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  • October 14, 2021

    Court of Appeals: Odor, Officer's Training, Prior Convictions Enough to Extend Traffic Stop

    The Court of Appeals District IV has reversed a circuit court ruling that a police officer illegally extended a traffic stop to administer field sobriety tests because he didn’t observe the driver driving, behaving or talking suspiciously.

    Jeff M. Brown

    Disco Ball

    Oct. 14, 2021 – The Court of Appeals District IV has reversed a circuit court ruling that a police officer illegally extended a traffic stop to administer field sobriety tests because he didn’t observe the driver driving, behaving or talking suspiciously.

    In State v. Adell, 2020AP2135-CR (Sept. 16, 2021), the court used a six-factor analysis to assess the validity of the police officer’s decision to extend the traffic stop. The court’s analysis of the factors was governed by State v. Hogan.[1]

    The police officer, a 17-year veteran of the Sauk County Sheriff’s Office, pulled Nicholas Adell over for speeding just before 6 a.m. on Aug. 1, 2019. The deputy clocked Adell going 69 mph in a 55 mph zone but observed nothing else illegal or suspicious in Adell’s driving. A passenger was in the car with Adell.

    When the deputy spoke to Adell, he smelled alcohol coming from the inside of the vehicle. The deputy asked Adell if he’d had anything to drink; he said no. The deputy asked Adell if he had anything to drink on the previous night; he said yes. There was nothing suspicious in the manner or content of Adell’s speech.

    When the deputy called in Adell’s driver’s license, he learned that Adell had four operating while intoxicated (OWI) convictions and was subject to a blood alcohol concentration (BAC) limit of .02. The deputy walked back to Adell’s vehicle. He asked Adell to step out to perform a series of field sobriety tests (FSTs).

    At trial, the deputy testified that he’d made about 150 OWI arrests and had been trained on how to investigate intoxicated drivers. In his experience, the deputy testified, a person could be over .02 BAC after drinking a single beer.

    The deputy also testified that he had no training or knowledge that would allow him to calculate or estimate a person’s BAC at a particular time, given how much the person had had to drink over a particular period and the rate at which the body absorbs and eliminates alcohol.

    Six Factors 

    In State v. Betow,[2] the court of appeals held that a police officer may extend a valid traffic stop if he or she “becomes aware of additional suspicious factors which are sufficient to give rise to an articulable suspicion that the person has committed or is committing an offense or offenses separate and distinct from the acts that prompted the officer’s intervention in the first place.”

    Jeff M. Brown Jeff M. Brown is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

    Under state supreme court precedent, whether the additional suspicion relied upon to extend a traffic stop is reasonable is governed by the totality of the circumstances.[3] The inquiry into reasonableness is governed by common sense and must take into account the police officer’s experience and training.[4]

    The first of the six factors was the combination of the deputy’s 17 years of experience, the training he’d received in investigating intoxicated drivers, and the fact he’d made 150 OWI arrests during his career. The second was the fact that before the deputy asked Adell to perform the FSTs, he’d learned that Adell had four OWI convictions.

    Factor three was the fact that the deputy knew Adell was subject to a .02 BAC restriction, plus the deputy’s knowledge, based on his training and his experience, that a person would have to consume only a small amount of alcohol to surpass .02 BAC. The fourth factor was the alcohol the deputy smelled coming from the vehicle.

    Adell’s admission that he drank the night before, plus the fact the traffic stop occurred at 5:50 a.m., combined for the fifth factor in the court’s analysis. The sixth factor was Adell’s speeding. That factor, along with Adell’s admission that he’d been drinking the night before, may have counted less than the other four factors, according to Appeals Court Judge JoAnne Kloppenburg.

    “However, the deputy here could reasonably have considered the excessive​ speeding a variety of risky driving that may reflect operating with a prohibited alcohol concentration,” wrote Judge Kloppenburg.

    When all six factors were considered, the court concluded that a police officer in the deputy’s position had reasonable suspicion to suspect that Adell was driving with a prohibited BAC. The extension of the traffic stop was, therefore, valid.

    Adell’s Arguments

    Adell argued that the court should give no weight to the first, second, third, and fifth factors because neither the deputy’s training nor experience allowed him to know just how much alcohol a person could consume without going over .02 BAC.

    “Adell may intend to argue that this admission about his lack of training or knowledge should have demonstrated to the circuit court that the deputy was not qualified to offer the opinion that only one drink ‘could’ cause a person to exceed the .02 BAC limit,” Kloppenburg wrote.

    “If this is the argument, we reject it. Adell fails to show why the circuit court should have disregarded the deputy’s uncontroverted testimony that, based on his training and experience, a person need not drink much alcohol to exceed to .02 BAC limit.”

    What about the odor of alcohol coming from inside the vehicle? Adell argued the court should disregard that factor because the deputy didn’t determine whether the odor was coming from Adell or the passenger.

    That only reduced the factor’s weight in the analysis, the court held. After all, the court of appeals held in a 2007 case[5] that a police officer is not required to eliminate an innocent explanation if a reasonable inference supports reasonable suspicion.

    The next arrow in Adell’s quiver was State v. Quitko,[6] an unpublished 2020 slip opinion from the state supreme court. In that case, the court held that a police officer lacked probable cause to administer a breathalyzer test to a driver subject to a .02 BAC restriction.

    Quitko wasn’t on point, Kloppenburg wrote. The police officer in Quitko had no training or experience about how much alcohol would put a person over .02 BAC. Moreover, the driver in Quitko denied that he’d been drinking.

    FSTs were Valid

    The court turned to the issue of whether the FSTs administered to Adell were legal.

    All Hogan requires is that a police officer administering FSTs have a reasonable suspicion that the driver had a detectable amount of drugs or alcohol in his or her blood. Adell’s contention that Hogan required the deputy to have a reasonable suspicion that Adell was impaired missed the mark, the court held.

    Adell turned to an unpublished 2020 slip opinion[7] from the court of appeals in which the court held that a police officer can only rely on evidence of impairment when ordering a driver to perform an FST.

    That case wasn’t on point, Kloppenburg wrote, because it involved an investigation for OWI, which unlike operating with a prohibited BAC requires proof of impairment.


    [1] 2015 WI 76, 364 Wis. 2d 167, 868 N.W.2d 124.

    [2] 226 Wis. 2d 90, 593 N.W.2d 449 (Ct. App. 1999).

    [3]State v. Post, 2007 WI 60, 301 Wis. 2d 1, 733 N.W.2d 634.

    [4]State v. Waldner, 206 Wis. 2d 51, 556 N.W.2d 681 (1996).

    [5]State v. Nieves, 2007 WI App 189, 304 Wis. 2d 182, 738 N.W.2d 125.

    [6] No. 2019AP200, unpublished slip opinion (WI App May 12, 2020).

    [7]Village of Little Chute v. Rosin, No. 2013AP2536, unpublished slip op. (WI App Feb. 25, 2014).

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