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State v. Johnson7/19/2000
Cornelia G. Clark Clerk, Court of Appeals of Wisconsin
APPEAL from a judgment of the circuit court for Walworth County: JAMES L. CARLSON, Judge. Affirmed.
. In this appeal, John C. Johnson raises several challenges to his conviction for a second-offense operating while intoxicated. First, he argues that probable cause is required to stop a driver suspected of violating a non-criminal traffic offense. Because all that is required is a reasonable suspicion, we reject this argument. Second, he asserts that the maneuver he completed on the highway was not a violation of the traffic laws; therefore, the officer did not have either reasonable suspicion or probable cause to conduct a stop. Because Johnson's maneuver was an illegal turn, we conclude that the officer had a reasonable suspicion to support a stop. Finally, Johnson contends that the failure to perform field sobriety tests bars the administration of a preliminary breath test (PBT) and the admission of the results to show probable cause for arrest. Given that the failure to perform field sobriety tests is not a fatal defect and that under the totality of the circumstances the officer had probable cause to believe Johnson was operating while intoxicated, we hold that the circuit court did not err in denying Johnson's motions to suppress. Therefore, we affirm.
. Lieutenant James A. Ritchie of the City of Delavan Police Department was on routine patrol in the business district at 2:15 a.m. when he observed a white Tahoe in an angled parking space adjacent to the eastbound traffic lane of Highway 11. The driver of the Tahoe backed out of the angled parking space across the eastbound traffic lane into the westbound traffic lane. The driver straightened the Tahoe and proceeded in a westerly direction. Ritchie concluded that the driver had made a prohibited turn in violation of Wis. Stat. § 346.33(1)(b) and activated his emergency lights to stop the Tahoe. The driver of the Tahoe did not immediately respond and finally stopped more than three blocks after Ritchie activated his emergency lights. Ritchie approached the vehicle and through a Wisconsin driver's license identified the driver as Johnson. Johnson became argumentative when the police officer told him he had been stopped for an illegal turn.
. During these discussions, Ritchie detected the odor of intoxicants emanating from the interior of the Tahoe. Because there were three people inside of the vehicle, he asked Johnson to step out. Once Johnson was outside of the Tahoe, the officer detected the odor of intoxicants "emitting directly from ... Johnson." He also observed that Johnson was unsteady in his movement and stance, had somewhat slurred speech and his eyes were bloodshot. When the officer asked Johnson if he had had anything to drink, Johnson responded, " robably too much." In response to a question of when did he have his last drink, Johnson said "two seconds" before the traffic stop. Because the traffic stop was on a hill, Ritchie decided not to conduct any field sobriety tests. When asked, Johnson voluntarily submitted to a PBT and the result was a blood alcohol concentration of 0.17 grams. Based upon all of this evidence, Ritchie placed Johnson under arrest for drunk driving and transported him to the police station where he refused to submit to the primary chemical test.
. Johnson was charged with his second offense of operating a motor vehicle while intoxicated in violation of Wis. Stat. §§ 346.63(1)(a) and 346.65(2). He moved to suppress the stop of the vehicle and all derivative evidence. After a combined motion and refusal hearing, the circuit court found that, under the totality of the circumstances, there was probable cause to
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