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COURT OF APPEALS DECISION DATED AND FILED June 21, 2011 A. John Voelker Acting Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
Cir. Ct. No. 2009CT4480 |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT I |
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State of Wisconsin, Plaintiff-Respondent, v. Omar F. Ofarril-Valez, Defendant-Appellant. |
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APPEAL from a judgment of the circuit court for Milwaukee County: ellen r. bostrom, Judge. Affirmed.
¶1 BRENNAN, J.[1] Omar F. Ofarril-Valez appeals a judgment entered after the circuit court denied his suppression motion, arguing that the police officer lacked probable cause to arrest him for operating under the influence of an intoxicant and that therefore the blood test performed incident to arrest must be suppressed. We conclude that the police officer had probable cause for the arrest and affirm.
Background
¶2 Officer Tyler
Jaeger testified at the suppression hearing that at approximately 2:30 a.m., on
Saturday, September 19, 2009, he was on a routine patrol when he saw a blue
Ford Escort driving on South 76th Street going three or four miles an
hour over the speed limit. Officer
Jaeger, driving a marked squad car, followed the Escort, pacing its speed and
checking on the registration of the vehicle’s plates. The check revealed that the driver’s license
of the vehicle’s listed owner had been revoked.
Officer Jaeger determined that the sex and age of the owner listed on
the registration matched the driver. Officer
Jaeger then stopped the driver, Ofarril-Valez.
¶3 Officer Jaeger
noticed that Ofarril-Valez smelled of a “light odor of intoxicants,” which even
the french fries Ofarril-Valez was eating did not mask. Officer Jaeger testified that he also
observed that Ofarril-Valez’s eyes were glassy.
Ofarril-Valez at first told Officer Jaeger that he had not been drinking
but then said that he had one beer earlier in the evening. Believing Ofarril-Valez to be impaired,
Officer Jaeger asked him to step out of his vehicle. Officer Jaeger had to ask
Ofarril-Valez three times to get out of his vehicle before he complied.
¶4 Officer Jaeger
explained to Ofarril-Valez that he wanted him to perform a series of tests. Officer Jaeger testified that he had been
trained and certified in the administration of field sobriety tests. On the walk and turn test, before Officer
Jaeger could finish explaining the test, Ofarril-Valez started walking. Officer Jaeger testified that in his
experience an inability to follow directions indicated a subject was
impaired. He acknowledged that
Ofarril-Valez completed that test without other errors.
¶5 On the
one-legged stand test, during which the subject must stand on one leg for
thirty seconds, Officer Jaeger reported that Ofarril-Valez put his foot down at
the five second mark, then completed the test without further incident.
¶6 On the
horizontal gaze nystagmus (“HGN”) test, during which the subject is instructed
to follow the officer’s pen with his eyes and the officer observes the
subject’s pupils for bouncing or jerkiness, Officer Jaeger saw six of six
indicators of impairment. Ofarril-Valez
exhibited a lack of smooth pursuit in both the left and right pupils; he
presented with nystagmus at maximum deviation of both the left and right
pupils; and he presented with the onset of nystagmus prior to forty-five
degrees in both the left and right pupils.
¶7 Officer Jaeger
then asked Ofarril-Valez to perform a preliminary breath test (“PBT”). Ofarril-Valez blew faintly into the tube but
did not seal his lips around the tube. The
sample was insufficient for a reading, further indicating to Officer Jaeger
that Ofarril-Valez was impaired.
¶8 Officer Jaeger
testified that he then placed Ofarril-Valez under arrest for operating a motor vehicle
while under the influence of an intoxicant (“OWI”). Ofarril-Valez was conveyed to a hospital and
blood was drawn showing an alcohol concentration of 0.134%. He was then charged with OWI 2nd.
¶9 Ofarril-Valez
provided his account of the incident during his testimony at the suppression
hearing. Ofarril-Valez testified that
the officer was speaking too fast for him to understand and that he is still
learning English, explaining why he did not immediately get out of the vehicle
when the police officer asked him to and why he started the walk and turn test
too early. Ofarril-Valez also testified
that he dropped his foot during the one-legged stand test because of an old leg
tendon injury.
