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Circumstances supported extension of stop to investigate whether driver had prohibited alcohol concentration

State v. Nicholas Reed Adell, 2021 WI App 72; case activity (including briefs)

Reversing a circuit court order suppressing evidence, the court of appeals holds the totality of the circumstances gave rise to a reasonable suspicion that Adell was driving with a prohibited alcohol concentration (PAC) and that police could extend the traffic stop to have Adell perform field sobriety tests (FSTs).

Adell was stopped for speeding at 5:50 a.m. He told the officer he was running late for work. During his conversation with Adell, the officer noted an odor of intoxicants coming from inside the car–though there was a passenger in the car along with Adell. Adell denied drinking that morning, but said he’d been drinking the previous evening. The officer’s check of Adell’s record showed four prior OWI convictions, meaning he was subject to the .02 blood alcohol limit. Knowing from training and experience that a person has to consume only “very little” alcohol to exceed that limit, the officer had Adell do FSTs. (¶¶3-9).

The circuit court concluded the officer lacked sufficient facts to extend the stop to have Adelll do the FSTs and suppressed the results of them as well as subsequently discovered evidence. (¶10). The court of appeals disagrees. Reframing the issue slightly as (1) whether there was reasonable suspicion to extend the traffic stop to investigate a PAC offense and (2) whether that investigation properly included FSTs, the court says “yes” to both questions.

The circumstances supporting the extension of the stop are: the officer’s training and experience regarding the effects of even a small amount of alcohol; the fact Adell had four prior OWIs; the odor of intoxicants; Adell’s admission he had been drinking the evening before in light of the time of the stop; and Adell’s speed. (¶¶19-25). Certainly no one factor alone is overwhelming; moreover, the admission of drinking “may not count for much” (¶24) and the odor of alcohol could’ve come from the passenger (¶30). but when considered in the “aggregate,” State v. Hogan, 2015 WI 76, ¶37, 364 Wis. 2d 167, 868 N.W.2d 124, they provide a basis for continued investigation of the PAC offense. (¶26).

Further, the FSTs were a legitimate part of that continued investigation, even though they won’t by themselves reveal a person’s BAC and even if the officer didn’t have reason to believe the driver is impaired rather than driving with a PAC:

¶33     Field sobriety tests are “observational tools that law enforcement officers commonly use to assist them in discerning various indicia of intoxication,” comprising “visual cues” of a person’s “coordination, balance, concentration, speech, ability to follow instructions, mood and general physical condition.” City of West Bend v. Wilkens, 2005 WI App 36, ¶¶1, 20, 278 Wis. 2d 643, 693 N.W.2d 324 (internal quotation marks and quoted source omitted). It cannot reasonably be disputed that field sobriety tests, as tools for observing indicia of intoxication, can further the investigation of the offense of operating with a prohibited alcohol concentration by being likely to support or dispel the suspicion of that offense. This court has stated as much. See State v. Popp, No. 2016AP431, unpublished slip op. ¶16 (WI App July 7, 2016) (stating that reasonable suspicion of the offense of operating with a prohibited alcohol concentration justifies administering field sobriety tests); State v. Dotson, No. 2019AP1082, unpublished slip op. ¶¶1, 15 (WI App Nov. 24, 2020) (stating that administering field sobriety tests requires reasonable suspicion that a person was operating with a prohibited alcohol concentration or while intoxicated) (emphasis added).

In addition, the supreme court has held that FSTs can further the investigation of the offense of operating with a detectable amount of a restricted controlled substance in his or her blood, Hogan, 364 Wis. 2d 167, ¶¶45-46, another offense that doesn’t require evidence of impaired driving. (¶34).

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