Forest County v. Brian M. Steinert

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
January 19, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2020AP1465 Cir. Ct. No. 2020TR561

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

IN THE MATTER OF THE REFUSAL OF BRIAN M. STEINERT:

FOREST COUNTY,

PLAINTIFF-RESPONDENT,

V.

BRIAN M. STEINERT,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Forest County:
LEON D. STENZ, Judge. Affirmed.

¶1 STARK, P.J.1 Brian Steinert appeals a judgment revoking his
operating privilege as a result of the circuit court’s determination that he

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This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2019-20). All
references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
unreasonably refused to submit to an evidentiary chemical test of his blood. See
WIS. STAT. § 343.305(10)(a). Steinert argues that his refusal was reasonable
because he was not lawfully placed under arrest. Specifically, he contends that the
officers lacked probable cause to arrest him for possession of drug paraphernalia at
the scene of the traffic stop. He further contends that the officers violated WIS.
STAT. § 968.24 by transporting him outside the vicinity of the stop to perform field
sobriety tests, without probable cause to do so.

¶2 Forest County (“the County”) concedes that the officers lacked
probable cause to arrest Steinert for possession of drug paraphernalia. We
nevertheless conclude Steinert was lawfully placed under arrest at the scene of the
traffic stop because the officers had probable cause to believe that he had operated
a motor vehicle with a detectable amount of a restricted controlled substance in his
blood, contrary to WIS. STAT. § 346.63(1)(am). Under these circumstances,
Steinert’s transportation to another location to perform field sobriety tests did not
violate WIS. STAT. § 968.24. We therefore reject Steinert’s claim that his refusal
was reasonable, and we affirm the circuit court’s judgment revoking his operating
privilege.

BACKGROUND

¶3 On June 9, 2020, Steinert was issued a notice of intent to revoke his
operating privilege, based on his refusal to submit to a chemical test of his blood
upon request by a law enforcement officer. See WIS. STAT. § 343.305(3)(a),
(9)(a). Steinert timely requested a refusal hearing, which took place on July 27.

¶4 During the refusal hearing, Forest County Sheriff’s Deputy Connor
Johnson testified that on June 8, 2020, at about 10:30 p.m., he observed a vehicle
driving northbound on a state highway with a defective passenger-side headlight.

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He stopped the vehicle based on the defective headlight, and the driver identified
himself as Steinert. Johnson observed that Steinert’s speech was slow and that he
was stumbling over his words, which led Johnson to believe that Steinert “was
under the influence of something.” Johnson did not, however, observe the odor of
intoxicants or any “driving habits” suggesting intoxication.

¶5 Johnson testified that he had past experience with Steinert, which
involved methamphetamine. Given that past experience, he decided to ask Canine
Officer Ryan Wilson to respond to the scene to perform a dog sniff of Steinert’s
vehicle. Wilson and Deputy Adam Boney arrived on the scene while Johnson was
preparing a written warning regarding Steinert’s defective headlight. Wilson and
Boney directed Steinert and his passenger to exit the vehicle, which they did.
Johnson then heard “bickering” between Steinert and Boney, so he exited his own
vehicle and went to assist the other officers.

¶6 At that point, Boney advised Johnson that a “syringe with brown
residue” had been found on Steinert’s person. Steinert and his passenger were
then placed in handcuffs. Based on the syringe, the officers decided to search
Steinert’s vehicle, but no contraband was located during that search. After the
search, Boney informed Johnson that Steinert had admitted using
methamphetamine at 2:00 p.m. that day—about 8.5 hours earlier. Johnson
testified that his “training and experience” included “speaking with DRE’s [drug
recognition experts] in the Forest County Drug Task Force who advised [him that]
meth can stay in the system [for] up to 24 hours.” Based on that knowledge, as
well as Steinert’s “slow, stuttered speech” and his admission to using
methamphetamine 8.5 hours earlier, Johnson believed that Steinert was under the
influence of methamphetamine.

