State v. Lauren Dannielle Peterson, 2023AP890-CR, 12/29/23, District 4 (one-judge case, ineligible for publication); case activity
Peterson’s circuit court win is short-lived after the court of appeals concludes that reasonable suspicion existed to initiate an OWI investigation and probable cause existed to ask Peterson to perform a preliminary breath test (PBT).
Peterson was stopped around 9:00 p.m. for having an inoperable taillight. An officer observed one adult and one minor passenger in Peterson’s vehicle and after Peterson rolled down her window, noticed “an odor of intoxicants emitting from the vehicle.” Peterson’s eyes were glossy and bloodshot and she explained that she had been watching the Bucks game at a relative’s house. Peterson then admitted that she drank “two White Claws” during the game and finished her second drink roughly 20 minutes ago. The officer then ran a records check and learned that Peterson has one prior OWI, but confirmed that she had a valid license. The officer returned to Peterson’s vehicle and asked her to exit, after which the officer “detected the odor of intoxicants on Peterson’s person.” Op., ¶¶3-6.
Based on the foregoing, the officer asked Peterson to perform three FSTs: the Horizontal Gaze Nystagmus (HGN), the walk-and-turn test, and the one-leg-stand test. According to the officer, Peterson exhibited all six clues on the HGN test, one of eight clues on the walk-and-turn test and no clues on the one-leg-stand test. Peterson was then asked to take a PBT, which resulted in a .103 BAC level. Op., ¶¶7-8.
Below, the circuit court suppressed evidence of Peterson’s PBT after concluding that the officer lacked probable cause to ask Peterson to take the test. On appeal, Peterson argued that the officer lacked reasonable suspicion to initiate the OWI investigation in the first place and that the circuit court was right to conclude that the officer lacked probable cause to ask her to perform the PBT.
With regard to whether the officer had reasonable suspicion to initiate an OWI investigation, the court recognizes that not every person who has consumed alcoholic beverages prior to operating has committed an OWI-related offense. Next, ackowledging a dispute between the parties about when the officer’s traffic stop turned into an OWI investigation, the court assumes the investigation started when the officer asked Peterson if she had been drinking. However, unfortunately for Peterson, the court concludes that even prior to that question, the officer had reasonable suspicion to suspect that Peterson had violated an OWI-related law. Op., ¶14.
In support of its reasonable suspicion conclusion, the court pointed to the following facts: (1) Peterson had come from a family gathering, (2) the officer smelled intoxicants coming from the vehicle Peterson was driving (even though there were two other people in the vehicle), and (3) Peterson has “glossy” and bloodshot eyes. Op., ¶16.
Turning to whether probable cause existed to justify the PBT, the court relies on Wis. Stat. § 343.303 to explain that the quantum of proof needed to ask an individual to submit to a PBT is greater than the reasonable suspicion needed to justify an OWI investigation, but less than the level of proof needed to establish probable cause to arrest. See County of Jefferson v. Renz, 231 Wis. 2d 293, 317, 603 N.W.2d 541 (1999). The court then notes that “[d]espite some prevailing views in this state, two drinks is not an insignificant amount of alcohol,” and might be enough to “push some individuals over the legal limit. Op., ¶21 (emphasis added).
In support of its conclusion that probable cause existed to justify the PBT test, the court relies on the facts previously noted that supported reasonable suspicion and Peterson’s performance on the FSTs. The court therein, rejects Peterson’s contention that her performance on the walk-and-turn test and the one-leg-stand test should have “disipated” the officer’s suspicion. Instead, the court states the the test results, overall, were not so one-sided to force the officer to terminate the investigation or to mean that the totality of the evidence short of probable cause needed to request a PBT.
