State v. Revels
| Decision Date | 13 January 2022 |
| Docket Number | 2021AP1185-CR |
| Court | Wisconsin Court of Appeals |
| Parties | State of Wisconsin, Plaintiff-Appellant, v. Rory David Revels, Respondent-Respondent. |
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
APPEAL from an order of the circuit court for Sauk County No 2020CT49, PATRICIA A. BARRETT, Judge. Reversed and cause remanded for further proceedings.
¶1 Rory Revels was charged in the Sauk County Circuit Court with operating a motor vehicle while under the influence of an intoxicant, third offense, pursuant to Wis.Stat. § 346.63(1)(a), and with operating a motor vehicle with a prohibited alcohol concentration, third offense, pursuant to Wis.Stat. § 346.63(1)(b). Those charges were based on Revels exhibiting numerous signs of alcohol intoxication before his arrest; and the result of a test of blood drawn from Revels shortly after his arrest which showed that he had a blood alcohol concentration of .176 g/100 mL, more than twice the legal limit. See Wis. Stat. § 340.01(46m)(a). At Revels' request, and after an evidentiary hearing, the circuit court dismissed both charges against Revels. The State appeals[2] and argues that the circuit court erred in dismissing the charges. For the reasons discussed below, I agree with the State, reverse the order of the circuit court, and remand this matter for further proceedings consistent with this opinion.
¶2 The following facts are established by the testimony and exhibits introduced into evidence at the evidentiary hearing (including the written reports of two police officers).
¶3 On November 4, 2019, at about 12:30 in the morning, Officer Meyer of the Baraboo Police Department was in his parked squad car just east of Broadway Street in Baraboo. Meyer saw a black truck stopped in the road at the intersection of 8th Avenue and Broadway Street. According to both his written report and testimony, Meyer watched the black truck "stay stationary for a period of 30-45 seconds without moving," although the green traffic control light for the lane the truck was in signaled for the truck to proceed. He then drove his squad car behind the truck and activated the squad car's emergency lights. Before stepping out of the squad car, Meyer told dispatch that he was checking on a possible disabled vehicle because the truck was not moving.
¶4 Meyer next talked to the driver, who was identified by his driver's license as Rory Revels. Meyer asked Revels whether he was "okay," and Revels responded by stating "[y]es" and explained that he was going home to Hillsboro. Meyer's report contains further material information regarding his interaction with Revels:
¶5 According to the report of Officer Smith of the Baraboo Police Department, Smith was "called to assist" Meyer at approximately 12:30 a.m. When Smith arrived, he was asked to take over this investigation because Meyer was near the end of his shift and because Meyer was losing his voice. More specifically, Meyer testified that he felt "fine" but was "struggling to speak." Meyer explained that an OWI investigation of Revels would require Meyer to ask Revels to attempt to take certain actions during field sobriety testing, and Revels would "need to understand me clearly … [and] I wouldn't have been able to do so." Meyer made Smith aware of Meyer's observations concerning Revels to this point, and Smith made contact with Revels while Revels was still seated in his truck.
¶6 Smith's report contains the following pertinent observations from the time he arrived at the scene and the information told to him by Meyer:
When I arrived, I observed a black Ford pickup truck running with a male in the driver seat smoking a cigarette. Officer Meyer's patrol vehicle was behind the Ford pickup with its emergency lights activated. Officer Meyer informed me that he had been stationary in the Community Bank parking lot observing traffic when he observed the subject's vehicle stop at the red light at 8th Avenue and South Broadway Street. Officer Meyer stated that once the light turned green, the subject vehicle did not move. Officer Meyer said he watched for about a minute and the vehicle never moved, even though the light was green. Officer Meyer left the bank parking lot and positioned his fully marked patrol vehicle behind the subject vehicle and then he activated his emergency lights. Officer Meyer believed that the subject was having mechanical issues. Officer Meyer told me that he made initial contact with the driver, who identified himself with a Wisconsin driver's license as Rory Revels. Officer Meyer told me that Rory told him he had consumed three beers. Officer Meyer told me that Rory had bloodshot, watery, and glassy eyes, his speech was slurred, and Officer Meyer smelled a strong odor of an intoxicating beverage emitting from the vehicle. Officer Meyer was about to go off shift due to an illness and I assumed the case at this point.
¶7 Smith's report describes his initial interaction with Revels:
I made contact with Rory while he was in his vehicle still sitting at the traffic light. When I approached the vehicle I smelled a strong odor of an intoxicating beverage emitting from the vehicle. I shined my flashlight and could I see that Rory presented with glassy/watery and bloodshot eyes. From my training and experience as a law enforcement officer, I am aware these can be signs of impairment caused by alcohol. I asked Rory if he had been drinking, and he replied that he had five beers. I asked Rory if he felt like he was okay to drive, and he replied that he was good to drive. I asked Rory if he would be willing to do some field sobriety tests, and he replied "carry on". I asked Rory if that meant he would do the tests, and he replied that he would do the tests. I had Rory exit his vehicle and I directed him across the street to the covered awning area of the bank. When Rory exited his vehicle I asked him if he consented to a search of his person. Rory told me to "carry on", and I searched him, which did not turn up anything of evidentiary value or law enforcement concern.
¶8 Smith's report describes in detail his field sobriety testing of Revels, and I summarize that information now. On the Horizontal Gaze Nystagmus Test, Smith observed six out of six possible clues for intoxication. Regarding the "walk and turn" test, Smith observed that Revels exhibited six out of eight possible clues of intoxication. For the "one leg stand" test, Smith observed three out of four possible clues of intoxication. Revels was then given a preliminary breath test and the reading was .163 BrAC.
¶9 When the field sobriety testing concluded, Smith arrested Revels. After the arrest, Revels refused to consent to a blood draw. Smith transported Revels to the Baraboo Police Department station, and a paramedic drew blood from Revels after a search warrant was granted. The blood sample was sent to the Wisconsin State Laboratory of Hygiene and tested for the presence of ethanol. The result of the blood testing was 0.172 g/100 mL.
¶10 The further actions of the officers and the videos of these just-described events will be discussed in more detail later in this opinion. For now, a few material points are touched upon. The Meyer squad car camera video and the Meyer body-worn camera video of this incident were uploaded to the Baraboo Police Department server when Meyer returned to the station. Meyer did not preserve his squad car and body-worn camera videos of this incident to permanent media after returning to the station as his shift ended. Rather, Meyer expected Smith to complete that task. The Chief of the Baraboo Police Department, Mark Schauf, testified that Meyer's expectation about Smith preserving the two Meyer videos to permanent media was consistent with the Baraboo Police Department's "practice … generally" that the "lead officer for the case will download all [videos of each officer involved in the investigation] onto one storage device."
¶11 Smith attempted to download the two Meyer videos consistent with Meyer's expectation and the general practice described by Chief Schauf. Smith testified that, while in the patrol room at the station at the end of his shift, he believed that he saved the videos from Meyer's squad car and Meyer's body-worn camera, as well as his own body-worn camera video, related to Revels to a permanent storage device. Smith testified from his "independent recollection" on this subject. Smith stated that he reviewed each video when he saved those onto the desktop of his computer in the patrol room. But, instead of preserving each of those three videos, Smith accidentally saved three copies of his body-worn camera video to the permanent storage media. Chief Schauf explained at the hearing that, at some point more than 120 days after videos are uploaded to the Baraboo Police Department server, the videos are automatically overwritten through the standard operation of the server, and that is what happened to the two Meyer videos. Smith testified that he made a "mistake" causing Meyer's squad car camera and body-worn camera videos not to be preserved.
¶12...
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