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COA affirms OWI 1st; rejects challenges to traffic stop, FSTs, and consent

County v. Buffalo v. Kevin J. Rich, 2020AP1526, 6/7/22, District 3 (1-judge opinion, ineligible for publication); case activity (including briefs)

The court of appeals rejected all three of Rich’s challenges to his OWI 1st conviction. It held that the deputy did have reasonable suspicion to stop Rich’s jeep and to expand the stop to require field sobriety tests. It also held that even though Rich gave six breath samples, he consented to and completed just one breath test.

The court of appeals held that Deputy Zastrow had probable cause to perform a traffic stop because he saw Rich following another vehicle more closely than is reasonable and prudent in violation of §346.14(1).

¶16 . . . Here, the circuit court made an explicit factual finding that Rich had been “following a car in front of him too close.” That finding was supported by Zastrow’s testimony, which the court found to be credible. Again, Zastrow testified that Rich “sped up to the first car and got to a quarter vehicle length behind the first vehicle,” at “approximately five to six feet distance,” before jolting between lanes and attempting to pass the sedan. The court’s finding that Rich was driving too close to the car in front of him is not clearly erroneous. Thus, Zastrow had reasonable suspicion to believe that Rich had violated WIS. STAT. § 346.14(1).

¶17 Even if we were to give credence to Rich’s argument that he was following the sedan closely in order to pass it—a version of events the circuit court rejected as making “no sense”—Zastrow testified that after failing to pass the vehicle, Rich “proceeded to continue following the sedan at approximately a quarter of length behind it.” Therefore, Rich cannot rely upon his attempt to pass to excuse his traffic violation.

Note: The court of appeals opinion repeatedly cites to §346.14(1) (2019-2020), but there is no (1) in that statute. Perhaps it meant §346.14(1m)?

The court of appeals also held that even though Zastrow did not observe Rich having bloodshot eyes, slurred speech, or other traditional indicators of impairment due to alcohol, he  still had reasonable suspicion to continue the stop to perform FSTs.

¶22 . . . Rich violated at least one traffic law. In addition, Rich revved his engine, aggressively accelerated, and changed lanes in a jolting manner, all of which contributed to a reasonable suspicion that he was driving while impaired. This driving behavior, when combined with the odor of alcohol that Zastrow observed and Rich’s admission to consuming two beers, provided Zastrow with reasonable suspicion of impaired driving. Accordingly, Zastrow did not improperly expand the scope of the traffic stop by conducting SFSTs.

Lastly, the court of appeals rejected Rich’s argument that he consented to one breath test but was subjected to two. Rich blew 6 times. Only two samples were sufficient. Unfortunately, Rich neglected to challenge the circuit court finding that only one breath test occurred.

But even if he had, his argument would have failed.  The court of appeals said: “Any expectation on Rich’s part that the scope of his consent extended to only one breath sample was eliminated when he consented to the testing of his breath after being read the Informing the Accused form, which explicitly explained that “one or more samples of breath” would be requested.” Opinion, ¶25.  Also, because Rich was silent throughout the testing process, he did not withdraw or limit his consent in anyway. Opinion, ¶26.

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