¶10 Ofarril-Valez
also testified that he told the officer that he drank one beer but that he
never told Officer Jaeger that he had not been drinking. However, at the suppression hearing,
Ofarril-Valez admitted that he had actually consumed three beers between 1:00
a.m. and 1:50 a.m. As to the PBT,
Ofarril-Valez testified that he told Officer Jaeger that he was asthmatic and
could not breathe from his nose, which made it difficult to breathe into the
tube. He said that when he told Officer
Jaeger that he had this same problem when taking a PBT on a prior occasion, Officer
Jaeger got mad and threw the plastic container on the floor and told him he was
under arrest.
¶11 The circuit court
denied Ofarril-Valez’s suppression motion and his motion for
reconsideration. Ofarril-Valez pled
guilty to OWI 2nd and was sentenced to forty days at the House of Correction
with Huber privileges. The court imposed
the mandatory minimum fine, driver’s license revocation and ignition interlock. The circuit court then stayed his jail
sentence pending appeal.
Standard Of Review
¶12 We review a
denial of a motion to suppress by first upholding the circuit court’s findings
of fact “unless they are against the great weight and clear preponderance of
the evidence.” State v. Jackson, 147
Wis. 2d 824, 829, 434 N.W.2d 386 (1989).
However, we review the circuit court’s application of constitutional
principles to the findings of fact de
novo. State v. Vorburger,
2002 WI 105, ¶32, 255 Wis. 2d 537, 648 N.W.2d 829.
Discussion
¶13 Ofarril-Valez
contends that the police officer did not have probable cause to arrest him and
therefore the blood test results must be suppressed. We disagree.
¶14 The State bears
the burden of proving that the police officer had probable cause to arrest. See
State
v. Lange, 2009 WI 49, ¶19, 317 Wis. 2d 383, 766 N.W.2d 551. Observing that a warrantless arrest is not
lawful except when supported by probable cause, the Wisconsin Supreme Court
defined probable cause to arrest for operating under the influence as “that
quantum of evidence within the arresting officer’s knowledge at the time of the
arrest that would lead a reasonable law enforcement officer to believe that the
defendant was operating a motor vehicle while under the influence of an
intoxicant.” Id. The court noted that probable cause is
determined by examining the totality of the circumstances on a case-by-case
basis. Id., ¶20. It is an objective standard and a “‘flexible,
common-sense measure of the plausibility of particular conclusions about human
behavior.’” Id. (footnote and
citation omitted). The quantum of
evidence necessary has been described by the court as “‘less than that for
guilt but is more than bare suspicion.’” State v. Dunn, 121 Wis. 2d 389, 396,
359 N.W.2d 151 (1984) (citation omitted).
¶15 The Wisconsin
Supreme Court held in Lange that the law enforcement
officer had probable cause to believe that the defendant was operating a motor
vehicle while under the influence of an intoxicant. Id., 317 Wis. 2d 383, ¶5.
While the facts in Lange differ from the
facts here, the case guides our decision.
¶16 In Lange,
the police observed Lange driving unlawfully and ultimately crashing his
vehicle. Id., ¶9. Lange was found unconscious and injured and
was conveyed to a hospital. Id.,
¶¶11, 14. While he was still unconscious
and at the hospital, the police learned that Lange had a previous conviction
for operating under the influence. Id.,
¶16. Lange’s blood was drawn and he was
arrested. Id., ¶17.
¶17 Lange argued that
the blood test results should be suppressed because there were none of the
usual indicia of intoxication, such as an admission of drinking by the driver,
no odors of intoxicants, no slurred speech or difficulty balancing, and no
suggestive sobriety tests. Id.,
¶21. Nonetheless, the Wisconsin Supreme Court
found that under the totality of the circumstances, a reasonable police officer
would believe Lange was driving under the influence, citing five factors: (1) the dangerousness of his driving; (2) the
experience of the police officer; (3) the time of morning, 3:00 a.m.; (4) the
fact of Lange’s prior OWI conviction; and (5) the police officers’ inability
to otherwise investigate due to the circumstances of the crash. Id., ¶¶23-35.
¶18 Like
Ofarril-Valez does here, Lange argued that the omission of facts typically
found in other cases meant that the police lacked probable cause for his
arrest. However, the supreme court
specifically noted that “[a]lthough evidence of intoxicant usage—such as odors,
an admission, or containers—ordinarily exists in drunk driving cases and
strengthens the existence of probable cause, such evidence is not required. The totality of the circumstances is the
test.” Id., ¶37.
¶19 Similarly here, and
contrary to Ofarril-Valez’s assertion, the omission of some factors typically
present in OWI cases is not dispositive.
