one-legged stand test and only one clue on the walk-and-turn test. Although the deputy observed that Hopper recited the alphabet from “F” to “Z” instead of “F” to “V” as instructed, the deputy testified that this was not an indicator of impairment.

Nor did the circuit court err in excluding the deputy’s testimony about the results of the HGN tests. The County failed to argue in the circuit court that the standard for admitting HGN testing at a refusal hearing is more liberal than admitting the evidence at trial. (¶13). Further, the County failed to show in the trial court that the expert who administered the HGN test was qualified to do so, as required by State v. Zivcic, 229 Wis. 2d 119, 598 N.W.2d 565 (Ct. App. 1999). (¶¶14-16). Finally, the County’s argument that the circuit court erred in excluding evidence about Hopper’s refusal of the PBT is forfeited because the County failed to argue for its admissibility in the trial court. (¶¶17-18).

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