State v. Babbitt
| Decision Date | 18 October 1994 |
| Docket Number | No. 94-0703,94-0703 |
| Citation | 525 N.W.2d 102,188 Wis.2d 349 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Barbara J. BABBITT, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
For the defendant-appellant the cause was submitted on the briefs of Wayne A. Arnold of Rice Lake.
For the plaintiff-respondent the cause was submitted on the brief of James E. Doyle, Atty. Gen. and Jerome S. Schmidt, Asst. Atty. Gen.
Before CANE, P.J., and LaROCQUE and MYSE, JJ.
Barbara Babbitt appeals an order finding that there was probable cause for her arrest under § 346.63(1)(a), STATS., 1 and revoking her license under § 343.305(10), STATS., 2 for unreasonably refusing to take an Intoxilyzer test. Babbitt contends that the trial court erroneously relied on her refusal to submit to a field sobriety test in determining that there was probable cause for her arrest. Further, Babbitt contends that absent evidence of her refusal to take the field sobriety test, there was insufficient evidence to establish probable cause for her arrest under § 346.63(1)(a). Because we conclude that the court properly relied upon the defendant's refusal to submit to a field sobriety test in determining the existence of probable cause and that there was sufficient evidence to establish probable cause absent evidence of Babbitt's refusal to take the field sobriety test, we affirm the order.
The facts are undisputed. At approximately 2 a.m. on September 12, 1993, a citizen advised Larry Tripp, a Barron City police officer, that she had followed a truck-like vehicle from Turtle Lake to Barron County and that the operator of the truck had been driving erratically. The citizen was unable to provide the officer with a description of the vehicle other than identifying it as a truck-like vehicle. The motorist did, however, indicate the group of vehicles in which the truck had been driving. Tripp eventually caught up with the group of vehicles, which included a gray Blazer-type vehicle driven by Babbitt. This was the only vehicle in the group consistent with the citizen's description.
As Tripp followed the vehicle, he observed it cross the centerline three times and the eastbound dividing line once in a quarter-mile stretch of highway. At that point, Tripp activated his emergency lights and pulled the vehicle to the side of the road. Tripp walked to the side of Babbitt's vehicle at which time Babbitt lowered her window. Once the window was down, Tripp detected the odor of alcohol emanating from the driver. Tripp then requested Babbitt's driver's license and she complied. Tripp observed that Babbitt's eyes were bloodshot and glassy. As Tripp ran a driver's license check, Sergeant Kohl arrived at the scene to assist. Tripp and Kohl then requested Babbitt to exit her vehicle. Babbitt asked several times why she had to get out of her vehicle before ultimately complying with the officers' request.
After exiting her vehicle, the officers requested Babbitt to walk to the rear of her vehicle. Again, Babbitt repeatedly asked the officers why she had to walk to the rear of the vehicle before she eventually complied. Kohl noted that Babbitt's balance appeared to be poor, that she swayed as she walked and that she appeared to be using the vehicle to steady herself. Tripp noted that Babbitt walked slowly and seemed to be watching where she was going. Tripp requested Babbitt to perform a field sobriety test, but Babbitt refused. After Babbitt's refusal, Tripp testified that he questioned the passenger in the vehicle, Paula Siewert, who informed him that she and Babbitt had a few drinks between 9 p.m. and 1:30 a.m. Tripp further testified that although Babbitt was generally polite, she displayed an uncooperative attitude in response to the officers' requests.
The officers ultimately placed Babbitt under arrest for driving under the influence of an intoxicant in violation of § 346.63(1)(a), STATS. The officers then took Babbitt to the police station where she was asked to submit to an Intoxilyzer test to determine her blood-alcohol level. Babbitt refused.
At the refusal hearing, the court found that the officers had probable cause to arrest Babbitt for driving under the influence of an intoxicant and that her refusal to submit to the Intoxilyzer test was therefore unreasonable under § 343.305(10), STATS. The trial court, however, found that absent evidence of Babbitt's refusal to submit to the field sobriety test, there was no probable cause for her arrest. The court then entered an order revoking Babbitt's license and she appeals.
Babbitt first contends that absent evidence of her failure to submit to the field sobriety test, the evidence was not sufficient to establish probable cause for her arrest. In support of this contention, Babbitt notes that the trial court specifically found that if it did not take into account her refusal to submit to the field sobriety test, the evidence would be insufficient to establish probable cause. Therefore, she contends that because evidence of her refusal to submit to the field sobriety test is not admissible, the trial court erred by finding that probable cause existed for her arrest.
