Passing Field-Sobriety Tests Did Not Negate Probable Cause to Make Arrest

By Joe Forward, Legal Writer, State Bar of Wisconsin

Sept. 24, 2012 – A driver who passes a field-sobriety test can still be arrested for drunk driving, a state appeals court has clarified. That is, field-sobriety tests aren’t necessary to establish probable cause if police have other evidence of driving under the influence of intoxicants.

Under Wis. Stat. section 343.303, police can ask a driver to take a preliminary breath test if there’s a basis to make an investigative stop. To make an actual arrest, police must have probable cause to believe the driver has violated the state’s OWI laws.

In State v. Felton, 2011AP2119-CR (Sept. 18, 2012), the District I Wisconsin Court of Appeals rejected Christopher Felton’s argument that he passed field-sobriety tests and thus a police officer did not have probable cause to give him a breath test.

“That Felton successfully completed all of the properly administered field-sobriety tests does not, as Felton argues, subtract from the common-sense view that Felton may have had a blood-alcohol level that violated Wis. Stat. § 346.63(1),” wrote Judge Ralph Fine, explaining that field sobriety tests aren’t always necessary to establish probable cause.

In this case, a Whitefish Bay police officer observed Felton run a stop sign during the early morning hours. The officer testified that Felton’s eyes were glassy and bloodshot, and he smelled of alcohol. Felton admitted drinking three beers two hours prior. Felton also had previous drunk-driving convictions, which the officer could see from his driving record.

Felton passed field sobriety tests that were properly given, but the officer gave him a breath test anyway. The breath test gave the officer probable cause to arrest Felton for drunk driving.

A circuit court denied Felton’s motion to suppress evidence based on an unlawful arrest, and he ultimately pleaded guilty to operating under the influence, fourth offense.

On appeal, the appeals court rejected Felton’s argument that police did not have probable cause to give him a breath test, and the breath test was inadmissible because the instrument used was not approved or certified as accurate. The results of blood-alcohol tests are not admissible as evidence unless the accuracy of a particular device has been approved.

However, the court distinguished devices that are used to produce valid evidence in court and devices used to create probable cause to make an arrest.

“As the trial court noted correctly, though, no statute similarly preconditions the use of the preliminary breath test when it is used by a law enforcement officer ‘for the purpose of deciding whether or not the person shall be arrested …,” Judge Fine wrote.