Vill. of Grafton v. Wesela

960 N.W.2d 637 (Table)

2021 WI App 36

VILLAGE OF GRAFTON, Plaintiff-Respondent, v. Elizabeth A. WESELA, Defendant-Appellant.

Appeal No. 2020AP1416

Court of Appeals of Wisconsin.

April 7, 2021

NEUBAUER, C.J. ¹

¶1 Elizabeth Wesela appeals from a circuit court order convicting her of operating a motor vehicle while intoxicated (OWI) and with a prohibited alcohol concentration (PAC), both as first offenses. ² Although Wesela agrees that evidence supported the police officer's initial stop, she argues that the officer lacked reasonable suspicion to extend the stop to conduct field sobriety tests and further investigation with a preliminary breath test. Wesela argues that the circuit court erred in denying her motion to suppress all evidence obtained after the stop. After reviewing the evidence and the court's findings, we conclude that the totality of the circumstances established reasonable suspicion to extend the stop and probable cause to administer a preliminary breath test. We affirm.

BACKGROUND

¶2 Wesela filed a de novo appeal to the circuit court after a municipal court denied Wesela's motion to suppress evidence and found her guilty of OWI and PAC. The circuit court heard and denied a similar suppression motion. Wesela subsequently waived her jury trial request and agreed to a court trial on the basis of stipulated facts, including the testimony and evidence offered by an officer (the sole witness at the hearing on the motion to suppress), with the exception of the preliminary breath test (PBT) result.

¶3 Wesela was pulled over by a Village of Grafton police officer at around 1:20 a.m. on a June morning after she drove her car away from a parking lot that served as a park-and-ride for Summerfest attendees. Although the officer did not observe Wesela committing any traffic offenses, he pulled Wesela over after determining that the registered owner of the car she was driving had an expired driver's license. The officer "smelled the odor of intoxicants coming from inside the vehicle" when he approached Wesela's driver's side window and noticed that her eyes were "somewhat bloodshot." ³ Wesela admitted that she had been drinking at Summerfest earlier that evening.

¶4 The officer went back to his car to check Wesela's driver's license. After waiting about five minutes for a backup officer to arrive, the officer asked Wesela to step out of the car and onto the sidewalk. The officer asked Wesela additional questions about her drinking that evening after she stepped out of the car. Wesela told the officer that she had consumed four alcoholic seltzers and "two to three beers" over the course of the evening. After Wesela exited her car, the officer smelled intoxicants on her breath. Wesela then submitted to field sobriety tests (FSTs), in which the officer saw sufficient clues to indicate intoxication on two of the three standardized FSTs. The officer then conducted a PBT, which showed a prohibited blood alcohol concentration. The officer placed Wesela under arrest.

¶5 After the officer arrested Wesela for OWI, Wesela agreed to provide an evidentiary breath sample using an intoximeter, which provided a breath alcohol concentration result of .12. The officer then issued the citations referred to above.

¶6 As noted above, the circuit court first denied Wesela's motion to suppress. The court found that the officer's testimony in general was credible, and specifically found credible and supported by the evidence his observations of bloodshot eyes and the odor of intoxicants and his conclusion that Wesela was intoxicated based on her performance on the FSTs.

¶7 The circuit court then found Wesela guilty of both citations at trial, specifically finding (1) Wesela was operating a motor vehicle; (2) Wesela was operating under the influence; and (3) Wesela was operating with a prohibited alcohol concentration of over .08. In support, the court cited Wesela's performance on the FSTs to which she submitted and "that her eyes were bloodshot," as well as the intoximeter results showing a BAC of .12 about an hour after Wesela's arrest.

¶8 Wesela appeals.

