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Defense win! Police lacked probable cause for OWI arrest due to unreliable FST results

State v. Scott J. Faruzzi, 2019AP167-CR, 9/25/19, District 2, (1-judge opinion, ineligible for publication); case activity (including briefs)

Don’t pinch yourself! You’re not dreaming.  An officer stopped Faruzzi’s truck for a “welfare check” due to some “possible family troubles.” But then he performed a series of FST’s and asked Faruzzi to submit to a preliminary breath test. When Faruzzi refused, the officer arrested him for OWL. The circuit court granted Faruzzi’s motion to suppress, and the court of appeals affirms due to lack of probable cause.

The State lost in the circuit court and again on appeal essentially because Faruzzi’s field test results were unreliable. The court of appeals explains:

¶19 But the field test results were either unclear or invalid. On the HGN test, although Ryan at first believed he detected four clues, he later admitted that this was not the case and that the test could not be relied upon. On the walk-andturn test, Ryan initially believed that Faruzzi failed to keep his heel and toe sufficiently close together on at least three of the eighteen steps, but then acknowledged that he could not be certain whether the gaps were an inch or more, largely rendering even the two of eight clues doubtful. When the finger dexterity test was used, there was an argument between Faruzzi and Goetsch, but that argument did not appear to detract from Faruzzi’s ability to correctly complete the test twice in a row.

¶20 Significantly, throughout the interactions between the officers and Faruzzi and his performance of the tests, the State advances no assertion that Faruzzi had any marked problems walking, talking, or maintaining his balance. Further, neither the welfare check nor the purported speeding led to any type of warning or citation.

¶21 The court made the following observations: an empty beer bottle from the passenger side was of little value; Faruzzi may have driven in excess of the limit but not in a dangerous or swerving nature as one might expect of an intoxicated driver; no facts supported the caller’s assertion of intoxication; Ryan’s honesty that Faruzzi’s odor was “light” and that the HGN was not properly administered; and the officers’ acknowledgement that there was no slurred speech or problems with walking or maintaining his balance.

The court of appeals found the circuit court’s independent viewing of the officer’s video footage especially “noteworthy.” The video was not included in the appellate record. The appellant (here, the State) has the responsibility to insure the at record includes all items pertinent to the appeal. When it leaves something out, the court of appeals must assume that the record supports the circuit court’s findings. See Schaidler v. Mercy Med. Ctr. of Oshkosh, Inc., 209 Wis. 2d 457, 469-70, 563 N.W.2d 554 (Ct. App. 1997) and T.W.S., Inc. v. Nelson, 150 Wis. 2d 251, 254-55, 440 N.W.2d 833 (Ct. App. 1989). That’s just what the court of appeals did. Opinion, ¶22.

The State also tried to argue that Faruzzi’s refusal to take a PBT under §343.303 showed consciousness of guilt and probable cause to arrest him. The court of appeals held that before an officer can ask a drive to take a PBT he must have probable cause of an OWI. As noted, the officer simply did not have probable cause of OWI. Opinion, ¶25.

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