|
COURT OF
APPEALS DECISION DATED AND
RELEASED May
23, 1996 |
NOTICE |
|
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-3342-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
WILLIAM
E. STEVENSON,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Dane County: RICHARD J. CALLAWAY, Judge.
Affirmed.
SUNDBY,
J. In a trial to the court, the court found
defendant-appellant William Stevenson guilty of operating a motor vehicle while
under the influence, second offense, contrary to § 346.63(1)(a), Stats.
The issue which Stevenson presents was not presented at trial. In a pre-trial motion, Stevenson sought to
"suppress" evidence that he had refused to submit to field sobriety
tests. Stevenson's "suppression"
theory was that the police lacked probable cause to arrest him and could not
gain probable cause from involuntary field sobriety tests. We[1]
conclude that the police did have probable cause to arrest Stevenson and affirm
the judgment.
On
January 29, 1994, at approximately 12:56 a.m., Madison police officer Jane
Stoklasa was dispatched to investigate a two-car accident at the intersection
of West Washington Avenue and Broom Street.
At the suppression hearing, Officer Stoklasa testified that Stevenson
smelled of intoxicants; his speech was slurred; his eyes were very bloodshot
and half-closed; his face was red; he had difficulty maintaining his balance;
and his answers to some of her questions were not responsive.
Because
of the road conditions, Officer Stoklasa transported Stevenson to the Madison
police station approximately four blocks away to conduct field sobriety
tests. Stevenson repeatedly stated he
wished his attorney to be present.
At
the station, Stevenson refused to perform field sobriety tests, reiterating
that he wasn't going to do anything without his attorney present. Officer Stoklasa then informed Stevenson
that he was under arrest for operating a motor vehicle while under the
influence.
At
close of testimony at the suppression hearing, the trial court found that
Officer Stoklasa had probable cause to arrest Stevenson for operating while
under the influence. However, the court
did not base its finding of probable cause on Stevenson's failure to perform
the field sobriety tests. The court
held:
The Court will deny the motion to suppress. Certainly there was probable cause. This officer ... testified that within a few
seconds of her arriving, she smelled an odor of intoxicants, poor balance and
slurred speech, and having to ask several times to repeat, to discover what
some of the things were that occurred.
The
thrust of Stevenson's argument is that the police officer did not have probable
cause to arrest him without conducting field sobriety tests and that he could
not be compelled to perform those tests.
We agree that the defendant could not be required to perform field
sobriety tests. However, Officer
Stoklasa had ample evidence to arrest defendant for operating while under the
influence. Field sobriety tests are
merely evidence. It is customary
procedure for the police to conduct field sobriety tests, not because the
defendant is entitled to have such tests performed or because the police lack
probable cause to arrest without such tests, but simply because the results of
field sobriety tests provide strong evidence of intoxication. However, where an operator refuses to
perform field sobriety tests, the arresting officer may still arrest the
operator if the officer has probable cause to arrest. In this case, the trial court correctly concluded that Officer
Stoklasa had probable cause to arrest Stevenson based on her personal observations
of his condition and behavior.
Stevenson
claims that under Terry v. Ohio, 392 U.S. 1 (1968), and
Wisconsin's codification of Terry, § 968.24, Stats., a police investigation must
take place where the person is stopped.
Stevenson argues that the United States Supreme Court on multiple
occasions has emphasized that police may investigate a person only at the site
of the detention, not at the police station.
See Dunaway v. New York, 442 U.S. 200, 212 (1979); Hayes
v. Florida, 470 U.S. 811 (1985); Brown v. Illinois, 422
U.S. 590 (1975). However, these cases
involved situations in which the police lacked probable cause to arrest the
defendant. That is not Stevenson's
case; Officer Stoklasa could have arrested Stevenson at the scene of the
accident and transported him to the police station. The performance of field sobriety tests not only could have aided
the officer in her investigation but could have substantiated Stevenson's claim
that he was not operating while under the influence. If, as is implicit in his argument, he was not intoxicated, the
field sobriety tests would presumably have cleared him and he would not have
been arrested. By refusing to submit to
field sobriety tests, Stevenson could not erase the observations of his
personal condition and behavior made by Officer Stoklasa. It was upon those observations that
Stevenson was convicted, not the officer's unsuccessful attempt to require
Stevenson to perform field sobriety tests.
By
the Court.—Judgment affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.