County of Jefferson v. Renz, No. 97-3512

CourtCourt of Appeals of Wisconsin
Writing for the CourtVERGERONT
Citation588 N.W.2d 267,222 Wis.2d 424
PartiesCOUNTY OF JEFFERSON, Plaintiff-Respondent, d v. Christopher D. RENZ, Defendant-Appellant.
Decision Date15 October 1998
Docket NumberNo. 97-3512

Page 267

588 N.W.2d 267
222 Wis.2d 424
COUNTY OF JEFFERSON, Plaintiff-Respondent, d
v.
Christopher D. RENZ, Defendant-Appellant.
No. 97-3512.
Court of Appeals of Wisconsin.
Submitted on Briefs July 27, 1998.
Opinion Released Oct. 15, 1998.
Opinion Filed Oct. 15, 1998.

Page 269

[222 Wis.2d 426] On behalf of the defendant-appellant, the cause was submitted on the briefs of Stephen E. Mays of Kalal & Associates.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Tris Baker, assistant district attorney.

Before VERGERONT, ROGGENSACK and DEININGER, JJ.

Page 270

VERGERONT, J.

On this appeal from a judgment of conviction for driving while under the influence of an intoxicant (OWI) and with a prohibited alcohol concentration (PAC), Christopher Renz raises these issues: (1) Does the statute regulating mufflers, § 347.39, STATS., violate the due process clause due to vagueness? (2) Does § 343.303, STATS., require probable [222 Wis.2d 427] cause to arrest before an officer may request a breath sample for a preliminary breath test (PBT)? (3) If probable cause to arrest is required before the administration of a PBT, was that standard met in this case? We conclude the muffler statute is not unconstitutionally vague and therefore the officer's detention of Renz for a violation of that statute was proper. We also conclude § 343.303 does require probable cause to arrest before administration of the PBT, and the officer here did not have probable cause to arrest before asking Renz to provide a breath sample. We therefore reverse the trial court's order denying Renz's suppression motion and the judgment of conviction. 1

BACKGROUND

Renz was arrested for OWI in violation of § 346.63(1)(a), STATS., after Deputy Sheriff David Drayna stopped him because of the loud sound of exhaust emitting from Renz's vehicle. Based on a subsequent blood test, Renz was also charged with driving with a PAC in violation of § 346.63(1)(b). Renz moved to suppress evidence on the ground that the stop was unlawful because the officer did not have a reasonable suspicion to believe that Renz's vehicle failed to comply with § 347.39, STATS. He also moved to suppress on the ground that the officer did not have probable cause to arrest at the time he requested Renz submit to a PBT, and the PBT result could therefore not be considered in assessing the existence of probable cause.

At the hearing on the motions, Officer Drayna presented the only testimony. He had been a deputy [222 Wis.2d 428] sheriff for six years and had made over 200 arrests for OWI. He was on duty in the early morning of February 12, 1996, traveling on Highway 106 in Jefferson County. Although the windows of his car were closed and his radio was on, he could hear exhaust emitting from a vehicle passing his car. Based on his Wisconsin State Patrol Academy course on equipment of motor vehicles, he concluded that the muffler on the vehicle violated § 347.39(1), STATS., which requires motor vehicles to be "equipped with an adequate muffler in constant operation and properly maintained to prevent any excessive or unusual noise." He had learned as a basic rule of thumb that if a vehicle made after 1979 was louder than a car with a muffler that had just "come from the factory," there was a violation of the statute. The vehicle was a 1991 Chevy Camaro. Drayna testified that he knew the muffler was defective and had leaks, otherwise it would not be as loud as it was. In his opinion, it was "excessively loud."

Officer Drayna pulled the vehicle over, using his emergency lights, and spoke to the driver, who identified himself as Renz. Renz stayed in his car and rolled down the window to speak to Officer Drayna. The officer detected a strong odor of intoxicants coming from the vehicle. He explained to Renz that he stopped him because of a defective exhaust, and Renz acknowledged that he knew it "had leaks and was loud." Officer Drayna returned to his car to run a routine license check, and when he went back to speak to Renz, he again noticed a strong odor of intoxicants. Officer Drayna asked Renz to step out of his car and asked him if he had been drinking that evening. Renz replied that he was a bartender at a tavern and had consumed three beers earlier in the evening. The officer did not observe Renz's speech to be slurred.

