 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
[T] State v. Lohry1/14/2004
. This is an appeal from a judgment convicting Sara L. Lohry of operating a motor vehicle while intoxicated, fourth offense, and an underlying order denying her motion to suppress evidence. Her claim on appeal is premised upon a phrase used over fifty years ago by the United States Supreme Court in Brinegar v. United States, 338 U.S. 160, 175-76 (1949), where the Court explained that probable cause includes information obtained by a police officer which is "reasonably trustworthy." Based on this phrase, Lohry argues that since probable cause to arrest her for OWI was based in part on field sobriety tests, and since the officer conducting the tests was not certified to conduct them, and since two of the tests she ostensibly failed are not approved for use by the National Highway Traffic Safety Administration, and since administration of such tests were subject to the officer's purely subjective indicators of what it takes to "pass" or "fail" a test, these tests were not reasonably trustworthy and, without them therefore, the officer had no probable cause to arrest her. We hold there was such probable cause and affirm.
. This court reviews a probable cause determination de novo. See State v. Babbitt, 188 Wis. 2d 349, 356, 525 N.W.2d 102 (Ct. App. 1994). In OWI cases, probable cause will be found "where the totality of the circumstances within the arresting officer's knowledge at the time of the arrest would lead a reasonable police officer to believe ... the defendant was operating a motor vehicle while under the influence of an intoxicant." State v. Nordness, 128 Wis. 2d 15, 35, 381 N.W.2d 300 (1986). This is a commonsense test, based on probabilities. See County of Dane v. Sharpee, 154 Wis. 2d 515, 518, 453 N.W.2d 508 (Ct. App. 1990). The facts need only be sufficient to lead a reasonable police officer to believe that guilt is more than a possibility. Id. Probable cause is neither a technical nor a legalistic concept; rather, it is a "flexible, common-sense measure of plausibility of particular conclusions about human behavior." State v. Petrone, 161 Wis. 2d 530, 547-48, 468 N.W.2d 676, cert. denied, 502 U.S. 925 (1991).
. The facts are as follows. A city of Fond du Lac police officer saw a vehicle stopped at a flashing yellow light. The vehicle stayed in that stopped position for about five seconds. This is what caught the officer's attention, as there was no other traffic that would have caused the vehicle to stop and remain stopped. The officer stated that there is no rule mandating vehicles to stop at flashing yellow lights; rather, they are to merely slow down.
. Next, the officer saw the vehicle proceed through the intersection at a high rate of speed. The officer followed and paced the vehicle. He estimated the vehicle speed to be between thirty-eight and forty miles per hour in a twenty-five mile-per-hour speed zone. Two blocks later, the vehicle stopped at a stoplight in the left-turn lane. The officer pulled in behind the vehicle. When the left-turn arrow came on, the vehicle pulled away from the intersection, turned left, squealed its tires and traveled westbound at a high rate of speed. The officer followed.
. Next, the officer observed the vehicle come up behind another westbound vehicle and begin to tailgate that vehicle. At that point, the officer had "seen enough" and initiated a traffic stop. The officer initiated contact with the driver, who was later identified as Lohry. While conversing with Lohry and obtaining her identification, the officer "could smell the odor of an alcoholic beverage on her breath, her speech was slurred, and upon looking into her eyes ... noticed that they were red and glossy." The officer asked if she had been drinking
Page 1 2 3 4 Wisconsin DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|