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¶7 The officers then decided to administer field sobriety tests. Johnson
explained, however, that they did not want to conduct those tests at the scene of
the stop because they “thought it would be better to bring [Steinert] back to a
control environment” where a DRE assessment could take place. Johnson advised
Steinert that he was under arrest for possession of drug paraphernalia, and Steinert
was then transported to the Forest County Sheriff’s Office, where he refused to
perform field sobriety tests. Thereafter, Johnson read Steinert the Informing the
Accused form, and Steinert refused to submit to a chemical test of his blood. The
officers subsequently obtained a warrant to draw Steinert’s blood.

¶8 On cross-examination, Johnson reiterated that Steinert was placed
under arrest for possession of drug paraphernalia at the scene of the traffic stop.
Johnson testified that at the time of the stop, he believed the syringe found on
Steinert constituted drug paraphernalia. Johnson conceded, however, that he had
since learned the syringe did not qualify as drug paraphernalia under the relevant
statute. See WIS. STAT. § 961.571(1)(b)1. Johnson did not testify that Steinert
was placed under arrest for any other offense at the scene of the stop.

¶9 Following Johnson’s testimony, Steinert argued that the circuit court
could not revoke his operating privilege based on his refusal to submit to a blood
test because his arrest was unlawful. Specifically, he contended that the officers
lacked probable cause to arrest him at the scene of the traffic stop, and that they
violated WIS. STAT. § 968.24 by transporting him outside the vicinity of the stop to
perform field sobriety tests, without probable cause to do so.

¶10 The circuit court rejected Steinert’s arguments, concluding: (1) the
officers “quite possibly” had probable cause to arrest Steinert for operating a
motor vehicle while intoxicated (OWI) at the scene of the traffic stop, but they did

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not arrest him for OWI at that point; (2) Steinert’s transportation to the sheriff’s
office was reasonable under the circumstances and did not violate WIS. STAT.
§ 968.24; and (3) the officers’ observations after Steinert arrived at the sheriff’s
office gave rise to probable cause to arrest him for OWI. The court therefore
concluded that Steinert was lawfully arrested for OWI at the sheriff’s office. The
court further concluded that Johnson read Steinert the Informing the Accused form
“in compliance with the statute,” that Steinert refused the requested test of his
blood, and that Steinert’s refusal was unreasonable. The court therefore entered a
final judgment revoking Steinert’s operating privilege, and Steinert now appeals.

DISCUSSION

¶11 On appeal, Steinert renews his argument that the officers lacked
probable cause to arrest him for possession of drug paraphernalia at the scene of
the traffic stop. In response, the County correctly concedes that the officers lacked
probable cause to arrest Steinert for that offense. WISCONSIN STAT.
§ 961.571(1)(b)1. expressly states that the term “drug paraphernalia” excludes
“[h]ypodermic syringes, needles and other objects used or intended for use in
parenterally injecting substances into the human body.” As such, the syringe
found on Steinert’s person during the stop did not qualify as drug paraphernalia,
and the officers therefore lacked probable cause to arrest him for possession of
drug paraphernalia.

¶12 Absent a valid basis for his arrest at the scene of the stop, Steinert
next argues the circuit court erred by concluding that the officers did not violate
WIS. STAT. § 968.24 when they transported him to the sheriff’s office to perform
field sobriety tests. Section 968.24 permits a law enforcement officer to stop and
question a person in a public place, without arresting the person, when the officer

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“reasonably suspects that such person is committing, is about to commit or has
committed a crime.” The statute provides, however, that the temporary detention
and questioning “shall be conducted in the vicinity where the person was
stopped.” Sec. 968.24.

