County of Dane v. Sharpee

• Decision Date: 25 January 1990
• Docket Number: No. 89-1282,89-1282
• Parties: COUNTY OF DANE, Plaintiff-Respondent, v. Gerald P. SHARPEE, Defendant-Appellant. d
• Court: Wisconsin Court of Appeals

Page 508

453 N.W.2d 508

154 Wis.2d 515

COUNTY OF DANE, Plaintiff-Respondent, v. Gerald P. SHARPEE, Defendant-Appellant. ^d No. 89-1282.

Court of Appeals of Wisconsin.

Submitted on Briefs Dec. 12, 1989.

Opinion Released Jan. 25, 1990.

Opinion Filed Jan. 25, 1990.

Ralph A. Kala of Kala & Habermehl, Madison, for defendant-appellant.

C. William Foust, Dist. Atty., and Jonathan G. Kaiser, Asst. Dist. Atty., for plaintiff-respondent.

Before EICH, C.J., GARTZKE, P.J., and SUNDBY, J.

EICH, Chief Judge.

Gerald P. Sharpee appeals from a judgment convicting him of operating a motor vehicle while intoxicated, contrary to a Dane County ordinance adopting sec. 346.63(1), Stats. The issue on appeal concerns only Sharpee's arrest: Is an arrest on probable cause for driving while intoxicated voided per se by a preliminary breath test, administered on the scene, that indicates a blood alcohol content of .01 percent? We conclude that it is not, and we therefore affirm the judgment.

The facts are undisputed. Dane County Sheriff's Deputy Lori Rortvedt stopped Sharpee's automobile in the early morning hours because it was not displaying license plates. Upon confronting Sharpee she noticed a strong odor of intoxicants, that his speech was slurred, his eyes bloodshot, and that he had "a blank stare." Sharpee told her he had had "two or three drinks" that evening.

Rortvedt asked Sharpee to perform a standard "field sobriety test"--"the horizontal gaze" test--and she also asked him to recite the alphabet. ¹ According to Rortvedt, Sharpee "failed" the gaze test and, while performing it, his balance was unsteady and he was swaying from front to back. She also testified that Sharpee could not accurately recite the alphabet and that the letters he did recite were "slurred together."

Rortvedt then administered an on-site preliminary breath test to Sharpee, receiving a reading of .01 percent--a figure roughly one-tenth the level at which intoxication is established prima facie under sec. 885.235(1)(c), Stats. Rortvedt then placed Sharpee under arrest for driving while intoxicated.

Sharpee does not seriously dispute that, up to the point of the preliminary breath test, probable cause existed for the arrest. He contends, however, that the low preliminary breath test results "dissipated" that probable cause and voided any grounds for arrest.

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 arrestee is committing, or has committed, an offense. Village of Elkhart Lake v. Borzyskowski, 123 Wis.2d 185, 189, 366 N.W.2d 506, 508 (Ct.App.1985). 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 a reasonable officer to believe that guilt is more than a possibility." Id. It is also a commonsense test. The probabilities with which it deals are not technical: "[T]hey are the factual and practical considerations of everyday life on which reasonable and prudent men [and women], not legal technicians, act." State v. Paszek, 50 Wis.2d 619, 625, 184 N.W.2d 836, 840 (1971), quoting Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949). Finally, courts will look to the totality of the facts and circumstances faced by the officer at the time of the arrest to determine whether he or she reasonably believed that the defendant had committed an offense. Monroe County v. Kruse, 76 Wis.2d 126, 130-31, 250 N.W.2d 375, 377 (1977).

Sharpee, relying on United States v. Marin-Buitrago, 734 F.2d 889 (2d Cir.1984), argues that the low preliminary breath test results negated any probable cause that may have existed up to that time and thus the subsequent arrest was invalid. In Marin-Buitrago, the court held that where there has been "a definite and material change" in the facts underlying a magistrate's determination of probable cause to issue a search warrant, there is a "duty to report [the] new or correcting information to the magistrate" for a redetermination of probable cause. Id. at 894. The court went on to hold on the facts of the case that the "new information"[154 Wis.2d 519] --certain questions concerning the defendant's identity--would not affect the probable cause determination and upheld the warrant. Id. at 895-96. We do not consider Marin-Buitrago to be controlling on the issue before us.

Administration of preliminary breath tests is governed by sec. 343.303, Stats., which provides in part:

If a law enforcement officer has probable cause to believe that the person is ... or has violated [the drunk driving laws] the officer ... may request the person to provide a sample of his or her breath for a...