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[T] State v. Millard7/17/2003
. Dennis Millard appeals from a judgment convicting him of operating a motor vehicle while intoxicated, second offense, in violation of Wis. Stat. § 346.63(1)(a). Millard moved to suppress all evidence obtained during and subsequent to his arrest, asserting that the officer did not have reasonable suspicion to stop and detain him nor probable cause for his arrest. The court denied the motion and Millard pleaded no contest. The sole issue on appeal is whether probable cause to arrest Millard existed. Because we conclude that it did, we affirm.
BACKGROUND
. On November 30, 2001, at approximately 10:34 p.m., Officer Lonnie Drinkall received a dispatch call regarding a citizen complainant driving behind a possible drunk driver on Highway 14. When Drinkall caught up to the suspect, later identified as Dennis Millard, he observed Millard's vehicle straddle the centerline of the highway approximately four times. At this point, Drinkall activated his emergency lights and pulled Millard over. Traveling at roughly fifty miles per hour, Millard pulled over to the shoulder of the highway within approximately one hundred feet and then continued on the shoulder for another hundred feet before coming to a complete stop.
. Drinkall noted that Millard seemed to avoid eye contact while they spoke. When Millard eventually made eye contact with Drinkall, he appeared to be in a daze. Millard denied drinking at first, but admitted to having had a couple of drinks after Drinkall stated that he could smell alcohol on Millard's breath. Drinkall also noted that Millard's speech was slurred.
. Drinkall asked Millard to exit the vehicle so that he could conduct a few tests to see if Millard was okay to drive. When Millard got out of his vehicle, he stumbled backwards and used the vehicle to keep his balance. Millard continued to use the vehicle for balance by placing his hand on the bed of the truck as he walked.
. Drinkall first administered the horizontal gaze nystagmus test. Drinkall noted that both of Millard's eyes lacked smooth pursuit and observed the onset of nystagmus at maximum deviation in both eyes but did not complete the test because Millard began asking questions. Drinkall next gave Millard three opportunities to complete the walk-and-turn test. However, Millard could not complete more than one step. When he placed his right foot in front of his left, he immediately pulled it back to maintain his balance. The final test Drinkall administered was the one-leg-stand test. Millard raised his right foot but put it down almost immediately, only completing a count of 1,001. Drinkall terminated the test after Millard again failed to keep his foot up on his second attempt.
. At this point Drinkall placed Millard under arrest for operating a motor vehicle while intoxicated. At 11:59 p.m., over an hour after being pulled over, a blood sample revealed Millard's blood alcohol level to be .199 percent.
DISCUSSION
. When reviewing a trial court's determination regarding probable cause we use two standards of review. First, the trial court's finding of facts must be evaluated, and will be upheld unless they are clearly erroneous. State v. Richardson, 156 Wis. 2d 128, 137, 456 N.W.2d 830 (1990). Second, if we determine the trial court's finding of facts are not clearly erroneous, whether they satisfy constitutional standards is a question of law we review de novo. Id. at 137-38. In this case, the trial court's findings of fact are not clearly erroneous, therefore it is only necessary to consider whether those facts satisfy the constitutional standard of probable cause to arrest.
. Under both the United States and Wi
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