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State v. Salm10/14/1999
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 Marquette County: RICHARD O. WRIGHT, Judge. Affirmed.
Kevin M. Salm appeals from an order revoking his driving privileges for one year for wrongfully refusing to submit to an evidentiary chemical test of his breath pursuant to § 343.305, Stats. Salm contends that there was no probable cause to warrant his arrest for operating a motor vehicle while under the influence of an intoxicant or to administer a preliminary breath test (PBT). Therefore, Salm asserts that he did not wrongfully refuse to submit to evidentiary testing of his breath alcohol concentration. Because there was probable cause to arrest Salm, we affirm the circuit court judgment.
I.
BACKGROUND
. At approximately 11:30 p.m. on April 23, 1998, Deputy Scott Johnston of the Marquette County Sheriff's Department heard tires squealing and an engine revving in the Village of Neshkoro. He went to investigate and found fresh tire marks and thrown gravel on the roadway. Deputy Johnston then observed Salm doing "donuts" in the roadway and pulled him over on account of his reckless driving.
. While identifying Salm and his two passengers, Johnston noticed the odor of intoxicants emanating from the inside of Salm's vehicle. Johnston requested that Salm step out of his vehicle. He asked Salm why he was doing donuts, and Salm replied that he was showing off his new truck to his friends. Salm exhibited glassy, bloodshot eyes and slurred speech. Johnston noticed the odor of intoxicants on Salm's breath. Johnston asked Salm if he had been drinking, and Salm admitted that he had. Johnston then conducted various field sobriety tests.
. Johnston first conducted the horizontal gaze nystagmus (HGN) test. He observed a lack of smooth pursuit, onset of nystagmus prior to 45 degrees, and distinct nystagmus at maximum deviation in Salm's eyes. Deputy Johnston then administered the "walk and turn" test. While Johnston demonstrated this procedure, he instructed Salm to stand heel to toe-a position from which Salm broke away twice. Johnston noted that Salm did not step heel to toe several times and took ten steps, instead of nine as instructed. When he turned, he did not use choppy steps as instructed. Salm also did not step heel to toe several times on the way back from the turn.
. Johnston next administered the "one leg stand" test in which Salm was to count to thirty in "thousands" while raising one leg six inches in the air. Salm informed Deputy Johnston that he had a bad leg. During this procedure, Salm dropped his leg to the ground twice. Deputy Johnston then asked Salm to recite the alphabet-a task that he performed satisfactorily. Finally, Johnston had Salm take a PBT. It registered an alcohol level of .10.
. Johnston advised Salm that he was under arrest for OMVWI and transported him to the Marquette County Sheriff's Department. He issued Salm a citation for operating a motor vehicle while intoxicated and recited the "informing the accused" form, which included a request for Salm to submit to an evidentiary chemical test of his breath. Salm declined, saying that he had already been tested on the road and would not be tested again. Deputy Johnston informed him that the PBT was not admissible in court and again asked Salm to submit to evidentiary
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