State v. Brian L. Zieglmeier, 2016AP1815-CR, 4/25/17, District 3 (1-judge opinion, ineligble for publication); case activity (including briefs)
What are the odds that a driver who had been drinking beer would get pulled over by an Officer Pilsner? That’s what happened to Zieglmeier, who had been going 42 in a 25 mph zone. While he didn’t seem disoriented when he spoke to Pilsner, he also didn’t pass the “smell test.”
Zieglmeier couldn’t find his license or proof of insurance, and Pilsner detected an odor of alcohol in the car. After discovering an outstanding arrest warrant for Zieglmeier’s arrest, Pilsner and another officer ordered him out of the car, conducted FSTs and arrested him for OWI 3rd.
On appeal Zieglmeier argued that the officers lacked reasonable suspicion to extend the traffic stop for the FSTs. The court of appeals held that they had it:
¶10 Zieglmeier’s argument focuses largely on facts that are not present in this case. He notes his vehicle was not observed swerving on the road, there was no testimony about slurred speech or bloodshot eyes, the time of day was about 2:00 p.m. rather than 2:00 a.m., see Post, 301 Wis. 2d 1, ¶36, and he did not stumble as he exited his vehicle. Zieglmeier further disputes the relevance and accuracy of the circuit court’s finding that he exhibited “impaired judgment” at the time of the stop. Without any other factors, he argues that an admission to drinking two beers coupled with a “weak” odor of intoxicants does not give rise to a reasonable suspicion that a person is impermissibly intoxicated under WIS. STAT. § 346.63(1)(a). In support of that proposition, Zieglmeier cites WIS JI—CRIMINAL 2663A (2016) and two unpublished cases. See State v. Gonzalez, No. 2013AP2585, unpublished slip op. (WI App May 8, 2014); County of Sauk v. Leon, No. 2010AP1593, unpublished slip op. (WI App Nov. 24, 2010).4
¶11 We reject Zieglmeier’s arguments and instead conclude, based on the totality of the circumstances known to law enforcement, reasonable suspicion supported their decision to administer field sobriety tests to Zieglmeier. Zieglmeier takes an overly selective view of the circuit court’s findings. Unlike Gonzalez, No. 2013AP2585, unpublished slip op., ¶17, and Leon, No. 2010AP1593, unpublished slip op., ¶28, the court here considered more than just an odor of intoxicants and an admission to drinking. Zieglmeier exhibited poor driving conduct by traveling well in excess of the speed limit on what the circuit court described as a “rather major road.” The circuit court’s conclusions also rested on several other observations indicating that Zieglmeier exhibited “impaired judgment” before and during the stop. When these observations are combined with the noticeable odor of alcohol and admission to drinking, a reasonable officer could reasonably suspect Zieglmeier was impermissibly intoxicated.