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State v. Kraus10/21/1999
d not equate with probable cause because, to him, unless he could consider all of the tests, his observations meant "nothing." Thus, given the evidence that the court permitted the officer to use in Renz, his own testimony cast doubt upon the existence of probable cause.
. The facts of this case differ markedly from the facts of Renz. Here, Wallace testified that he followed Kraus for approximately three blocks with his emergency lights activated before she finally stopped. Once stopped, he observed an odor of intoxicants on Kraus's breath; her eyes were glassy; and she was slurring her words. Wallace also observed that Kraus tried to exit her vehicle with her seat belt fastened and that she had difficulty with her balance, causing her to hold onto the car door as she exited the vehicle. Problems with balance also caused her to sway back and forth during several of the field sobriety tests. We have previously recognized that glassy eyes and poor balance are common indicators of intoxication. See State v. Gaudesi, 112 Wis.2d 213, 221, 332 N.W.2d 302, 305-06 (1983) (probable cause existed where a sheriff observed that a defendant's breath had an odor of alcohol, his eyes were red and glassy, and his balance was poor). Additionally, during the heel-to-toe test, Kraus had a four-inch gap between her heel and toe, as opposed to Renz's half-inch gap; and she continued to have these large gaps in five of ten steps. Further, she stopped during the heel-to-toe test after being instructed by Wallace not to do so. Finally, Kraus consistently and repeatedly failed to follow Wallace's instructions during the tests, even after repeated reminders from Wallace to listen to his instructions. These factors are sufficient to make a prima facie showing that there was probable cause to believe that Kraus was operating a vehicle while intoxicated.
. Because the factors which may be used for determining probable cause remain the same-it's just the timing of the probable cause determination that may be different from what the circuit court was accustomed to using-and based on our independent review of the evidence, we conclude there was sufficient proof to support a probable cause determination before Wallace asked Kraus to perform the PBT. Therefore, we reverse the circuit court's order suppressing the results of the intoxilyzer test. However, it appears from the record that the defense may not have presented all of its arguments relating to the suppression motion, due to the circuit court's decision to suppress the results because of its reading of Renz. Therefore, we remand this cause to the circuit court to enable it to permit defense counsel to fully present its case, if it has not already done so.
CONCLUSION
. Renz did not create a new standard of either the type of proof which is acceptable to sustain a determination of probable cause or a new quantum of proof requirement, but merely clarified the timing for a probable cause determination in relation to a request for a PBT. Therefore, we conclude that the State made a prima facie showing of probable cause to believe that Kraus was driving while intoxicated prior to Wallace's requesting the PBT, and we reverse the circuit court's order and remand for further proceedings.
By the Court. -- Order reversed and cause remanded with directions.
This opinion will not be published. See Rule 809.23(1)(b)4., Stats.
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