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County of Jefferson v. Renz12/22/1999
cer instructed the defendant to stand with his feet together and his arms directly down at his sides. The defendant was then asked to raise one leg directly out in front of him about six inches off the ground and count from 1001 to 1030 while watching his foot. At 1018, he put his foot down, raised it again, and restarted his count from 1010. He was able to complete the count from 1010 to 1030 without putting his foot down again. The DOT manual lists four standard clues of intoxication to watch for on this test; the defendant only exhibited one clue, putting the foot down.
. The third test was the heel-to-toe walking test. The officer instructed the defendant to walk nine steps on an imaginary line, heel to toe, with his arms directly down at his sides, then to turn back and walk another nine steps. The defendant left a half inch to an inch of space between his heel and toe on all of the steps. On his way back, the defendant stepped off the imaginary line on step seven. He then restarted and completed the test. The manual lists eight possible clues of intoxication for this test; the defendant exhibited two of these, stepping off of the line, and leaving more than a half inch between steps. The officer also observed that the defendant swayed from left to right while performing the test, but because swaying is not one of the clues in the manual, the officer did not account for this in calculating the standardized test. He did, however, consider it to be an indicator of intoxication.
. The fourth test was the finger-to-nose test. This test was not from the manual, but the officer had learned it in his recruit class and through training at the sheriff's department. He instructed the defendant to stand with his feet together, arms out to his sides, with fingers extended. He was then supposed to tilt his head back, close his eyes, and touch the tip of his nose, first with his right index finger, then with his left. The defendant touched the tip of his nose with his right index finger, but touched the upper bridge of his nose with his left.
. The fifth test was another standardized test, the horizontal gaze nystagmus (HGN) test, which the officer was certified to perform after twenty-four hours of training. The test requires a subject to stand with his or her feet together and arms down and follow the tip of a pen with his or her eyes as the officer moves the pen from one side to the other. The specially trained officer watches for six "clues" of intoxication, relating to a particular kind of jerkiness in the eyes. The defendant exhibited all six clues. Based on his training, the officer believed that this indicated a blood alcohol level of at least .10.
. After administering these tests, the officer asked the defendant if he would submit to a PBT. The defendant agreed. The PBT indicated his blood alcohol level was .18. The officer then placed the defendant under arrest for OWI in violation of Jefferson County ordinance 83.16, adopting Wis. Stat. § 346.63(1)(a). In addition, after blood tests had been performed, the defendant was cited with violation of the county's ordinance adopting the PAC statute, Wis. Stat. § 346.63(1)(b).
. Through his attorney, the defendant filed various motions objecting to the arrest and to the evidence against him, including a motion to suppress evidence because of an unlawful detention and arrest. In that motion, he argued that the officer lacked the requisite probable cause to request a PBT under Wis. Stat. § 343.303 and that the PBT result therefore could not be considered in the determination of whether there was probable cause for the arrest. At the motion hearing Judge Ullsvik sustained an objection to the officer's testimony
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