Cnty. of Buffalo v. Rich, 2020AP1526

CourtCourt of Appeals of Wisconsin
Writing for the CourtSTARK, P.J.
PartiesCounty of Buffalo, Plaintiff-Respondent, v. Kevin J. Rich, Defendant-Appellant.
Docket Number2020AP1526
Decision Date07 June 2022

County of Buffalo, Plaintiff-Respondent,

Kevin J. Rich, Defendant-Appellant.

No. 2020AP1526

Court of Appeals of Wisconsin, District III

June 7, 2022

This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.

APPEAL from an order of the circuit court for Buffalo County Nos. 2018TR248, 2018TR277: RIAN RADTKE, Judge.

STARK, P.J. [1]

¶1 Kevin Rich appeals from an order entered following a bench trial, finding him guilty of operating a motor vehicle while intoxicated


("OWI"), as a first offense, and operating a motor vehicle with a prohibited alcohol concentration ("PAC"), also as a first offense.[2] Rich argues that the circuit court erred in denying his motions to suppress evidence because the arresting deputy: (1) lacked reasonable suspicion to believe that Rich had committed, or was committing an offense sufficient to justify the traffic stop; (2) lacked reasonable suspicion to believe that Rich was impaired due to the consumption of alcohol, and therefore improperly expanded the scope of the traffic stop by requiring Rich to perform field sobriety tests; and (3) exceeded the scope of Rich's consent to an evidentiary breath test by taking more than one breath sample. We reject each of Rich's arguments and affirm.


¶2 Early in the morning on February 11, 2018, Deputy Mitchell Zastrow of the Buffalo County Sheriff's Office stopped the Jeep that Rich was operating after observing its erratic driving. Rich performed field sobriety tests and Zastrow subsequently placed Rich under arrest for OWI. After being read the Informing the Accused form, Rich consented to a breath test. It took Rich several attempts to provide sufficient samples and successfully complete the test. Rich was subsequently cited in Buffalo County case No. 2018TR277 with OWI, first offense, and he received a citation for PAC, also as a first offense, in Buffalo County case No. 2018TR248.

¶3 Rich brought two motions to suppress evidence related to his arrest. In the first motion he argued that (1) Zastrow lacked reasonable suspicion that


Rich had committed a traffic violation, and (2) Zastrow did not have an objectively reasonable suspicion-beyond the odor of alcohol-that Rich was under the influence of an intoxicant, and Zastrow therefore improperly expanded the scope of the stop to have Rich perform standardized field sobriety tests ("SFSTs"). In a separate suppression motion, Rich argued that he consented to a single evidentiary test of his breath but that two tests occurred, resulting in an improper search that exceeded the scope of his consent.

¶4 The circuit court held a hearing on Rich's motions, and Zastrow testified. Zastrow explained that on February 11, 2018, while positioned in a parking lot near the intersection of State Highways 54 and 35, he made a number of observations of a Jeep that he later learned was operated by Rich. Highway 35 has two lanes traveling in both directions for some distance north of the intersection at issue. The two northbound lanes then merge into a single lane some distance north of the intersection. The Jeep stopped at a red light behind a sedan. When the light turned green, the sedan made a left-hand turn northbound on Highway 35, while the Jeep remained at the light for a brief period of time. The sedan made its turn into the rightmost of the two northbound lanes. The Jeep eventually followed the sedan, making a left-hand turn into the same lane and accelerating such that Zastrow recounted he "could hear the engine revving through the closed windows of my squad car." The engine continued to rev until the Jeep was "approximately a quarter of a car length behind the sedan."

¶5 Zastrow testified that the Jeep then "bolted over into the second lane," but because the left lane was ending almost immediately thereafter, the Jeep "jolted back over into the right lane back behind the sedan and proceeded to continue following the sedan at approximately a quarter of length behind it." Zastrow followed the vehicles and then turned on his emergency lights and


stopped the Jeep. After pulling over, Rich admitted that his attempt to pass the sedan had been a bad idea and that he "recalled being close to the sedan." Zastrow recounted that when Rich spoke, he "could smell a strong odor of intoxicants emitting from his breath." Zastrow asked Rich about the odor, and Rich stated that he had consumed two beers. Zastrow then conducted SFSTs and ultimately placed Rich under arrest.

¶6 Zastrow explained that prior to transporting Rich to the Buffalo County Jail, he read him the Informing the Accused form and Rich consented to a test of his breath. After arriving at the jail, Zastrow explained the breath-test procedure to Rich. Zastrow testified that he "typically explain[s] to the individuals that we would need two sufficient samples" as a part of the breath test, but he could not recall whether he had explained this fact to Rich.

¶7 Zastrow recounted that in attempting to obtain the first breath test sample, Rich provided three insufficient samples-due either to a machine error or Rich failing to blow for a long enough period of time. On his fourth attempt, Rich was able to provide a sufficient sample. After one more insufficient sample, Rich provided a second sufficient sample. Zastrow testified that Rich did not revoke his consent to the breath test at any point during the testing process. Zastrow was asked "From your training, from how you were trained in this particular circumstance, was there more than one test that was conducted on Mr. Rich?" Zastrow responded, "There was not."

¶8 The circuit court denied Rich's suppression motions. The court found that Zastrow's testimony was credible and that he had reasonable suspicion to believe that Rich had committed or was committing an offense justifying the traffic stop, as Rich had been following the preceding vehicle too closely and


changed lanes "in a jolting manner." The court rejected Rich's argument that his close following was "normal when passing," reasoning that on the portion of the road where the events occurred, there were two lanes available to Rich. Accordingly, Rich could have moved into the passing lane much earlier than he did and he therefore did not need to follow the sedan so closely.

¶9 Next, the circuit court rejected Rich's argument that Zastrow did not have a reasonable suspicion that Rich was impaired due to alcohol, as opposed to merely having consumed alcohol. The court recounted that Zastrow smelled a strong odor of intoxicants, and Rich admitted that he had consumed two beers. In addition, the court emphasized Rich's "problematic driving behavior," including Rich delaying before leaving the stoplight, revving his engine when leaving the stoplight, following the sedan too closely, and changing lanes in a jolting manner. The court concluded that "all of these facts combined satisfy reasonable suspicion to justify requesting the [SFSTs] in this matter."

¶10 Finally, the circuit court rejected Rich's argument that his providing multiple breath samples constituted an illegal search in that law enforcement exceeded the scope of Rich's consent. The court found no facts supporting Rich's argument that he only consented to one breath sample or a sequence of samples. The court cited the Informing the Accused form-which Zastrow read to Rich prior to Rich consenting to the breath test-as stating "Law enforcement will be requesting one or more samples of breath." In addition, the court found that Rich consented to the breath test, that he did not revoke his consent, and that "[t]here are no facts to suggest that [Rich] intended to limit his consent to breath tests in any way." The court found that six samples were provided, resulting in a completed breath test, and that the "search of...

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