The quantum of evidence needed to support probable cause to arrest is
less than that for conviction but more than a mere possibility. See
Dunn,
121 Wis. 2d at 396. That is what is
present here.
¶20 We conclude that
the following nine indicia of impairment demonstrate that, under the totality
of the evidence, a reasonable police officer would believe that Ofarril-Valez
was operating under the influence of an intoxicant.
¶21 First, the time
of the driving and stop, 2:30 a.m. on a Saturday morning, is a relevant factor
that a reasonable police officer would consider in making the probable cause
determination. As the Wisconsin Supreme
Court found in Lange, the time of the driving, 3:00 a.m., bar-time on a
weekend, was relevant: “It is a matter
of common knowledge that people tend to drink during the weekend when they do
not have to go to work the following morning.” Id., 317 Wis. 2d 383, ¶32.
¶22 Second, when
Officer Jaeger was driving his marked squad car behind Ofarril-Valez, pacing
his speed, he observed that Ofarril-Valez was driving three to four miles an
hour over the posted speed limit. A
reasonable police officer could find that a driver was impaired from the fact
that the driver failed to keep his speed under the posted limit while being
followed by a police officer in a marked squad car. Common sense indicates that most drivers are
on their very best behavior when knowingly being followed by a police officer.
¶23 Third, once he stopped
Ofarril-Valez, Officer Jaeger smelled intoxicants, and although he described it
as a “light odor,” he noted that the french fries Ofarril-Valez was eating did
not mask the odor.
¶24 Fourth,
Ofarril-Valez admitted to Officer Jaeger at the scene that he had consumed one
beer earlier. At the suppression hearing,
Ofarril-Valez admitted he had actually consumed three beers shortly before the
stop. Regardless, Ofarril‑Valez’s
admission to drinking the night of the arrest confirmed Officer Jaeger’s suspicion
that he smelled alcohol. The
acknowledgment that the odor was alcohol, coupled with the strength of the odor
over the odor of french fries, was another relevant factor in Officer Jaeger’s
probable cause analysis.
¶25 Fifth, the
officer testified that Ofarril-Valez’s eyes were glassy.
¶26 Sixth, Officer
Jaeger had to ask Ofarril-Valez three times to get out of the vehicle before he
complied. Although Ofarril-Valez
testified at the suppression hearing that his delay was due to English language
difficulties and that he told the police officer to talk slower, a reasonable
police officer would have found the delay relevant and given it some weight in
assessing the totality of the circumstances.
¶27 Seventh, Officer
Jaeger testified that in his experience Ofarril-Valez’s early start on the walk
and turn test was unusual in sober individuals, but he had seen it before with
impaired individuals. Furthermore,
Officer Jaeger testified that Ofarril‑Valez’s one foot drop on the one-legged
stand test was an indication of impairment.
Although Ofarril-Valez testified that the reason he dropped his foot on
the one-legged stand test was because of an old tendon injury, he admitted he
never told the police officer about his injury.
From a reasonable police officer’s perspective, both test results
reasonably indicated impairment.
¶28 Eighth, it is
undisputed that Ofarril-Valez failed all six indicators on the HGN test. He lacked smooth pursuit in both the left and
right pupils; presented with nystagmus at maximum deviation of both the left
and right pupils; and presented with the onset of nystagmus prior to forty-five
degrees in both the left and right pupils.
Officer Jaeger reasonably relied on these indicators of probable cause
to arrest for operating under the influence of an intoxicant.
¶29 Ninth, the
insufficient sample on the PBT was an indication that Ofarril-Valez either
intentionally subverted the test, or again, could not follow directions. Ofarril-Valez’s statement that he had failed
the test on a prior occasion indicated that he had been suspected of operating
under the influence before and that he knew of the importance of giving a proper
air sample and the consequence of failing to do so—all relevant factors in the
officer’s determination of probable cause.
¶30 Ofarril-Valez
argues on appeal that it was not reasonable for Officer Jaeger to conclude that
the above nine observations added up to probable cause of impairment when faced
with Ofarril-Valez’s language difficulties, tendon injury and asthma. Essentially, this is an argument as to the
weight to be ascribed to these factors. He
argues that the factors present nothing more than a possibility of impairment,
which is insufficient for probable cause to arrest. Ofarril-Valez argues that comparing the facts
here to those in County of Jefferson v. Renz, 222 Wis. 2d 424, 588 N.W.2d 267
(Ct. App. 1998) (“Renz I”), overruled by
County
of Jefferson v. Renz, 231 Wis. 2d 293, 603 N.W.2d 541 (1999) (“Renz
II”), and State v. McDonald, No. 2010AP1045-CR, 2010 WL 4643723 (Ct. App.
