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Probable cause to arrest for OWI found

State v. Michael R. Pace, 2018AP1428, District 2, 1/30/19 (one-judge decision; ineligible for publication); case activity (including briefs)

The officer who arrested Pace for OWI had probable cause to do so.

Pace complains that the officer stopped him for speeding and a lane deviation, but his actual speed was not established and the deviation was minor. Moreover, he says, the officer noted no signs of intoxication on first contact, didn’t ask him if he’d been drinking, and gave no details about how he failed the field sobriety tests.

¶9     We disagree that the facts failed to support probable cause. Focusing mostly on what the facts did not show, Pace wrongly diminishes what they did show, which, taken together, was “more than a possibility” that he had committed OWI: the exact number notwithstanding, Pace does not dispute that he passed Lawson, who was travelling at seventy miles per hour, “at a high rate of speed” and that he was in fact speeding, a traffic violation; the degree of his lane deviation also notwithstanding, Pace acknowledges the deviation, another traffic violation; Pace’s red, bloodshot eyes and odor of alcohol, while not at first noticed due to Lawson’s initial perspective being on the passenger side, were apparent once Pace exited the vehicle; and, though he was not asked for details about the testing, Lawson did testify that he had been trained to detect impaired drivers under the National Highway Traffic Safety Administration Standards, that he administered field sobriety tests to Pace, and that Pace did not pass “any” of them.

And even if a court needs details of how a driver failed a field sobriety test to use that failure in determining probable cause, FSTs are not a prerequisite for probable cause to arrest, as probable cause can be shown with other facts and circumstances. State v. Kasian, 207 Wis. 2d 611, 622, 558 N.W.2d 687 (Ct. App. 1996) (“In some cases, the field sobriety tests may be necessary to establish probable cause; in other cases, they may not.”); State v. Lange, 2009 WI 49, ¶¶37-38, 317 Wis. 2d 383, 766 N.W.2d 551 (while certain evidence—odors, an admission, or containers—may be common in drunk driving cases, no particular type of evidence is required). (¶12).

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