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COA finds reasonable suspicion for stop and probable for OWI arrest

State v. Robert L. Bentz, 2017AP1436-CR, 3/21/18, District 2 (1-judge opinion, ineligible for publication); case activity (including briefs)

The State charged Bentz with OWI 3rd and PAC 3rd. Bentz moved to suppress evidence for lack of reasonable suspicion to detain and lack of probable cause to arrest. The circuit court denied his motion. The appeal concerned the point at which the law enforcement officer seized Bentz and the evidence supporting reasonable suspicion and probable cause.

Seizure: A big point of disagreement between the parties concerned the point at which police seized Bentz. He was driving at 2:00 a.m. when an officer saw him “prematurely” activate his turn signal and make a slightly wide turn. The officer followed Bentz as he proceeded down the middle of a residential street, pulled into a driveway and sat for about 5 minutes.  Bentz then backed out. The officer followed him to a different street where he pulled into another driveway–this time parking partly on the grass. The officer watched Bentz for about 5 minutes, left, returned about 10 minutes later, got out of his car approached Bentz, who was seated on the ground leaning against his car, on foot.

The officer asked Bentz if everything was ok, what he was doing, where he came from and so forth. The officer smelled alcohol on Bentz, observed bloodshot, glossy eyes and slurred speech. He touched Bentz’s car and felt that it was warm. He then confronted  Bentz with inconsistencies in his answers to questions. He also obtained consent to search the vehicle but found no alcohol. When Bentz refused to submit to field sobriety tests, the officer arrested him. A second officer arrived on the scene to assist.

The court of appeals held that Bentz was seized at the point when the first officer confronted Bentz about the truthfulness of his answers.

¶29 We therefore agree with the circuit court that no seizure took place upon Otte’s approach to Bentz nor even during the initial, nonconfrontational questioning. A reasonable person would believe that he or she was free to leave at least through this point of the encounter. The circuit court further determined that the seizure occurred when Otte “confronted” Bentz about his account, in particular how Bentz’s vehicle could have been parked for the past three to four hours when Otte had personally observed it traveling through the city. We agree that, at this point, the nature of the encounter changed and the questions became more probing. But it is unnecessary in this case to pinpoint whether the seizure occurred between that time and the request for the sobriety tests. It is enough that we conclude that the earliest point at which a seizure occurred was when Otte confronted Bentz with accusatory questions challenging the truthfulness of Bentz’s account. At that point, as discussed next, reasonable suspicion clearly existed to support the investigatory stop.

Reasonable suspicion: Having established the earliest point of seizure, it was easy for the court of appeals to find reasonable suspicion to support a stop:

¶32 By the time that Otte confronted Bentz with the deficiencies in his account, a number of specific facts were known that supported a reasonable suspicion that Bentz had been operating while impaired:  the extended period of odd driving behavior, which included a wide turn, driving down the middle of the street, twice turning into the first available residential driveway and twice parking at residences unrelated to the vehicle; Bentz sitting in an admitted stranger’s driveway at about 2:30 a.m., leaning up against his vehicle, which he had parked partly on the grass; the odor of intoxicants coming from Bentz, who also exhibited slurred speech and glossy, bloodshot eyes and Bent’s problematic responses as to his whereabouts and attempts to call his son, and particularly his statement that he had parked the car at that location three to four hours earlier, when Otte had seen within the past twenty minutes the same car being driven and then parked at that location, which was confirmed by a warm hood.  These circumstances, and the reasonable inferences that can be drawn from them, are more than sufficient to support a reasonable suspicion that Bentz had been driving the vehicle while impaired, justifying an investigatory detention.

Probable cause: Ditto regarding probable cause:

¶36 We reject Bent’s lack of probable cause argument, as there was plainly more than sufficient evidence to reasonably believe that Bentz had driven while impaired.  In addition to all of the information that supported a reasonable suspicion to seize, Bentz admitted to having driven the vehicle, and he twice refused standardized field sobriety tests.  See State v. Babbitt, 188 Wis. 2d 349, 363, 525 N.W.2d 102 (Ct. App. 1994) (refusing to submit to a sobriety test may be used as evidence to support probable cause).  The admission to driving, among other evidence, obviates Bent’s points about the lack of continuous observation and the lack of evidence showing that he had the keys.  Otte had probable cause at the time of the arrest.

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