State v. Joseph Blankenship, 2024AP791-CR, 11/7/24, District IV (one judge decision; not eligible for publication); case activity
The Court of Appeals affirmed the circuit court’s order granting Joseph Blankenship’s motion to suppress because police did not have reasonable suspicion to direct him out of his vehicle to perform field sobriety tests.
At 11:30 p.m., Muscoda police received a tip from a citizen informant that a “potential drunk driver” in a blue Ford Escape was approaching Wisconsin Avenue in Muscoda, a community of 1,200 people in Grant County. The informant said he or she had been trying to get the keys from the driver. (¶ 5).
An officer saw the vehicle, followed it for a short distance, and did not observe any traffic violations. The Ford Escape pulled over soon after the officer started to follow, although the officer did not activate his emergency lights or otherwise initiate a traffic stop. The officer approached the vehicle and the driver, identified as Blankenship, gave the officer identification without prompting. The officer did not smell intoxicants from Blankenship and noted that Blankenship did not have bloodshot or glassy eyes or demonstrate any difficulty handling his identification. Blankenship confirmed to the officer that he was involved in the incident described by the informant and said a number of people falsely accused him of hitting a child with his vehicle a few weeks earlier. The same people, according to Blankenship, took his keys and threw them on the hood of his car; he then grabbed his keys and left. (¶¶ 5-6).
The officer observed that Blankenship’s speech was slurred and asked if he had been drinking. Blankenship said he had two or three beers three to four hours earlier. The officer then directed Blankenship to step out of the vehicle to perform field sobriety tests, to which he complied. (¶ 7).
Based on evidence obtained after Blankenship got out of his car to perform the sobriety tests, he was charged with third-offense operating a vehicle while intoxicated and third-offense operating a vehicle with a prohibited alcohol concentration. (¶ 3). The circuit court granted Blankenship’s motion to suppress because it found that police did not have reasonable suspicion to compel Blankenship to perform field sobriety tests. (¶ 1).
On appeal, the State argued that the totality of circumstances provided the officer reasonable suspicion to believe that Blankenship was driving under the influence of alcohol. The Court of Appeals assumed, without deciding, that the officer had reasonable suspicion to stop Blankenship’s vehicle given the informant’s tip. But the dispositive issue was whether the officer had reasonable suspicion when he directed Blankenship to step out of his vehicle to perform the field sobriety tests because requesting a driver to complete field sobriety tests is a greater invasion of liberty than the initial police stop and must be separately justified by specific, articulable facts showing a reasonable basis for the request. (¶ 17).
The Court considered the following totality of circumstances: 1) the officer did not witness any erratic driving by Blankenship and none was reported by the informant; 2) the officer did not smell any alcohol, observe bloodshot eyes, or notice that Blankenship had difficulty handling his identification; 3) Blankenship’s speech was not substantially slurred and he did not exhibit “drunk demeanor” – factual findings made by the circuit court that the State did not challenge; 4) Blankenship’s admission to drinking was “a fairly specific time and number of beverages consumed,” which the officer testified did not support an inference of impairment; 5) the informant reported a “potential drunk driver,” but did not provide a basis for the informant’s knowledge; 6) Blankenship’s explanation that the “key throwing incident was essentially people picking on him” undermined the informant’s reliability; and 7) the stop occurred at 11:30 p.m., which is “neither the middle of the day nor bar time” and therefore did not weigh strongly in either direction. (¶¶ 20-26).
The Court concluded that the above factors did not establish reasonable suspicion: “Simply put, the tip alone was not sufficiently reliable to support reasonable suspicion without [the officer] observing additional factors to support the inference that Blankenship was either operating with a prohibited alcohol concentration or intoxicated to a degree that rendered him incapable of safely driving. As summarized above, no such additional factors were present here that could provide [the officer] with the necessary particularized suspicion that Blankenship was impaired at the time [the officer] directed him to perform field sobriety tests.” (¶ 27).
