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State v. Foskett6/22/2000
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
APPEAL from a judgment of the circuit court for Jefferson County: JOHN ULLSVIK, Judge.
Affirmed.
. Jerry Foskett appeals from a judgment convicting him of driving while intoxicated (third offense). Specifically, he challenges the circuit court's denial of his motion to suppress evidence of his arrest on grounds that the officer lacked probable cause to arrest him. We disagree and affirm the judgment.
. The facts are not in dispute. City of Jefferson Police Officer Scott Durkee observed Foskett's car exceeding the speed limit-driving 38 m.p.h. in a 25 m.p.h. zone-at 1:30 a.m. Durkee stopped Foskett without incident and observed that he smelled "moderate to strong " of intoxicants, and that his eyes were "glassy." When asked whether he had been drinking, Foskett initially denied consuming any alcohol, but later said that he had had "one beer." Foskett agreed to submit to field sobriety testing and Durkee noted that he failed the Horizontal Gaze Nystagmus test. On the "Walk and Turn" test, Durkee said that Foskett had stepped to the left of the straight line twice and failed to turn in the manner requested and demonstrated by Durkee. He also failed to count his steps as he had been instructed. Then, while not "failing" them, Foskett had some difficulty performing two other coordination tests. Based on this evidence, and his own training and experience, Durkee believed that Foskett's ability to safely operate his car may have been impaired and arrested him.
. We said in State v. Pozo, 198 Wis. 2d 705, 711, 544 N.W.2d 228 (Ct. App. 1995), that:
Probable cause [to arrest] is neither a technical nor a legalistic concept; rather, it is a flexible, common-sense measure of the plausibility of particular conclusions about human behavior-conclusions that need not be unequivocally correct or even more likely correct than not. It is enough if they are sufficiently probable that reasonable people-not legal technicians-would be justified in acting on them in the practical affairs of everyday life. (Citations and quoted sources omitted.)
We have also recognized that:
Probable cause to arrest exists where the officer, at the time of the arrest, has knowledge of facts and circumstances sufficient to warrant a person of reasonable prudence to believe that the [person arrested] is committing, or has committed, an offense. As the very name implies, it is a test based on probabilities; and, as a result, the facts faced by the officer need only be sufficient to lead [him or her] to believe that guilt is more than a possibility. It is also a commonsense test. The probabilities with which it deals are not technical: They are the factual and practical considerations of everyday life on which reasonable and prudent men and women, not legal technicians, act. Dane County v. Sharpee, 154 Wis. 2d 515, 518, 453 N.W.2d 508 (Ct. App. 1990).
. Finally, the quantum of information which constitutes probable cause to arrest must be measured by the facts of the particular case, State v. Wilks, 117 Wis. 2d 495, 502, 345 N.W.2d 498 (Ct. App. 1984), and in making that measurement, we look to the totality of the circumstances within the officer's knowledge at the place and time of the arrest. State v. Koch, 175 Wis. 2d 684, 701, 499 N.W.2d 152 (1993).
. In his opening brief, Foskett cites State v. Seibel, 163 Wis. 2d 164, 471 N.W.2d 226 (1991), as "[holding on similar facts] that there was no probable cause to arrest [the defendant] for operating under the influence." He d
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