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Motorcyclist’s “thick accent” no barrier to improper refusal finding

State v. Asif Ahmed, 2023AP1796, 3/14/24, District IV (one-judge appeal; ineligible for publication); case activity

Ahmed raises a few different arguments challenging the circuit court’s decision that he improperly refused to submit to a OWI blood draw, but the court of appeals rejects them all, agrees probable cause existed to arrest Ahmed for OWI, and affirms.

Upon arriving at the scene of a single motorcycle accident, an officer observed Ahmed lying on the side of the road next to his bike. The officer testified that he immediately smelled an odor of alcohol when he approached Ahmed, who admitted to having a beer earlier in the day. The officer asked Ahmed to perform FSTs because he did not believe Ahmed’s “one beer” explanation. The officer observed all “six clues” during the HGN test and, after some back and forth about the specific location of a proposed walk-and-turn test, Ahmed was determined to have refused to perform the test and was arrested. Op., ¶¶3-7.

In addition to the officer’s testimony at the refusal hearing, the circuit court viewed and considered the officer’s body cam video. Based on the video, the circuit court made factual findings that Ahmed was “swaying, had slow or slurred speech and [was] uncooperative; and Ahmed refused to perform the field sobriety tests on a safe, flat public spot in close proximity to” the scene of the accident.” Op., ¶15.

The court rejects Ahmed’s arguments disputing the circuit court’s factual findings and ultimate conclusion that probable cause existed to arrest Ahmed for OWI. First, Ahmed argues that his speech was not slurred or slow, but that he has a “thick accent.” After noting that the cirucit court’s finding was based on its own observations from the video, in addition to the officer’s testimony, the court concludes the finding was within the trial court’s exercise of discretion. Op, ¶16 (citing State v. Walli, 2011 WI App 86, ¶17, 334 Wis. 2d 402, 799 N.W.2d 898 (“when evidence in the record consists of disputed testimony and a video recording, appellate courts will apply the clearly erroneous standard when reviewing the circuit court’s findings of fact based on that recording”)).

Ahmed also complains that the circuit court erred in its finding that he refused to perform the walk-and-turn test, but again, the court defers to the circuit court’s reliance on the video from the scene and its own conclusion that the location was suitable for the test and that Ahmed’s request to conduct the test in a different location amounted to a refusal to perform the test. Op., ¶17.

Thereafter, the court reviews the trial court’s findings and rejects Ahmed’s argument that the officer lacked probable cause to arrest him for OWI. Op., ¶¶18-26.

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