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Police had basis to conduct FSTs and ask for PBT

Village of Grafton v. Elizabeth A. Wesela, 2020AP1416, District 2, 4/7/21 (one-judge decision; ineligible for publication); case activity (including briefs)

Wesela concedes police had reaonsable suspicion to make the initial stop of the car she was driving, but complains, fruitlessly, that the officer didn’t have reasonable suspicion to extend the stop to conduct field sobriety tests or to ask for preliminary breath test.

Wesela was pulled over very early on a June morning after driving from a lot that served as a park-and-ride site for Summerfest wassailers. The officer stopped the car because the registered owner had an expired driver’s license. The officer noted some of the usual indicia of alcohol consumption, and Wesela admitted she’d been drinking. The officer had her step out of the car, do some FSTs, and submit to a PBT. (¶¶3-4).

She concedes the legality of the stop, but challenges the extended investigation. The court of appeals is not persuaded.

¶13     … Wesela … argues that the stop became unlawful as soon as Wesela presented the officer with a facially valid driver’s license. We reject this argument. Our supreme court has explicitly stated that it is not an unlawful extension of a traffic stop for an officer to perform a routine check on a driver’s license. See State v. Smith, 2018 WI 2, ¶2, 379 Wis. 2d 86, 905 N.W.2d 353. (“[W]hen an officer conducts a valid traffic stop, part of that stop includes checking identification.”).

¶14     Wesela also argues that the officer’s decision to extend the traffic stop to perform the FSTs was not supported by reasonable suspicion; as a result, she argues, the prolonged stop became an unlawful seizure. However, … the totality of the facts present at the scene … amount to reasonable suspicion that Wesela was operating under the influence. ….

¶15     Specific articulable facts supporting reasonable suspicion that Wesela was operating under the influence included the odor of intoxicants emanating from her vehicle, her bloodshot eyes, her admission that she had been drinking at the festival, and the timing of the incident in the early morning hours when the officer observed Wesela leaving the festival bus. ….


¶16     Wesela next argues that even assuming that the officer had reasonable suspicion to extend the stop and conduct FSTs, the officer lacked probable cause to administer the PBT. We reject this argument. The totality of the FST evidence discussed above, wherein Wesela exhibited signs of intoxication, along with the other facts the officer observed, was sufficient cause for the officer to request the PBT sample.

The court goes on to reject Wesela’s arguments that the FSTs didn’t conform to standardized procedures. That goes to weight, not admissibility at the suppression hearing, and in any event the circuit court didn’t find they were done improperly, despite Wesela’s request that it do so. (¶¶18-20).

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