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County of Dodge v. Dittberner3/16/2000
APPEAL from a judgment of the circuit court for Dodge County: JOHN R. STORCK, Judge. Affirmed.
Curtis E. Dittberner appeals from a judgment entered upon a no contest plea to a charge of operating a motor vehicle while under the influence of an intoxicant (OMVWI). Prior to entering the plea, Dittberner filed a suppression motion, challenging the underlying stop and arrest. He claims that the circuit court erred in denying his motion because his detention by an off-duty police officer, in which that officer used physical force to prevent Dittberner from leaving the area, constituted an arrest without probable cause. We agree with Dittberner that under the facts of this case his detention by the use of physical force was an arrest. However, because we conclude that Dittberner's arrest was based on probable cause, we affirm.
BACKGROUND
. Corporal Todd Nehls, of the Dodge County Sheriff's Department, observed a black pick-up truck driving slowly and travelling in the middle of the road. Nehls was off-duty at the time. When the vehicle stopped for a stop sign, Nehls saw a beer can being thrown out the driver's side window. The vehicle then proceeded approximately a mile-and-a-half, and pulled into the parking lot of a local tavern.
. Nehls called the sheriff's department and reported that he suspected the driver was intoxicated. He followed the vehicle into the tavern's parking lot and as he approached the vehicle, Dittberner emerged from the driver's side of the truck. Nehls identified himself as an officer of the Dodge County Sheriff's Department and asked Dittberner for identification. In a loud and boisterous manner, Dittberner responded "yeah, you're fucking Nehls, you're a pig, I know who you are." Dittberner then said that he was going to go into the tavern to have a few drinks. Nehls advised Dittberner that he needed to stay out in the parking lot until another officer from the sheriff's department arrived.
. Dittberner tried several times to enter the tavern. On three occasions, Nehls physically restrained Dittberner from entering the tavern, including putting him into a headlock on one occasion. Throughout his encounter with Dittberner, Nehls observed that Dittberner was unsteady on his feet and kept losing his balance; his speech was loud and often vulgar; and there was a strong odor of intoxicants coming from his breath.
. Lieutenant Glenn Welles and Deputy Jeff Petersen of the Dodge County Sheriff's Office both arrived on the scene in response to Nehls's call. Petersen then administered field sobriety tests to Dittberner. After Dittberner failed several of the tests, he was told he was under arrest.
. Dittberner filed a motion to suppress, claiming that his detention by Nehls constituted an arrest, without probable cause. He claimed there was no probable cause until his field sobriety tests were completed. In denying Dittberner's motion, the circuit court concluded that Dittberner was not under arrest until after Petersen performed the field sobriety tests. The parties then entered into an agreement by which Dittberner would plead no contest to OMVWI on the condition that the District Attorney's Office, on behalf of Dodge County, would stipulate that his plea did not waive his right to appeal the decision on the suppression motion. Dittberner now appeals.
DISCUSSION
Standard of Review.
. When a suppression motion is reviewed, the circuit court's findings of fact will be sustained unless they are clearly erroneous. See State v. Roberts, 196 Wis. 2d 445, 452, 538 N.W.2d 825, 828 (Ct. App. 1995). However, we will independently determine whether the established facts sho
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