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City of Appleton v. Schleinz8/31/2004
On July 4, 2003, at approximately 9:15 p.m., officer Nathan Mrnak was driving in his squad car when he heard an engine revving and noticed a car moving toward him at a high rate of speed. He did not get a radar reading on the car, but visually estimated the car's speed at forty-five to fifty-five miles per hour in a thirty-mile-per-hour zone. Mrnak stopped the car and identified the driver as Schleinz.
. When talking to Schleinz, Mrnak smelled the odor of an intoxicant and observed that Schleinz's eyes were glassy. Mrnak asked Schleinz if he had been drinking. Schleinz replied that he had a couple of drinks at a local bar. Based on this information, Mrnak believed that Schleinz was operating under the influence and called for backup. Before backup arrived, Mrnak asked Schleinz to perform a PBT, which Schleinz did. Afterwards, once backup arrived, Mrnak administered field sobriety tests. Based on the results of these tests, Mrnak arrested Schleinz for operating while under the influence of an intoxicant. Schleinz was subsequently charged with operating a motor vehicle while under the influence of an intoxicant as well as operating with a prohibited alcohol concentration.
. Before trial, Schleinz moved to suppress all evidence obtained after Mrnak administered the PBT. Schleinz argues that Mrnak needed probable cause to administer the PBT. He contended that because Mrnak administered the PBT before the field testing, Mrnak did not have probable cause to administer the PBT. Thus, Schleinz maintains he was effectively arrested without probable cause and all evidence obtained thereafter is not admissible. The court agreed that Mrnak should have completed field sobriety testing before the PBT and that there was no probable cause to administer the PBT. However, the court determined that the error was of no consequence because Mrnak would have done the field sobriety tests anyway. Thus, Mrnak gained no advantage by administering the PBT before the field sobriety tests. Furthermore, the court concluded that administering the PBT did not amount to an arrest. At most, the court concluded that the PBT would have to be excluded for purposes of assessing whether Mrnak had probable cause to arrest Schleinz. However, the evidence obtained after the PBT would not be excluded. The court therefore denied Schleinz's motion.
. Schleinz stipulated that if the results of the field sobriety tests were not suppressed, there was probable cause to arrest him. The court found him guilty of operating a motor vehicle while intoxicated. The charge of operating with a prohibited alcohol concentration was dismissed.
DISCUSSION
. When reviewing the denial of a motion to suppress evidence, we will uphold the circuit court's findings of fact unless they are clearly erroneous. State v. Eckert, 203 Wis. 2d 497, 518, 553 N.W.2d 539 (Ct. App. 1996); see also Wis. Stat. § 805.17(2). However, we will independently determine whether the facts found by the circuit court satisfy applicable statutory and constitutional provisions. State v. Ellenbecker, 159 Wis. 2d 91, 94, 464 N.W.2d 427 (Ct. App. 1990).
. Schleinz's argument stems from Wis. Stat. § 343.303, which states that before an officer administers a PBT, the officer must have "probable cause to believe that the person" is driving while under the influence. Schleinz maintains that because Mrnak administered the PBT before field sobriety tests, he did not have probable cause to believe Schleinz was driving while under the influence. Schleinz contends that the phrase "probable cause" in the statute means that the officer must have probable cause to arrest a driver before the officer administers the PBT. Schleinz argues that because Mrnak administ
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