[222 Wis.2d 429] At the officer's request, Renz agreed to submit to field sobriety tests. Officer Drayna was trained to administer these tests by the National Highway Traffic Safety Administration. The first test was the alphabet test, and Renz recited the alphabet correctly. For the one-legged stand test, Renz was instructed to stand on one leg to the count of

Page 271

thirty, but he lost his balance at the count of eighteen and put his foot down. He started the test again, beginning with the number ten and continuing the count to thirty. He performed all other aspects of the test correctly, including beginning with his feet together, keeping his arms down, and putting his foot of choice directly in front of him. Renz exhibited one out of four "clues" of intoxication on this test, according to the manual Officer Drayna used.

The heel-to-toe test involved walking heel to toe on an imaginary line nine steps in one direction, turning, and walking nine steps back. Renz left a gap of about one-half inch to an inch between steps. He lost his balance on the return set of nine steps, meaning that he stepped off the imaginary line on step seven, then restarted and finished the test. Renz appeared to the officer to be unsteady while performing this test, meaning that he swayed from left to right. Renz did take the correct number of steps; make a proper turn; did not lose his balance during the instructions; did not start walking too soon; did not stop while walking; and did not raise his arms from his sides while walking. According to Drayna, out of eight potential "clues" on this test for intoxication, Renz exhibited two.

The finger-to-nose test requires the taker to close his eyes, tip his head back, and first place the right index finger on the tip of the nose, then the left index finger. Renz did touch the tip of his nose with his right index finger but with his left index finger he touched [222 Wis.2d 430] the upper bridge of his nose. He did not sway and had good balance while performing this test.

Officer Drayna testified that he administered a fifth test, the horizontal gaze nystagmus (HGN), which tests for jerkiness of the eyes. However, the trial court sustained Renz's objection to Officer Drayna's testimony on the administration and results of this test. The court ruled that expert testimony was needed to establish that the HGN was a test that a lay person could administer and interpret and to establish that the test was a valid indicator of intoxication. 2

[222 Wis.2d 431] After administering the field sobriety tests, Officer Drayna asked Renz to provide a breath sample for the PBT, and Renz did so. The result of that test was .18. The officer then placed Renz under arrest. Renz was cooperative throughout his contact with Officer Drayna.

Page 272

The trial court ruled that the initial stop was lawful because the officer, upon hearing the exhaust even though the windows were rolled up and the radio was on, had probable cause to stop Renz for an equipment violation and at least reasonable suspicion to investigate. 3

[222 Wis.2d 432] With respect to the PBT, the court construed the statutory language to require a lower level of probable cause to request a PBT than that needed to make an arrest. The court carefully evaluated and commented on the evidence. It noted that there was "considerable evidence" that Renz was not under the influence of an intoxicant and it reviewed that evidence. 4 In the court's view, the evidence that he "might be" under the influence of an intoxicant was the odor of intoxicants, Renz's admission that he drank three beers earlier, losing his balance on the heel-to-toe test and not keeping his heel and toe touching when walking as instructed, and missing the tip of his nose with his left hand on the finger-to-nose test. Based on that evidence, the court concluded the officer "marginally had probable cause to request a[PBT]." At the time the court made this ruling, Drayna had not yet testified that by "losing balance" on the heel-to-toe test he meant stepping off the imaginary line; that while performing the finger-to-nose test Renz maintained his balance; and that Renz swayed during the heel-to-toe test. After [222 Wis.2d 433] hearing this additional testimony, the court reaffirmed its ruling that this was a case of "marginal probable cause," with the first two pieces of additional testimony favoring Renz and the third favoring the County. The court also ruled that, with the PBT results, there was probable cause to arrest for OWI.

DISCUSSION

Vagueness Challenge § 347.39, STATS.

We first address Renz's contention that the muffler statute violates the due process clause because it is vague. 5 This presents a question of law, which we review de novo. See State v. Pittman, 174 Wis.2d 255, 276, 496 N.W.2d 74, 83 (1993). The presumption is that the statute is constitutional and the challenger has the burden of showing beyond a reasonable doubt that it is [222 Wis.2d 434] not. State v. White, 180 Wis.2d 203, 213, 509 N.W.2d 434, 437 (Ct.App.1993). A statute or ordinance is unconstitutionally vague if, because of some ambiguity or uncertainty in the gross outlines of the conduct prohibited,

Page 273

persons of ordinary intelligence do not have fair notice of the prohibition, and those who enforce the laws lack objective standards and may operate arbitrarily. Pittman, 174 Wis.2d at 276, 496 N.W.2d at 83. The first part of the test is concerned with whether the statute or ordinance sufficiently warns persons who wish to obey the law that their conduct comes near the proscribed area. Id. The second part is...

