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Bad driving after bar time, odor of alcohol, admission of drinking, etc., adds up to probable cause to arrest for OWI

Fond du Lac County v. Robyn M. Pollack, 2014AP1936, District 2, 1/14/15 (1-judge decision; ineligible for publication); case activity

Pollack’s license was properly revoked after refusing a chemical test because the police officer had probable cause to arrest her for OWI under the totality of the circumstances.

¶12      … The deputy observed Pollack driving “in both lanes of the southbound lane” going northbound on U.S. Highway 151. Even if [the GPS application on] Pollack’s phone told her to turn onto this highway, most sober people would operate in only one lane at a time and in a northbound lane to head northbound. Further, the time was 3:00 a.m., a time of day more often associated with intoxicated driving. See State v. Post, 2007 WI 60, ¶36, 301 Wis. 2d 1, 733 N.W.2d 634 (poor driving around “bar time” lends to suspicion that operator is driving while intoxicated). The deputy observed Pollack to be nervous, smelled alcohol on her breath, and noticed that her eyes were glassy, supporting her admission that she had “a couple” “diet and Captain’s.” By refusing to tell the deputy how many “diet and Captain’s” she had consumed and showing clear reluctance to provide a [preliminary] breath sample, Pollack displayed consciousness of her guilt, i.e., that she knew she had consumed an amount of alcohol that might make her operation of her vehicle at that time illegal and did not want the deputy to discover this.

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