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COA holds there was probable cause for OWI given admission of drinking up to twelve beers, slurred speech, inability to stand, and .198 PBT (among other evidence)

State v. Nicholas Allen Paulson, 2022AP186, 2/21/24, District III (1-judge decision, ineligible for publication); case activity

Although Paulson tries to establish that police did not have probable cause to arrest him despite, among other evidence, a PBT reading of .198, COA affirms.

Paulson called 911 to report that his wife had jumped out of their car while it was moving. (¶2). Paulson was slurring his speech and had trouble standing up. (Id.). His eyes were bloodshot and glassy and there was an obvious odor of intoxicants. (Id.) When the officer looked into Paulson’s car, he noticed a 36 pack of beer that had 12 cans missing. (¶3). Paulson admitted to drinking six to twelve beers. (Id.). After field sobriety tests, Paulson blew a .198 on the PBT and he was arrested for an OWI 1st. (¶7).

On appeal, Paulson argues that the officer lacked probable cause to arrest him. COA disagrees and affirms. First, it accepts the circuit court’s factual findings which credited the officer’s observations about Paulson and the alcohol in his car. (¶16). Second, it also relies on the results of the field sobriety testing as well as the high PBT result. (¶17). It therefore rejects Paulson’s technical challenges to the administration of the field sobriety testing, as settled law establishes that any defects in administration go to weight, not admissibility. (¶20). Here, the circuit court acknowledged some of Paulson’s arguments at the suppression hearing, but nonetheless concluded the tests provided “some evidence” it could rely on in the probable cause rubric. (¶10). It likewise rejects a battery of credibility arguments, holding that Paulson has not overcome the substantial deference accorded to the circuit court when acting as a factfinder. (¶¶21-24). And, while Paulson works hard to chip away at probable cause with a variety of other rhetorical approaches–including out and out requests that COA simply not consider certain evidence in the calculus–COA is unpersuaded and holds that the totality of the circumstances amply supported probable cause. (¶29).

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