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Arrest, OWI – Probable Cause – Video Evidence

State v. Gustavo E. Lopez, 2011AP1037-CR, District 2, 11/23/11

court of appeals decision (1-judge, not for publication); for Lopez: Walter Arthur Piel, Jr.; case activity

¶8        While the record reveals that Lopez is correct in stating that the court took video evidence from the roadside stop into consideration when making the finding of probable cause, we disagree that this was in any way not allowed. When determining the facts available to the officer to formulate probable cause, “[t]he test is objective:  what a reasonable officer would reasonably believe under the circumstances.” State v. Londo, 2002 WI App 90, ¶10, 252 Wis. 2d 731, 643 N.W.2d 869.  Here, the trial court saw by video what the officer saw in person.  As we already stated, we have reviewed the video and the trial court’s findings from it are not clearly erroneous.  The video shows that Lopez was impaired.  The trial court is not limited to the officer’s testimony in finding probable cause.  It is the testimony plus the video that allowed the trial court to reach the conclusion it did.  We see no problem here.  The video is evidence.  Judges use evidence to find facts.

¶9        Under the totality of the circumstances, the facts available to the officer at the time of the arrest were sufficient to show probable cause.  Lopez ran a red light and proceeded to drive his vehicle over the center line of the lane.   Then, once the car was stopped, the officer smelled alcohol and Lopez admitted to consuming alcohol prior to driving.  Lopez failed his field sobriety test and the officer detected four out of six signs of intoxication in the horizontal gaze nystagmus test.  All of this evidence was available to the officer to formulate the conclusion that Lopez was likely intoxicated.  We therefore affirm the trial court’s finding of probable cause.

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