court of appeals decision (1-judge, ineligible for publication); case activity
State v. Andrew Wheaton, 2012AP173-CR
Reasonable Suspicion – OWI
Presence of the following factors establish reasonable suspicion to stop Wheaton for impaired driving:
¶23 The State points to the following as factors that produced an objectively reasonable suspicion of impaired driving at the time of the stop: (1) Wheaton was driving at 3:05 a.m., approximately one hour after “bar time”; (2) Wheaton was driving noticeably below the speed limit when the trooper first saw his car; (3) the trooper’s reasonable belief that Wheaton failed to signal a turn; (4) Wheaton failed to respond immediately to the trooper’s emergency lights; and (5) “observations of unusual driving were made within a short span of time.”[6]
The court acknowledges that “the issue of reasonable suspicion of impaired driving in this case presents a close call” – each factor is, in isolation, no more than a weak indicator of impairment and certainly not enough to support the stop, but in cumulation they amount to reasonable suspicion, ¶¶24-31.
Probable Cause – OWI
Probable cause supported arrest for OWI:
¶33 This court concludes that facts that include the following, when considered in their totality, amply support the court’s conclusion that the trooper had probable cause to arrest Wheaton for OWI: the hour of the night; the noticeably slow driving speed; the court’s finding that Wheaton did not immediately respond to the emergency lights; the smell of alcohol coming from Wheaton; Wheaton’s glassy and bloodshot eyes; his admission of drinking alcohol; his staring into the distance; his failure of the HGN test; his refusal of the PBT; and his explanation for his refusal of the PBT, an apparent admission that he had continued drinking even after bar time, before which he had been seen in a Tomah bar.[7] From all these facts, under a “flexible, common-sense measure of the plausibility of particular conclusions about human behavior,” “a reasonable law enforcement officer” would have probable cause to arrest Wheaton for operating a motor vehicle while under the influence of intoxicants.[8]
