 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
[T] State v. Nielson5/1/2003
. Steven W. Nielson appeals the circuit court's order denying his motion to suppress evidence obtained from a preliminary breath test and the subsequent judgment of conviction for operating a motor vehicle while having a prohibited alcohol concentration, contrary to Wis. Stat. § 346.63(1)(b), third offense. Because we conclude that the arresting officer had probable cause to believe Nielson was operating a motor vehicle while intoxicated (OMVWI) and therefore, appropriately requested a preliminary breath test, and because Nielson consented to that test, we affirm the judgment and order of the circuit court.
BACKGROUND
. On August 19, 2001, at approximately at 2:00 a.m., Sauk County Deputy Sheriff Jon Hanson clocked Nielson operating a motorcycle at seventy-three miles per hour in a fifty-five mile per hour zone. Hanson stopped Nielson for speeding. When Nielson got off his motorcycle and approached, Hanson noticed that his eyes were red and bloodshot, that his speech was slurred, that he had an odor of intoxicants about him, and upon questioning, Nielson admitted that he had had "a couple of beers." Based on that contact, Hanson requested Nielson to complete field sobriety tests.
. Nielson had a small amount of difficulty with the alphabet test, but failed the one-leg stand test. Hanson, a fourteen-year law enforcement veteran with approximately eleven years as a road patrol officer, believed that Nielson was impaired and asked him to take a preliminary breath test by blowing into a device. Nielson did so. The preliminary breath test revealed an alcohol concentration of .15, and Nielson was then arrested for OMVWI, third offense. A subsequent blood test yielded an alcohol concentration of .191 and Nielson was cited for operating with a prohibited alcohol concentration (PAC).
. Nielson moved to suppress the results of the breath test and the circuit court denied his motion. A jury found him guilty of both OMVWI and operating a vehicle with a PAC. The circuit court entered a conviction for PAC, a violation of Wis. Stat. § 346.63(1)(b), third offense.
DISCUSSION
Standard of Review.
. The circuit court's findings relative to whether Hanson had probable cause to request a preliminary breath test and whether Nielson consented to taking the test are drawn from Hanson's observations, as he was the only witness at the suppression hearing. We will not overturn factual findings of the circuit court unless they are clearly erroneous. State v. Richardson, 156 Wis. 2d 128, 137, 456 N.W.2d 830, 833 (1990). However, whether the facts as found are sufficient to satisfy a statutory standard and whether a defendant's consent was voluntary are questions of law that we review de novo. County of Jefferson v. Renz, 231 Wis. 2d 293, 316, 603 N.W.2d 541, 552 (1999); State v. Phillips, 218 Wis. 2d 180, 197-98, 577 N.W.2d 794, 802 (1998).
Probable Cause Required By Wis. Stat. § 343.303.
. Nielson challenges whether there was probable cause for the officer to request a preliminary breath test pursuant to Wis. Stat. § 343.303. The supreme court has interpreted the level of probable cause required for an officer to request a preliminary breath test under § 343.303 as a lesser amount of proof than probable cause to arrest. Renz, 231 Wis. 2d at 315-16, 603 N.W.2d at 551-52. A driver can refuse to take a preliminary breath test, but if he does so, the refusal can be used as an inference of guilt. State v. Babbitt, 188 Wis. 2d 349, 358, 525 N.W.2d 102, 105 (Ct. App. 1994).
. Prior to requesting the preliminary breath test, Hanson noticed that Nielson was driving seventeen miles an hour over the posted spee
Page 1 2 Wisconsin DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|