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State v. Foskett6/22/2000
oes not provide a page citation for the citation, however-nor does he respond to the State's assertion in its brief that such a holding does not appear anywhere in the Seibel opinion. Nor was any such holding apparent to us in our reading of the case. Indeed, Seibel had nothing to do with probable cause to arrest, but only with whether the police had a reasonable suspicion that the defendant's blood contained evidence of a crime that would justify ordering the taking of a blood sample in the absence of a search warrant. We consider Seibel as doing no more than concluding that, while none of the factors present in that case, considered separately, would give rise to the type of reasonable suspicion necessary for drawing a sample of a person's blood without a search warrant, taken together they would.
. What we have in this case is a combination of the following factors: (a) it was "bar time;" (b) Foskett was speeding; (c) his eyes were glassy; (d) there was a moderate to strong odor of intoxicants about his person; (e) he first denied, then admitted, consuming at least one alcoholic beverage; (f) he failed the HGN test; and (g) while not failing them, he performed somewhat erratically on several other field sobriety tests. We can't say that, considering these facts, Foskett's driving was in fact impaired by his consumption of alcohol-or even that it is more likely than not that it was. But, applying a "common-sense measure" of the plausibility of the conclusions drawn by Durkee in light of these facts, we believe they constituted probable cause for him to believe that Foskett's driving ability may have been impaired as a result of his alcohol consumption. In other words, probable cause existed for Foskett's arrest.
By the Court. -- Judgment affirmed.
This opinion will not be published. Wis. Stat. Rule 809.23(1)(b)5 (1997-98).
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