Defense win: Police didn’t have reasonable suspicion to detain driver to do field sobriety tests

State v. Michael Anthony Dotson, 2019AP1082-CR, District 3, 11/24/20 (one-judge decision; ineligible for publication); case activity (including briefs)

Though this is a “close case” (¶28), the objectively reasonable inferences from the totality of the facts and circumstances known to the officer who stopped Dotson’s car did not provide reasonable suspicion to believe that Dotson’s blood alcohol level exceeded the legal limits or that his ability to operate his vehicle was impaired. Thus, the officer’s detention of Dotson to conduct field sobriety tests was unlawful.

An officer stopped Dotson for a registration plate violation. It was after 1 a.m. and the officer had seen Dotson’s car parked at a local watering hole. Dotson acted suspiciously by smoking a cigarette, not rolling his window all the way down, and hesitating before complying with the officer’s request that Dotson step out of the car—a request made after the officer discovered a warrant for Dotson’s arrest. Once Dotson was outside the car, the officer smelled alcohol, and took him to a local hospital for FSTs and, after he failed those, a PBT and blood draw. (¶¶4-9).

¶15     We conclude that [Officer] Hock lacked the reasonable suspicion necessary to conduct FSTs. To begin, not every person who has consumed alcoholic beverages prior to operating a motor vehicle is “under the influence” of an intoxicant in violation of Wisconsin law. See Wis. J.I.—Criminal 2663. The law instead prohibits a person from driving with a PAC—which, as relevant here, is 0.08—or from driving under the influence of an intoxicant “to a degree which renders him or her incapable of safely driving.” Wis. Stat. §§ 340.01(46m); 346.63(1)(a), (b). Accordingly, we agree with Dotson that the critical inquiry here is whether Hock could reasonably suspect Dotson drove with a PAC or had consumed enough alcohol to impair his ability to drive. …. Although the circuit court concluded that Hock reasonably suspected Dotson “had been consuming alcohol,” that fact is insufficient by itself to provide Hock with reasonable suspicion to detain Dotson to undergo FSTs.

¶16     We agree with Dotson that the totality of the circumstances did not give rise to a reasonable suspicion that he was operating with a PAC. Any evidence about whether Dotson had actually consumed alcohol before driving, such as when and where he drank alcohol and the number of beverages he consumed, was suppressed because Hock did not administer Miranda warnings to Dotson after his arrest and prior to questioning. And, although Hock could smell alcohol on Dotson’s person, Hock could not recall if the odor was mild or strong. Further, Hock did not testify that Dotson exhibited any outward signs of intoxication or impairment; Hock testified that he did not observe Dotson having glassy or watery eyes, and Hock could not recall whether Dotson had slurred speech or difficulty with balance. Hock therefore had no reasonable basis to suspect that Dotson operated his vehicle with a PAC.

The court goes on to provide an extension explanation for rejecting the state’s arguments that the accumulated facts—time of night, Dotson’s having been at a bar, his behavior suggesting he was trying to conceal the odor of alcohol—support an inference of intoxication. (¶¶17-27).