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Town of Dunn v. Woodman9/16/1999
Marilyn L. Graves Clerk, Court of Appeals of Wisconsin
APPEAL from an order of the circuit court for Dane County: ANGELA B. BARTELL, Judge. Affirmed.
Michael L. Woodman appeals from an order of the Dane County Circuit Court affirming his conviction in the Town of Dunn Municipal Court for operating a motor vehicle while under the influence of an intoxicant and speeding. Woodman argues that his arrest was not based on probable cause because the Town did not demonstrate that the field sobriety tests he performed were probative of whether he had been driving while intoxicated. We disagree and affirm.
I. Background
A few minutes after midnight on September 27, 1998, Town of Dunn Police Deputy Jeffrey R. Thiel observed a car travelling fifty-five miles per hour on a road with a thirty-five mile per hour speed limit. Thiel followed the car and saw it swerve across the road three or four times. Thiel pulled the car over and observed two people inside. He informed the driver, Woodman, that he had been speeding. As Thiel spoke with Woodman, he smelled alcohol on Woodman's breath and noticed that his eyes were red. Woodman said that he had consumed about twelve beers roughly twelve hours earlier. Thiel asked Woodman to step out of the car and perform several field sobriety tests.
Thiel administered three sobriety tests: the horizontal gaze nystagmus test (HGN), the walk-and-turn test and the one-leg stand test. During the HGN, in which Thiel checked whether Woodman's eyes could track smoothly, Woodman did not stand still, instead swaying back and forth. Thiel then administered the walk-and-turn test, in which Woodman was to listen to the instructions, and then count out loud as he took nine heel-to-toe steps out and nine steps back. Woodman began before the instructions were finished, repeated the number four while counting, and stopped at seven steps on the way out and at five steps on the way back. For the one-leg stand test, Thiel told Woodman to stand on one leg, with his other leg in front of him, six inches off the ground, and to count out loud from 1001 to 1030. Woodman stood with his right foot one inch off the ground and counted to 1007. He then put his foot down, picked it up again, counted from nine to twelve, put his foot down again, and picked it up one more time, counting from thirteen to fifteen.
After administering a preliminary breath test, Thiel placed Woodman under arrest. After a trial, the Town of Dunn Municipal Court convicted Woodman of operating a motor vehicle while under the influence of an intoxicant, contrary to Town of Dunn Ordinance No. 19.01, which adopts § 346.63(1)(a), Stats., and speeding, contrary to § 346.57(4)(g), Stats. Woodman appealed to the Dane County Circuit Court. The circuit court affirmed the judgment of the municipal court, concluding that Thiel had probable cause to arrest Woodman and that there was sufficient evidence to sustain the conviction. Woodman appeals.
II. Analysis
Woodman argues that the trial court erred by concluding that Thiel had probable cause to arrest him for operating a motor vehicle while under the influence of an intoxicant. Woodman claims that the field sobriety tests Thiel administered cannot be part of the probable cause analysis because the Town of Dunn did not establish that the tests were probative of whether his ability to drive was impaired by alcohol consumption. Without the sobriety tests, Woodman asserts, Thiel did not have probable cause.
Whether undisputed facts constitute probable cause to arrest is a question of law that we review de novo. See State v. Babbitt, 188 Wis.2d 349, 356, 525 N.W.2d 102, 104 (Ct. App. 1994). We e
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