¶13 Steinert asserts that the officers transported him outside the vicinity
of the traffic stop when they moved him to the sheriff’s office, which was six
miles away. He therefore contends that his transportation to the sheriff’s office
was not permitted by WIS. STAT. § 968.24 and instead constituted a “de[ ]facto
arrest” without probable cause. As a result, Steinert argues that his subsequent
arrest for OWI at the sheriff’s office was unlawful. Because he was not lawfully
arrested, Steinert argues his refusal to submit to a blood test was not unreasonable,
and the circuit court thus erred by revoking his operating privilege. See State v.
Anagnos, 2012 WI 64, ¶43, 341 Wis. 2d 576, 815 N.W.2d 675 (noting that a court
may not revoke a defendant’s operating privilege if it determines that the
defendant was not lawfully placed under arrest).

¶14 The County does not address Steinert’s argument that his
transportation to the sheriff’s office was outside the vicinity of the stop and
therefore violated WIS. STAT. § 968.24. Instead, the County contends that Steinert
was lawfully arrested at the scene of the stop because the officers had probable
cause to arrest him for operating a motor vehicle with a detectable amount of a
restricted controlled substance in his blood. Although the officers erroneously
stated at the scene of the stop that they were arresting Steinert for possession of
drug paraphernalia, the County correctly notes that the legality of an arrest “does
not depend on whether the arresting officer articulates the correct legal basis for
the arrest” or on “the subjective motivation of the arresting officer.” State v.
Repenshek, 2004 WI App 229, ¶10, 277 Wis. 2d 780, 691 N.W.2d 369. Stated

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differently, “even when an officer acts under a mistaken understanding of the
crime committed, an objective test is used to determine the legality of the arrest.”
Id., ¶11.

¶15 Applying that objective test in the instant case, we agree with the
County that the officers had probable cause to arrest Steinert at the scene of the
traffic stop for operating a motor vehicle with a detectable amount of a restricted
controlled substance in his blood. The existence of probable cause presents a
question of law that we review independently. State v. Kutz, 2003 WI App 205,
¶13, 267 Wis. 2d 531, 671 N.W.2d 660. “Probable cause for arrest exists when
the totality of the circumstances within the arresting officer’s knowledge would
lead a reasonable police officer to believe that the defendant probably committed a
crime.” Id., ¶11. The information must be sufficient to lead a reasonable officer
to believe that the defendant’s involvement in a crime is more than a mere
possibility; however, the information need not rise to the level of proof beyond a
reasonable doubt, or even establish that the defendant’s guilt is more likely than
not. Id. In other words, probable cause “requires only that the facts available to
the officer would warrant a person of reasonable caution to believe that an offense
likely was committed.” State v. Nieves, 2007 WI App 189, ¶14, 304 Wis. 2d 182,
738 N.W.2d 125.

¶16 Here, the facts available to the officers would have warranted a
person of reasonable caution to believe that Steinert had likely violated WIS. STAT.
§ 346.63(1)(am), which provides that no person may operate a motor vehicle while
the person “has a detectable amount of a restricted controlled substance in his or
her blood.” The term “restricted controlled substance” includes
methamphetamine. See WIS. STAT. § 340.01(50m)(d). Notably, a conviction
under § 346.63(1)(am) does not require proof that the person was impaired at the

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time he or she operated a motor vehicle, only that a detectable amount of a
restricted controlled substance was present in his or her blood. See State v. Smet,
2005 WI App 263, ¶23, 288 Wis. 2d 525, 709 N.W.2d 474.

¶17 Before Steinert was placed under arrest at the scene of the traffic
stop, Johnson had observed that Steinert’s speech was slow and that he was
stumbling over his words. The officers also knew that a syringe, which is
commonly used to inject illegal drugs, had been found on Steinert’s person.2 In
addition, Johnson had prior experience with Steinert, which involved
methamphetamine. Steinert also told the officers that he had used
methamphetamine approximately 8.5 hours before the stop, and Johnson knew,
based on his training and experience, that methamphetamine can remain in a
person’s system for up to twenty-four hours. Taken together, these facts gave rise
to probable cause that Steinert had operated a motor vehicle with a detectable
amount of a restricted controlled substance in his blood.