Whether undisputed facts constitute probable cause is a question of law that we review without deference to the trial court. State v. Drogsvold, 104 Wis.2d 247, 262, 311 N.W.2d 243, 250 (Ct.App.1981). In determining whether probable cause exists, we must look to the totality of the circumstances to determine whether the "arresting officer's knowledge at the time of the arrest would lead a reasonable police officer to believe ... that the defendant was operating a motor vehicle while under the influence of an intoxicant." State v. Nordness, 128 Wis.2d 15, 35, 381 N.W.2d 300, 308 (1986). Probable cause to arrest does not require "proof beyond a reasonable doubt or even that guilt is more likely than not." State v. Welsh, 108 Wis.2d 319, 329, 321 N.W.2d 245, 251 (1982). It is sufficient that a reasonable officer would conclude, based upon the information in the officer's possession, that the "defendant probably committed [the offense]." State v. Koch, 175 Wis.2d 684, 701, 499 N.W.2d 152, 161 (1993).
Here, the undisputed facts disclosed by the record reveal that: (1) Tripp received a citizen's report that the operator of a truck traveling in a particular group of vehicles was driving erratically; (2) Tripp observed Babbitt's vehicle, which was consistent with the citizen's description, cross the centerline three times and the eastbound dividing line once in a quarter-mile stretch; (3) Tripp detected the odor of alcohol emanating from Babbitt's car when she lowered the window; (4) Babbitt's eyes were glassy and bloodshot; (5) Babbitt's walk to the rear of the vehicle was slow and deliberate; and (6) Babbitt consistently displayed an uncooperative attitude and reluctantly complied with the officers' various requests. These facts are sufficient to allow a reasonable officer to conclude that Babbitt was "probably" driving while under the influence of alcohol in violation of § 346.63(1)(a), STATS. Therefore, even without the evidence of Babbitt's failure to submit to the field sobriety test, we conclude that probable cause existed for her arrest. 3
The trial court specifically found that probable cause did not exist in the absence of Babbitt's refusal to submit to the field sobriety test. We conclude, however, that probable cause existed regardless of this factor. Nevertheless, because both the State and Babbitt have requested that we consider whether a defendant's refusal to submit to a field sobriety test is admissible for the purpose of establishing probable cause to arrest, we address this issue as an alternative basis for affirming the trial court's judgment. In doing so, we note that this is not a criminal action and that constitutional constraints protecting criminal defendants are therefore inapplicable. For purposes of this appeal, however, our analysis will consider the constitutional issue of self-incrimination in determining whether a defendant's refusal to submit to a field sobriety test may be used as evidence of intoxication.
In Wisconsin, it is clear that a defendant's refusal to submit to an Intoxilyzer test is admissible as evidence of intoxication. State v. Albright, 98 Wis.2d 663, 668-69, 298 N.W.2d 196, 200 (Ct.App.1980); see also South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983). Babbitt, however, contends that there are important distinctions between a defendant's refusal to take an Intoxilyzer test and a defendant's refusal to perform a field sobriety test. First, Babbitt argues that unlike the field sobriety test, the Intoxilyzer test is mandated by statute. Section 343.305(1), STATS. Second, Babbitt contends that while under § 343.305(3)(a), a defendant must be advised of the consequences of his or her refusal to submit to an Intoxilyzer test, there is no similar requirement that an officer inform a defendant of the consequences of his or her refusal to perform a field sobriety test. 4 Therefore, because of these distinctions, Babbitt contends that a refusal to submit to a field sobriety test may not be used as evidence of probable cause to arrest. We are not persuaded.
In Albright, the court noted that evidence of a defendant's refusal to submit to an Intoxilyzer test should be admissible because the "reasonable inference from refusal to take a mandatory breathalyzer test is consciousness of guilt." Id. 98 Wis.2d at 668, 298 N.W.2d at 200. Therefore, the court concluded that this evidence should be admissible because it is relevant to the issue of whether the defendant was intoxicated. We conclude that just as the refusal to take an Intoxilyzer test is indicative of consciousness of guilt so to is the refusal to perform a field sobriety test. The purpose of the field sobriety test is to...
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