Nov. 18, 2010) (unpublished), show that Officer Jaeger lacked probable cause to
arrest.
¶31 Ofarril-Valez’s
reliance on Renz I is misplaced because even if we assume, without
deciding, that Renz I is still “good law,” it is distinguishable from the
facts here.[2]
¶32 In Renz
I, this court reversed an OWI conviction, concluding that: (1) Wis.
Stat. § 343.303 required probable cause to arrest before a
defendant could be asked to take a PBT; and (2) the officer lacked
probable cause to arrest Renz. Renz
I, 222 Wis. 2d at 427. However, the Wisconsin Supreme Court reversed,
holding that the statute did not require probable cause to arrest before
administration of a PBT. Renz
II, 231 Wis. 2d at 317. The sole
issue on appeal to the supreme court in Renz II was the issue of the quantum
of evidence necessary for the PBT, not arrest.
Id. at 295.
¶33 The facts that
the court of appeals found insufficient for probable cause to arrest in Renz
I were a strong odor of intoxicants, an admission to drinking three
beers earlier in the evening, an inability to hold his foot up for thirty
seconds on the one-legged stand test, unsteadiness in the heel-to-toe test, and
an inability to touch the tip of his nose with his left finger during the
finger-to-nose test. Id.,
222 Wis. 2d at 428, 444-47.
¶34 Here, there are
more and stronger indicia of impairment than existed in Renz I. First, in addition to some of the same
factors observed in Renz I, (odor of alcohol, admission of drinking and failure to
perform the one-legged test without incident) there were the following indicia
of impairment here: (1) Ofarril-Valez’s
persistence in driving over the speed limit, albeit three to four miles over,
when being followed by a marked squad car; (2) the fact that it was 2:30 a.m on
a Saturday morning; (3) Ofarril-Valez’s glassy eyes; (4) Ofarril-Valez’s
refusal or inability to follow directions on three occasions to exit the
vehicle; (5) Ofarril-Valez’s complete failure on the HGN test; and (6) Ofarril-Valez’s
failure to provide a proper breath sample on the PBT.
¶35 Next,
Ofarril-Valez’s reliance on McDonald is misplaced because,
first, McDonald is an unpublished decision and lacks precedential
value. See Wis. Stat.
§ 809.23(3) (unpublished opinions issued after July 1, 2009, have no
precedential value, although they may be cited as persuasive authority). Second, the holding in McDonald was that the
officer had probable cause to ask McDonald to take the PBT. Id., No. 2010AP1045-CR, 2010 WL
4643723, ¶1. Ofarril-Valez seeks to
elevate dicta in this unpublished case to precedent for the quantum of evidence
needed for arrest. We will not do so. Additionally, we note that the indicia of
probable cause here exceed those in McDonald. See id., ¶¶2-5.
¶36 Even if
Ofarril-Valez’s delay in getting out of the car and his false start on the walk
and turn test were explained by language difficulties, a reasonable officer had
ample other indicia of impairment to conclude Ofarril-Valez was impaired. As the Wisconsin Supreme Court stated in Lange,
the evidence need
not conclusively prove that the defendant was intoxicated. But although probable cause must amount to “more than a possibility or suspicion that the defendant committed an offense,” the evidence required to establish probable cause “need not reach the level of proof beyond a reasonable doubt or even that guilt is more likely than not.”
Id., 317 Wis. 2d 383, ¶38 (footnote and citation omitted). That is the case here.
By the Court.—Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
[1] This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2)(f) (2009-10). All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.
[2] In
County
of Jefferson v. Renz, 231 Wis. 2d 293, 603 N.W.2d 541 (1999) (“Renz
II”), the Wisconsin Supreme Court reversed the court of appeals’
decision in County of Jefferson v. Renz, 222 Wis. 2d 424, 588 N.W.2d 267
(Ct. App. 1998) (“Renz I”), which Ofarril-Valez relies on, and remanded Renz
I for re-entry of the judgment of conviction. See
Renz
II, 231 Wis. 2d at 317. We decline
to address whether Ofarril-Valez is correct that the court of appeals’ holding
in Renz
I as to the insufficiency of the probable cause for arrest still has precedential
value. See State v. Blalock, 150