¶18 In his reply brief, Steinert argues “the ability to opine [that] a
motorist has a detectable amount of meth at a given time is a question beyond the
ability of the average person.” He further contends that Johnson “lacked the
capacity to opine if Steinert was driving with a detectable amount of meth” in his
blood. Steinert then asserts that the general proposition that methamphetamine

2
Although Steinert’s possession of the syringe did not give rise to probable cause to
arrest him for possession of drug paraphernalia, the syringe may be considered in the totality-of-
the-circumstances analysis when determining whether probable cause existed to arrest Steinert for
operating a motor vehicle with a detectable amount of a restricted controlled substance in his
blood. See State v. Manlick, Nos. 2014AP2138-CR and 2014AP2626-CR, unpublished slip op.
¶¶10-11 (WI App Apr. 1, 2015); see also WIS. STAT. RULE 809.23(3)(b) (noting that an
unpublished opinion authored by a single judge and issued after July 1, 2009, may be cited for its
persuasive value).

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can remain in a person’s system for twenty-four hours does not establish probable
cause to believe that methamphetamine actually was present in his system 8.5
hours after he used it. He contends the record does not support a determination
that Johnson “had the qualifications to opine [that] meth probably was present [in
his blood] at that time.”

¶19 In support of this argument, Steinert cites State v. Chitwood, 2016
WI App 36, ¶¶1, 34, 369 Wis. 2d 132, 879 N.W.2d 786, where we held that a
DRE’s testimony about whether the defendant was under the influence of a
particular drug was “based on specialized knowledge” and was therefore subject to
WIS. STAT. § 907.02(1)—the statute governing the admissibility of expert
testimony. The present case, however, does not involve the admissibility of expert
testimony. It involves a determination of whether the facts gave rise to probable
cause to believe that Steinert operated his motor vehicle with a detectable amount
of a restricted controlled substance in his blood. Steinert does not cite any legal
authority in support of the proposition that Johnson was required to have any sort
of qualifications as an expert in order to make that determination.

¶20 As noted above, probable cause does not require an officer to
determine that an individual more likely than not committed a crime. Kutz, 267
Wis. 2d 531, ¶11. Instead, it merely requires that the facts available to the officer
“would warrant a person of reasonable caution to believe that an offense likely
was committed.” Nieves, 304 Wis. 2d 182, ¶14. Knowing that methamphetamine
can stay in a person’s system for up to twenty-four hours, and knowing that
Steinert had admitted using methamphetamine approximately 8.5 hours before the
stop, a reasonable officer in Johnson’s position could conclude it was likely that
Steinert had a detectable amount of a restricted controlled substance in his blood at
the time he operated his motor vehicle. Moreover, the officers also knew that

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Johnson’s speech was slow and stumbling, that he had previously been involved
with methamphetamine, and that a syringe had been found on his person. All of
these facts, taken together, gave rise to probable cause to arrest Steinert for
operating a motor vehicle with a detectable amount of a restricted controlled
substance in his blood.

¶21 We therefore agree with the County that Steinert was lawfully
arrested at the scene of the traffic stop. Steinert does not dispute that if the
officers had probable cause to arrest him at the scene of the stop, then his
subsequent transportation to the sheriff’s office did not violate WIS. STAT.
§ 968.24.3 Because Steinert was lawfully arrested, the circuit court properly
determined that his refusal to submit to an evidentiary chemical test of his blood
was unreasonable. Accordingly, we affirm the court’s judgment revoking
Steinert’s operating privilege.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)4.

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Under these circumstances, we need not address Steinert’s additional argument that the
circuit court erroneously exercised its discretion by refusing to consider a map that Steinert relied
upon to establish the distance between the traffic stop and the sheriff’s office. See Turner v.
Taylor, 2003 WI App 256, ¶1 n.1, 268 Wis. 2d 628, 673 N.W.2d 716 (court of appeals need not
address all issues raised by the parties if one is dispositive).

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