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Cop had reasonable suspicion to perform FSTs based on time of stop and smell of alcohol

City of Waukesha v. Derek R. Pike, 2016AP1720, 3/1/17, District 2 (1-judge opinion, ineligible for publication); case activity (including briefs)

A police officer stopped Pike at 1:00 a.m. because his car lacked a front license plate. The officer smelled alcohol, and Pike admitted that he was coming from a nightclub where he had consumed 1 or 2 beers. The officer conducted FSTs, and the results caused him to request blood chemical tests, which Pike refused.

The municipal court held that Pike was not guilty of OWI but he was guilty of improperly refusing to submit to a chemical test. The sole issue on appeal was whether the officer had reasonable suspicion to continue detaining Scott for FSTs.  If not, then the FST results should have been suppressed. The court of appeals found reasonable suspicion:

¶8 . . . What [the officer] knew was that while drinking at the bar, Pike had consumed enough alcoholic beverages to emit a noticeable odor of intoxicants. Furthermore, Fisher pulled over Pike at approximately 1 a.m., a time of day that lends to suspicion Pike may have been drinking intoxicants in an amount greater than one might consume at other times of the day. See Post, 301 Wis. 2d 1, ¶36 (time of night “does lend some further credence” to an officer’s suspicion of intoxicated driving); see also State v. Lange, 2009 WI 49, ¶32, 317 Wis. 2d 383, 766 N.W.2d 551 (concluding the time of day is relevant for an OWI probable cause (or reasonable suspicion) determination).

¶9 While the evidence available to Fisher at the time he extended the traffic stop for field sobriety tests did not amount to probable cause that Pike had been operating while under the influence of an intoxicant or with a prohibited alcohol concentration, it was enough for a reasonable police officer to reasonably suspect Pike might have been in violation of those laws. Extending the traffic stop briefly to confirm or allay this suspicion was reasonable and thus lawful.



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