DISCUSSION

Standard of Review and the Law of Reasonable Suspicion and Probable Cause to Administer a Preliminary Breath Test

¶9 It is a mixed question on review whether a motion to suppress evidence should have been granted or not. State v. Dumstrey , 2015 WI App 5, ¶7, 359 Wis. 2d 624, 859 N.W.2d 138 (2014). Unless clearly erroneous, we uphold the circuit court's findings of fact, and we review de novo the application of those facts to constitutional principles. Id. "A finding of fact is clearly erroneous if it is against the great weight and clear preponderance of the evidence." State v. Anderson , 2019 WI 97, ¶20, 389 Wis. 2d 106, 935 N.W.2d 285.

¶10 Temporary detention during a traffic stop is a seizure and, therefore, it must conform to the constitutional requirement of reasonableness. State v. Popke , 2009 WI 37, ¶11, 317 Wis. 2d 118, 765 N.W.2d 569. A law enforcement "officer may stop a vehicle when he or she reasonably believes the driver is violating[, or has violated,] a traffic law." State v. Hogan , 2015 WI 76, ¶34, 364 Wis. 2d 167, 868 N.W.2d 124 (citation omitted). The officer may extend the stop if he or she "becomes aware of additional suspicious factors which are sufficient to give rise to an articulable suspicion that the person has committed or is committing an offense or offenses separate" from the violation that prompted the officer's initial investigation. State v. Colstad , 2003 WI App 25, ¶19, 260 Wis. 2d 406, 659 N.W.2d 394 (citation omitted). An extended inquiry must be supported by reasonable suspicion. Hogan , 364 Wis. 2d 167, ¶35.

¶11 Reasonable suspicion is "a suspicion grounded in specific, articulable facts and reasonable inferences from those facts, that the individual has committed [or was committing or is about to commit] a crime." State v. Waldner , 206 Wis. 2d 51, 56, 556 N.W.2d 681 (1996) (alteration in the original; citation omitted). Reasonable suspicion is a "common sense test" that asks: Under the totality of the circumstances presented, what would a reasonable law enforcement officer reasonably suspect in light of his or her training and experience? Colstad , 260 Wis. 2d 406, ¶8 (citation omitted); see Hogan , 364 Wis. 2d 167, ¶¶36-37. "[S]uspicious conduct by its very nature is ambiguous, and the principle function of the investigative stop is to quickly resolve that ambiguity." State v. Anderson , 155 Wis. 2d 77, 84, 454 N.W.2d 763 (1990).

¶12 Under WIS. STAT. § 343.303, an officer may administer a PBT when he or she "has probable cause to believe" the person "is violating or has violated" a state or local drunk driving law. "In this context, ‘probable cause to believe’ refers to a quantum of proof greater than the reasonable suspicion necessary to justify an investigative stop, ... but less than the level of proof required to establish probable cause for arrest." Colstad , 260 Wis. 2d 406, ¶23 (citation omitted).

The Officer had Reasonable Suspicion to Extend the Stop

¶13 Although Wesela concedes that the officer appropriately stopped her car based on the fact that its registered owner had an expired license, she 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, when the totality of the facts present at the scene are considered, we conclude that those facts amount to reasonable suspicion that Wesela was operating under the influence. See State v. Lange , 2009 WI 49, ¶23, 317 Wis. 2d 383, 766 N.W.2d 551 (a court considers whether "the totality of the circumstances within [the officer's] knowledge at the time of the arrest would lead a reasonable police officer to believe ... that the defendant was [driving] under the influence of an intoxicant").

¶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. ⁴ See, e.g. , Lange , 317 Wis. 2d 383, ¶¶30, 32, 37-38. Because there was reasonable suspicion to extend the stop to perform the FSTs, the circuit court properly denied Wesela's motion to suppress.

The Officer had Probable Cause to Administer the PBT

¶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.

¶17 As stated above, an officer may administer a PBT when he or she has "probable cause to believe" the person is violating a drunk driving law. See WIS. STAT. § 343.303. "[P]robable cause to believe" here requires proof beyond what is required for an investigative stop, but is less than the level of proof required to arrest. Colstad , 260 Wis. 2d 406, ¶23 (citation omitted). ⁵

¶18 Wesela argues that the FSTs the officer administered were unreliable because they failed to conform to the standardized procedures approved by the United States...