State v. Robinson, 96-2281-CR
| Decision Date | 20 February 1997 |
| Docket Number | No. 96-2281-CR,96-2281-CR |
| Citation | 209 Wis.2d 85,562 N.W.2d 928 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE of Wisconsin, Plaintiff-Respondent, v. Dale W. ROBINSON, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
APPEAL from an order of the circuit court for Marquette County: RICHARD O. WRIGHT, Judge. Affirmed.
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Dale Robinson appeals the trial court's order revoking his operating privileges after Robinson refused to submit to chemical testing. Robinson contends that the officer did not have probable cause to arrest him for driving while under the influence of an intoxicant at the time the officer requested Robinson to submit to chemical testing. We conclude there was probable cause to arrest Robinson and we therefore affirm.
At the refusal hearing, the State's sole witness was Les Crandall, deputy sheriff for Marquette County. He testified as follows. While on duty on February 16, 1996, at approximately 2:00 a.m. he observed a van driving with a headlight out. He pulled the van over and identified the driver as Dale Robinson. Crandall observed that Robinson's speech was slow and slurred, his eyes were bloodshot and glassy, and Crandall smelled intoxicants on Robinson's breath. Crandall asked Robinson if he had been drinking and Robinson said he had a couple of beers after work.
Crandall then asked Robinson to perform field sobriety tests. Crandall observed that Robinson had trouble unfastening his seat belt to get out of the van. When Robinson got out of the van, Crandall noticed that he was a little bit off balance when he walked.
Crandall first asked Robinson to perform the horizontal gaze and nystagmus [HGN] test, which involved Robinson tracking with his eyes. Crandall observed a lack of smooth pursuit in both eyes and nystagmus (a rapid involuntary oscillation of the eyeball) at maximum deviation in both eyes and an onset of nystagmus prior to forty-five degrees in both eyes.
Robinson then performed the walk and turn test, after Crandall demonstrated how to do it and instructed Robinson. In administering this test, Crandall looks to see if the person takes nine heel-to-toe steps as instructed, stays on the line, turns correctly and is able to keep his or her balance. Crandall asked Robinson to remain in a heel-to-toe stance while Crandall demonstrated and instructed. Robinson was not able to do remain in the heel-to-toe stance. Robinson took eighteen to nineteen heel-to-toe steps each way in performing the test. Crandall instructed Robinson to turn by pivoting on his lead foot and taking small steps with his other foot. Robinson did not do that but instead spun on his lead foot without taking steps with his other foot. Robinson did not stay on the line he was instructed to walk on but stepped off the line on step two.
The next test was the one-leg stand. In this test the subject is to raise a foot and keep it raised while counting to thirty and is not to hop or sway or raise the arms. Robinson put his raised foot down on the count of one and started over. Crandall had instructed Robinson to continue, rather than start over.
Robinson then submitted a breath sample for the preliminary breath test (PBT), and the result was .12. At that point Crandall formed the opinion that Robinson was operating under the influence of an intoxicant and placed Robinson under arrest. Crandall handcuffed Robinson, searched him, and placed him in the back of the squad car. By that time another officer had arrived. Crandall found a brown wallet lying on the ground next to the van, which he gave to Robinson, and during a search of the van found a beer bottle between the driver's seat and the passenger's seat with a bit of liquid that smelled of alcohol.
Crandall transported Robinson to the police station where he issued Robinson a citation for operating while under the influence of an intoxicant, second offense, in violation of § 346.63(1)(a), STATS., and a citation for having open intoxicants in a vehicle. Crandall read Robinson a document entitled: "Informing the Accused" which explains the requirements for submitting to a chemical test under Wisconsin's implied consent law. 2 Crandall initialed each statement in Section A of the document after he read it to Robinson. 3
When Crandall asked Robinson if he would submit to a chemical test of his breath, Robinson stated he wanted a blood test. Crandall explained that Robinson first had to submit to the department's primary test, the breath test, and Robinson repeated that he wanted a blood test. After Crandall told Robinson at least one more time that he needed to take the primary test first, Robinson said he was not going to make any more statements, he wanted an attorney, and he was going to remain silent. Crandall told Robinson that he was going to take Robinson's silence as a refusal, and Robinson did not respond. Crandall took Robinson's silence as a refusal and issued Robinson a notice of intent to revoke operating privileges.
Robinson also testified at the refusal hearing. He had been to the dentist earlier on the day he was stopped by Crandall, had a tooth pulled, and had cotton in his mouth. He recalled performing the HGN test, the walk and turn test, the one-leg stand and the PBT test. On the walk and turn test, he took eighteen steps rather than nine because of a misunderstanding, and he was walking on any line he could see. He wanted a blood test rather than a breath test because he had already taken the PBT and he knew he blew a .12. He never said "no" to an intoxilizer breath test at the station, he just stated that he wanted a blood test. After Crandall read the "Informing the Accused" document to him, he understood that he had already taken a breath test, the PBT, and that he could have another type of test. He did not recall whether Crandall told him at the station that he had to take a breath intoxilizer test at the station before he could have a blood test.
The court concluded that Crandall had probable cause to believe that Robinson was operating under the influence of an intoxicant and found that Robinson did refuse to submit to a chemical test after Crandall read the "Informing the Accused" form to him and after Crandall explained that his silence would be considered a refusal. Robinson does not challenge on appeal the trial court's determination that he refused to submit to a chemical test after being properly informed.
Before a person's operating privileges can be revoked for refusing to submit to a chemical test, there must be probable cause to believe that the person was driving while under the influence of an intoxicant. Section 343.305(9)(a) 5.a, STATS. Robinson argues that probable cause was lacking for three reasons. We understand Robinson's first contention as follows: Although Crandall did have a reasonable suspicion of a traffic violation--a non-functioning headlight--to stop...
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