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Flawed, unreliable field sobriety tests deprived officer of probable cause to arrest for OWI

State v. Alejandro Herrera Ayala, 2015AP865-CR, District 3, 7/26/16 (one-judge decision; ineligible for publication); case activity (including briefs)

The court of appeals affirms the circuit court’s findings that the manner in which standardized field sobriety tests were administered to Herrera Ayala was “fatally flawed” because of “significant communication issues” between the officer and Herrera Ayala (a Spanish speaker with apparently limited English) and that those flaws made the SFSTs “unreliable” for purposes of determining probable cause to arrest. 

As the court of appeals aptly says, “[t]he outcome of this appeal is largely dictated by our standards of review”—namely, that a circuit court’s findings of fact are affirmed unless they are clearly erroneous. (¶15). The court accordingly goes into a significant amount of detail as to the circuit court’s conclusions (which it set forth in an 18-page written decision) to explain why they are not clearly erroneous and why the state is wrong to argue the findings are “in stark contrast to relevant facts contained with the record….” (¶¶3-9, 14, 16-18).

The court acknowledges a different fact finder might have come to different conclusions, at least on some of the test results. However, in addition the fact that the court of appeals does not engage in fact finding, “a factual finding is not clearly erroneous merely because a different fact[]finder could draw different inferences from the record.” State v. Wenk, 2001 WI App 268, ¶8, 248 Wis. 2d 714, 637 N.W.2d 417. Instead, a factual finding is clearly erroneous when it is “against the great weight and clear preponderance of the evidence.” State v. Arias, 2008 WI 84, ¶12, 311 Wis. 2d 358, 752 N.W.2d 748. (¶18 n.12).

The court also rejects the state’s claim that the circuit court “misapplied the law” in reaching its decision. The state doesn’t provide a clearly developed argument, and the argument it does make relies on an incorrect statement of the holdings of State v. Piddington, 2001 WI 24, 241 Wis. 2d 754, 623 N.W.2d 528, and State v. Begicevic, 2004 WI App 57, 270 Wis. 2d 675, 678 N.W.2d 293, which dealt with communication difficulties involving the implied consent warnings, not SFST instructions. (¶¶19-21).

Finally, the circuit court also held that without the SFST results, there wasn’t probable cause to arrest Herrera Ayala for OWI and the evidence obtained after the arrest must be suppressed. (¶12). The state doesn’t develop an argument that, even without the SFST results, the officer had probable cause to arrest Herrera Ayala, so the court of appeals affirms this aspect of the circuit court’s order, too. (¶22).

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