Court of Appeals of Wisconsin.
Case No. 99-0043-FT.
Opinion Released: June 17, 1999 Opinion Filed: June 17, 1999 This opinion will not be published. See Rule 809.23(1)(b)4, Stats.
APPEAL from a judgment of the circuit court for JeffersonCounty: JACQUELINE R. ERWIN, Judge. Affirmed.
VERGERONT, J.[1]
Brent Genz appeals a judgment of conviction for driving whileunder the influence of an intoxicant (OWI), contending that theofficer did not have probable cause to arrest him. We agree withthe trial court that there was probable cause for the arrest, andwe therefore affirm.
At the hearing on Genz’s motion to suppress evidence based onlack of probable cause, Officer Dayne Zastrow of the WatertownPolice Department was the only witness. He had been employed as apolice officer by the City for eight years, taken and passed thetwenty-four-hour course in Standardized Field Sobriety Testing,received on-the-job training in detecting OWI offenses from atraining officer, and had made over 100 arrests for OWI. OfficerZastrow testified that while on routine patrol late one eveninghe observed an oncoming vehicle driven by Genz make a left-handturn onto Boughton Street in the City of Watertown. The turn was”too sharp,” such that the vehicle continued at an angle into theoncoming lane of traffic, straddling the centerline portion ofthe road at the completion of the turn. There was no yellow linedepicting the center of the street at that point. The vehiclecontinued fifty to sixty feet straddling the centerline portionof the road, then made a “slow meandering movement back into itsown lane of traffic,” and, as Officer Zastrow approached thevehicle “began a slow and meandering movement back and towardsthe centerline [portion] again,”[2] but his meandering waswithin Genz’s lane.
Officer Zastrow made a U-turn to follow Genz’s vehicle andactivated the emergency lights of his squad car. After he did so,he observed that Genz’s vehicle was left of the centerline byanywhere from eight to twelve inches and then made another slowand meandering motion back into its own lane of traffic.[3] After the activation of the emergency lights, Genz’s vehicletraveled about 200 to 300 feet on the roadway, then pulled offand continued for 400 to 600 feet on the gravel, making “a veryslow meandering stop.”
Genz produced his driver’s license for Officer Zastrow. Duringthis interaction, Officer Zastrow could smell intoxicants,observed that Genz’s eyes were bloodshot and glassy, and thatthis speech was labored and slurred. Genz said he had a fewdrinks at a park where he was playing volleyball. Genz did nothave any difficulty getting out of his car.
Genz agreed to take the field sobriety tests. First, OfficerZastrow administered the Horizontal Gaze Nystagmus (HGN) test. Hetold Genz to keep his head still and follow a pen tip with hiseyes. Officer Zastrow held the pen about twelve to fifteen inchesfrom Genz’s face at his eye level. Genz initially did not followthe instructions, instead moving his head. While the subject’seyes follow the moving point, the officer looks for three thingsfor each eye, a total of six “clues”: (1) whether the movement ofthe eye is choppy while tracking; (2) whether the pupil, when atmaximum deviation (the corner of the socket), shows jerkiness;and (3) whether there is a distinct jerkiness prior to forty-fivedegrees. Genz’s eyes both showed jerkiness on each point — allsix “clues.” In Officer Zastrow’s opinion, Genz did not pass thistest.
The second test was the walk-and-turn test. Officer Zastrowtold Genz to stand in a heel-to-toe stance with the right foot infront of the left and arms at his side, and explained anddemonstrated the test to Genz. He told Genz to imagine a straightline and take nine steps, heel to toe, counting each step outloud and not stopping or stepping off the line; then turn 180degrees leaving one foot on the ground and taking nine steps backto the starting point. Genz could not maintain a heel-to-toestance while being instructed: he fell out of that stance at thebeginning of the instructions and then just stood in a normalmanner. While taking the nine steps each way, Genz needed toraise his arms to keep his balance, and several times he “missedheel-to-toe” and stepped off the imaginary line. Genz did takethe correct number of steps and did turn as instructed.
The third test was the one-legged-stand. Officer Zastrowexplained to Genz that he was to raise one foot from the ground,hold it in a particular way, and count in a particular manner tothirty, all the while keeping his arms at his side and nothopping. Genz had a difficult time maintaining his balance. Heput his foot down five times, needed to raise his arms, and was”very shaky.” In Officer Zastrow’s opinion, Genz did not passeither the walk-and-turn test or the one-legged-stand test.Officer Zastrow administered a preliminary breath test, obtaineda reading of .12 and informed Genz that he was placing him underarrest for OWI.
The trial court found that there was probable cause to arrestwithout the PBT results, based on the officer’s observations ofZastrow’s driving, the odor of intoxicants, his admission ofdrinking, his bloodshot and glassy eyes, his slurred and laboredspeech, his failure of the HGN test and the deviations from therequirements for successfully performing the other twotests.[4] On appeal, Genz contends that the trial courterred in reaching this conclusion.
Whether the facts, which are not disputed, constitute probablecause presents a question of law, which we review de novo. SeeCounty of Jefferson v. Renz, 222 Wis.2d 424, 444, 588 N.W.2d 267, 277 (Ct.App. 1998), review granted, 222 Wis.2d 673, 589 N.W.2d 628 (1998). Because of our recent holding in Renz that, under § 343.303, Stats., an officer must have probable cause to arrest before administering a PBT test, see id. at 439, 588 N.W.2d at 275, the trial court properly first considered only those events occurring prior to the administration of the PBT test. Probable cause in this context exists when the facts and circumstances within the officer’s knowledge would lead a reasonable officer to believe that the person has probably been driving while under the influence of an intoxicant. Id. at 439, 444, 588 N.W.2d at 275, 277. The evidence need not be sufficient to prove guilt beyond a reasonable doubt, nor sufficient to prove that guilt is more probable than not; it is necessary only that the information lead a reasonable officer to believe that guilt is more than a possibility. Id. at 439, 588 N.W.2d at 275.
We conclude that the facts and circumstances within Officer Zastrow’s knowledge at the time he administered the PBT test were sufficient to lead a reasonable officer to believe that Genz was driving while under the influence of an intoxicant. Genz acknowledged he had been drinking, and the officer smelled intoxicants. Genz’s glassy, bloodshot eyes and slurred, labored speech are evidence that the amount he drank had affected him physically. The “too sharp” turn he made, the driving over the centerline and the meandering within his lane indicate his driving was affected by the intoxicants. The officer’s observations of Genz’s loss of balance and shakiness during the heel-to-toe test and the one-legged-stand test are further indications that Genz’s ability to drive was impaired.
Genz points out that the officer never explained in his testimony the significance of eye jerkiness for the HGN test as it relates to the ability to drive safely. However, even if we disregard the officer’s testimony on that test, the other evidence is ample to support probable cause. We do not agree that additional testimony on the significance of the officer’s observations for the other two tests was necessary. “It is common knowledge that unsteadiness is one symptom of intoxication and may impair the capacity to drive safely,” Renz at 445, 588 N.W.2d at 277, and, based on common knowledge and experience, losing balance on the heel-to-toe test and one-legged-stand test as Genz did is an indication of unsteadiness. See id. at 446, 588 N.W.2d at 277. We also do not agree that this case is factually similar to Renz in which we found no probable cause. Evidence of poor driving, glassy and bloodshot eyes and slurred and labored speech were absent in Renz, and Genz demonstrated more signs of unsteadiness on the two tests than did Renz.
By the Court. — Judgment affirmed.