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State v. Kraus10/21/1999
Marilyn L. Graves Clerk, Court of Appeals of Wisconsin
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 § 808.10 and Rule 809.62, Stats.
APPEAL from an order of the circuit court for Jefferson County: WILLIAM F. HUE, Judge. Reversed and cause remanded with directions.
The State of Wisconsin appeals from a circuit court order suppressing the results of Lisa Kraus's chemical breath test. The State argues the circuit court erred in suppressing the results because the court incorrectly concluded that our decision in County of Jefferson v. Renz, 222 Wis.2d 424, 588 N.W.2d 267 (Ct. App. 1998), review granted, 222 Wis.2d 673, 589 N.W.2d 628 (Wis. Dec. 17, 1998) (No. 97-3512), articulated a new standard for evidence which may be used to establish probable cause to believe a driver is operating while intoxicated. Because we conclude that the circuit court did not correctly apply Renz, which clarified only the timing for a probable cause determination, and because the State has made a prima facie showing sufficient to establish that the officer had probable cause to believe Kraus was operating a vehicle while intoxicated before he requested a preliminary breath test (PBT), we reverse the circuit court's order and remand for further proceedings.
BACKGROUND
. At approximately 1:00 a.m., Wayne Wallace, a Lake Mills police officer, observed a car with a headlight burnt out. Wallace, who was travelling in a marked squad car, activated the emergency lights in order to stop Kraus, who was driving. He followed her for three blocks before she finally stopped. While speaking with Kraus, Wallace smelled the odor of intoxicants on her breath, observed that her eyes were glassy, and noticed that she was slurring her words.
. Wallace then asked Kraus to exit her vehicle. Initially, she attempted to get out of her vehicle while her seat belt was still fastened. Wallace also observed Kraus grab onto the door when she did exit her vehicle, in order to steady herself. Kraus told Wallace that she had had three drinks at a restaurant nearby.
. Wallace administered field sobriety tests to Kraus. Prior to beginning the alphabet test, Wallace directed Kraus to stand with her feet together and her arms at her sides while he explained the test, and he asked her to stay in that position while she performed the test. Although Kraus correctly recited the alphabet, Wallace noted that she did not stand with her feet together and she swayed back and forth while she recited, indicating poor balance.
. Wallace next asked Kraus to perform the finger dexterity test. He again directed her to stand with her feet together and her arms at her sides, while he demonstrated the test. Instead of maintaining that position, Kraus immediately began trying to touch her nose with her finger. This was not the test that Wallace wanted Kraus to perform, and he instructed her to wait until he completed his instructions before she began. He asked her to touch the tip of each of her fingers to the tip of her thumb while counting. While Wallace was demonstrating the test, Kraus began to mimic the demonstration and again had to be instructed to wait until she was told to start.
. During the instructions for the finger-to-nose test, Wallace again told Kraus to stand with her feet together with her arms at her sides, while he completed the instructions. However, Kraus began touching her nose. She was also instructed to start the test with her left
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