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31 practice notes
  • County of Jefferson v. Renz, No. 97-3512.
    • United States
    • United States State Supreme Court of Wisconsin
    • December 22, 1999
    ...WILCOX, J. The petitioner, Jefferson County, seeks review of a published decision of the court of appeals, County of Jefferson v. Renz, 222 Wis. 2d 424, 588 N.W.2d 267 (Ct. App. 1998), which held that a law enforcement officer must have probable cause for an arrest before asking a driver su......
  • State v. Nelson, No. 2005AP2300-CR.
    • United States
    • Court of Appeals of Wisconsin
    • May 25, 2006
    ...It is what will disturb a reasonable person that is actionable. Id. at 680, 470 N.W.2d 296. ¶ 42 In County of Jefferson v. Renz, 222 Wis.2d 424, 435-36, 588 N.W.2d 267 (Ct. App.1998), rev'd on appeal on other grounds at 231 Wis.2d 293, 603 N.W.2d 541 (1999), we consulted a dictionary to det......
  • State v. Hampton, 99-0622-CR
    • United States
    • Court of Appeals of Wisconsin
    • August 19, 1999
    ...knowledge that unsteadiness is one symptom of intoxication and may impair the capacity to drive safely." County of Jefferson v. Renz, 222 Wis.2d 424, 445, 588 N.W.2d 267, 277 (Ct. App. 1998). Based upon the combination of these facts, Swenson had probable cause to arrest Hampton for operati......
  • State v. Pace (In re Pace), Appeal No. 2018AP1428
    • United States
    • Court of Appeals of Wisconsin
    • January 30, 2019
    ...without additional testimony explaining the tests, we should not attach much significance to them, citing County of Jefferson v. Renz , 222 Wis. 2d 424, 445-46, 588 N.W.2d 267 (Ct. App. 1998) (Renz I ), rev’d on other grounds , County of Jefferson v. Renz , 231 Wis. 2d 293, 603 N.W.2d 541 (......
  • Request a trial to view additional results
31 cases
  • County of Jefferson v. Renz, No. 97-3512.
    • United States
    • United States State Supreme Court of Wisconsin
    • December 22, 1999
    ...WILCOX, J. The petitioner, Jefferson County, seeks review of a published decision of the court of appeals, County of Jefferson v. Renz, 222 Wis. 2d 424, 588 N.W.2d 267 (Ct. App. 1998), which held that a law enforcement officer must have probable cause for an arrest before asking a driver su......
  • State v. Nelson, No. 2005AP2300-CR.
    • United States
    • Court of Appeals of Wisconsin
    • May 25, 2006
    ...It is what will disturb a reasonable person that is actionable. Id. at 680, 470 N.W.2d 296. ¶ 42 In County of Jefferson v. Renz, 222 Wis.2d 424, 435-36, 588 N.W.2d 267 (Ct. App.1998), rev'd on appeal on other grounds at 231 Wis.2d 293, 603 N.W.2d 541 (1999), we consulted a dictionary to det......
  • State v. Hampton, 99-0622-CR
    • United States
    • Court of Appeals of Wisconsin
    • August 19, 1999
    ...knowledge that unsteadiness is one symptom of intoxication and may impair the capacity to drive safely." County of Jefferson v. Renz, 222 Wis.2d 424, 445, 588 N.W.2d 267, 277 (Ct. App. 1998). Based upon the combination of these facts, Swenson had probable cause to arrest Hampton for operati......
  • State v. Pace (In re Pace), Appeal No. 2018AP1428
    • United States
    • Court of Appeals of Wisconsin
    • January 30, 2019
    ...without additional testimony explaining the tests, we should not attach much significance to them, citing County of Jefferson v. Renz , 222 Wis. 2d 424, 445-46, 588 N.W.2d 267 (Ct. App. 1998) (Renz I ), rev’d on other grounds , County of Jefferson v. Renz , 231 Wis. 2d 293, 603 N.W.2d 541 (......
  • Request a trial to view additional results

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