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State v. Buzzell6/28/2001
APPEAL from a judgment of the circuit court for Dodge County: JOHN R. STORCK, Judge.
Affirmed.
. Stuart Buzzell appeals the judgment of conviction for operating a motor vehicle while under the influence of an intoxicant (OWI) contrary to Wis. Stat. § 346.63(1)(a). He contends the trial court erred in denying his motion to suppress evidence because, he asserts, the evidence was the result of an unlawful detention. We conclude the officer had the reasonable suspicion required for a lawful detention, and we therefore affirm.
BACKGROUND
. Robert Trevarthen, a City of Mayville police officer, was the only witness at the hearing. He testified as follows. On September 19, 1999, at approximately 1:00 a.m., he was westbound on Horicon Street in the City of Mayville. A white van, also going westbound, was directly in front of him. The van pulled onto the gravel shoulder of the road, without signaling, just west of the Piggly Wiggly Store. He had followed the van for a couple of blocks and observed nothing unusual about the driving. The van had maintained a regular position in the road, had not crossed the centerline, and had not weaved.
. The officer pulled over behind the van with his red and blue lights on to see if there was a problem and if he could render aid. He went to the passenger side and saw a female in the passenger seat and a male, later identified as Buzzell, in the driver's seat. The officer knocked on the window and, when it was rolled down, he asked if there was a problem, if everything was all right. One of them, probably the female passenger, said she was looking for some fingernail polish that was rolling around in the van. When the window was rolled down, the officer smelled a strong odor of intoxicants coming from the interior of the van. He asked if anybody had been consuming intoxicants inside the vehicle and both answered yes. The officer then asked Buzzell to step out and meet him at the back of the van, and Buzzell complied. The officer's purpose in asking Buzzell to get out of the van was to detain him in order to conduct a drunk driving investigation. The officer did not see Buzzell get out of the van, but he did see him walking to a position behind the van, and he did not observe Buzzell having any difficulty walking. Buzzell stood behind the van while the officer went back to his squad car for a short period of time. During this period of time the officer saw nothing out of the ordinary such as swaying, staggering, having trouble standing or doing anything else that might indicate some degree of intoxication. The officer had Buzzell perform field sobriety tests and asked him to submit to a preliminary breath test, which showed .08. The officer then arrested Buzzell for OWI.
. On cross-examination the officer acknowledged that pure alcohol has very little odor, and from the odor that he smells he cannot tell what, when or how much somebody has been drinking.
. The trial court decided the officer was performing a community caretaker function when he stopped behind the vehicle, approached it, and asked the occupants if there was a problem. The court concluded that the strong odor of intoxicants from the vehicle and the occupants' admission that they had been drinking created a basis for a reasonable suspicion that the driver was operating the vehicle under the influence of alcohol.
DISCUSSION
. An officer may stop a vehicle for questioning consistent with the Fourth Amendment protection against unreasonable searches and seizures when the officer has a reasonable suspicion that the occupants have engaged in or are engaging in criminal activity. Terry v. Ohio, 392 U.S. 1,
Page 1 2 3 Wisconsin DUI Attorneys
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