State v. Sarah A. Schmidt, 2017AP724-CR, District 2, 10/11/17 (one-judge decision; ineligible for publication); case activity (including briefs)
For operating while intoxicated, no less—even though there was scant evidence of impaired driving and the driver exhibited no slurred speech and apparently normal balance and motor coordination.
¶13 The following circumstances would lead a reasonable officer to believe, even when considered together with the factors emphasized by Schmidt, that she was driving while impaired. It was about 2:30 a.m., a time at which, as testified to by [Deputy] Metzger, a higher percentage of drivers than normal are under the influence of an intoxicant. See State v. Swanson, 164 Wis. 2d 437, 453 n.6, 475 N.W.2d 148 (1991), abrogated on other grounds by [State v.] Sykes, [2005 WI 48,] 279 Wis. 2d 742, ¶27[, 695 N.W.2d 277] (accident occurring at 2:00 a.m. is an indicia of driving while under the influence, as this is the time bars in Wisconsin close). Schmidt’s eyes were red and glassy; Schmidt offers no alternative explanation for this condition. Metzger detected a strong odor of alcohol and Schmidt admitted to having had three beers. See [State v.] Lange, [2009 WI 49,] 317 Wis. 2d 383, ¶37[, 766 N.W.2d 551] (the odor of alcohol and an admission to consuming it—evidence of intoxicant usage—are typical indicators in drunk driving cases and “strengthen[] the existence of probable cause.”). The HGN test indicated impairment, with Metzger observing six of six clues. Schmidt refused to give a preliminary breath test; such a refusal “strengthens the probable cause for an arrest.” State v. Rocha-Mayo, 2014 WI 57, ¶111, 355 Wis. 2d 85, 848 N.W.2d 832. Although not sufficient by itself to support a stop, Schmidt’s driving behavior—weaving within her lane—adds further support to a reasonable belief of impaired driving, as does the varying speed, and the undisputed grounds for the stop, exceeding the speed limit….
