State v. Andrew Austin Keenan-Becht

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.
August 3, 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. 2022AP73-CR Cir. Ct. No. 2019CT180

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ANDREW AUSTIN KEENAN-BECHT,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Fond du Lac
County: PAUL G. CZISNY, Judge. Affirmed.

¶1 GROGAN, J.1 Andrew Austin Keenan-Becht appeals from a
judgment entered after a jury found him guilty of operating a motor vehicle with a

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2019-20).
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
No. 2022AP73-CR

prohibited alcohol concentration contrary to WIS. STAT. §§ 346.63(1)(b) and
346.65(2)(am)2.2 His challenge on appeal is to the circuit court’s denial of his
suppression motion.3 Keenan-Becht asserts that the police officer lacked probable
cause to arrest him for operating a motor vehicle while under the influence of an
intoxicant. This court affirms.

I. BACKGROUND

¶2 In February 2019, at about 2:00 a.m., former Wisconsin State
Trooper Matthew Ackley observed Keenan-Becht speeding and conducted a
traffic stop. The officer did not notice Keenan-Becht’s vehicle swerving or any
issues with it while it was pulling over and stopping. When Ackley approached
the vehicle, he immediately noticed that Keenan-Becht had “watery and red eyes
and the odor of intoxicating beverage[s] coming from inside the vehicle.” He
asked Keenan-Becht to step out of the vehicle as there were two additional
occupants in it. Keenan-Becht complied with the request, and the officer
determined the odor was coming from Keenan-Becht, who admitted he had come
from a bar where he had consumed “two beers.” Keenan-Becht agreed to perform
field sobriety tests and told the officer he had a prior OWI.

¶3 The horizontal gaze nystagmus (HGN) test resulted in showing four
of six clues that indicated intoxication, and Ackley testified that four clues on the

2
Specifically, the State alleged Keenan-Becht “did operate a motor vehicle with a
prohibited alcohol concentration of 0.08 or more, to-wit: did have a blood alcohol level of
.087[.]” The jury found Keenan-Becht not guilty of operating a motor vehicle while intoxicated,
second offense.
3
The Honorable Robert J. Wirtz presided over the suppression hearing and decided the
pre-trial motions. The Honorable Paul G. Czisny presided over the trial and entered the
judgment.

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No. 2022AP73-CR

HGN test is enough for an arrest. The walk-and-turn and one-leg stand tests each
showed only one clue of impairment. Ackley testified that a minimum of two
clues on either of those two tests is needed to make an arrest. Ackley did not
notice any slurred speech and confirmed Keenan-Becht produced his driver’s
license without difficulty.

¶4 After the field sobriety tests, Ackley believed he had probable cause
to arrest Keenan-Becht, but before arresting him, Ackley had Keenan-Becht take a
preliminary breath test (PBT). After the PBT, which registered as .091, Ackley
arrested Keenan-Becht, and an evidentiary test of his blood showed his blood
alcohol concentration (BAC) at .087.

¶5 The State charged Keenan-Becht with two counts: (1) operating a
motor vehicle while intoxicated (OWI), second offense, contrary to WIS. STAT.
§§ 346.63(1)(a) and 346.65(2)(am)2; and (2) operating with a prohibited alcohol
concentration, second offense, contrary to WIS. STAT. §§ 346.63(1)(b) and
346.65(2)(am)2. Keenan-Becht filed motions seeking to suppress the blood results
on the grounds that the officer lacked probable cause to conduct the PBT, the
officer ordered rather than requested that he perform the PBT, and that without the
PBT result, the officer did not have probable cause to arrest. Ackley was the only
witness who testified at the suppression hearing. He testified that he had been a
state trooper for five and one-half years, had specialized training, and had
conducted fifty-seven prior OWI stops or arrests before stopping Keenan-Becht.
Ackley testified about stopping Keenan-Becht for speeding, observing his watery
and red eyes, the odor of intoxicants emanating from him, and conducting the field
sobriety tests. He also testified that Keenan-Becht admitted he had been drinking
alcohol, had come from a bar, and had a prior OWI conviction.

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No. 2022AP73-CR

¶6 After the suppression hearing and supplemental briefing, the circuit
court ruled that although the PBT was unlawful, the officer had probable cause to
arrest even without reliance on the PBT. The circuit court found the time of day,
the watery and red eyes, the odor of an intoxicant coming from Keenan-Becht, his
admission to drinking alcohol, and the four clues on the horizontal gaze nystagmus
field sobriety test provided sufficient probable cause to arrest.

¶7 The case proceeded to a jury trial, which resulted in a conviction on
the prohibited alcohol concentration count. The circuit court sentenced Keenan-
Becht to five days in jail, imposed a “Forfeiture/Fine,” and ordered a twelve-
month license revocation and installation of an ignition interlock device. The
circuit court granted Keenan-Becht’s motion to stay the sentence pending appeal.
Keenan-Becht now appeals.

II. DISCUSSION

¶8 Keenan-Becht contends the circuit court erred in denying his
suppression motion as it relates to the issue of probable cause to arrest. He asserts
that under the totality of the circumstances, the officer did not have probable cause
to arrest him, and therefore, his arrest violated constitutional protections against
unreasonable search and seizure.

¶9 When reviewing a suppression motion, the circuit court’s findings of
fact will be upheld unless they are clearly erroneous. State v. Roberts, 196
Wis. 2d 445, 452, 538 N.W.2d 825 (Ct. App. 1995). However, whether a set of
facts constitutes probable cause is a question of law this court reviews de novo.
State v. Babbitt, 188 Wis. 2d 349, 356, 525 N.W.2d 102 (Ct. App. 1994). This
court examines the issue of probable cause anew and without deference to the
circuit court. See id. In deciding whether probable cause exists, this court looks at

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No. 2022AP73-CR

whether the totality of the circumstances within the officer’s knowledge at the
time would lead a reasonable police officer to believe the defendant was operating
a motor vehicle while under the influence of an intoxicant. See State v. Nordness,
128 Wis. 2d 15, 36-37, 381 N.W.2d 300 (1986). The objective facts before a
police officer need not prove guilt beyond a reasonable doubt; rather, they are
sufficient if they lead to the conclusion that a violation of the law is more than a
mere possibility. State v. Richardson, 156 Wis. 2d 128, 148, 456 N.W.2d 830
(1990).

¶10 Whether probable cause exists is an objective test. See id. at 148.
Probable cause exists if the totality of the circumstances “‘would lead a reasonable
police officer to believe that the defendant probably’” was driving under the
influence. See Nordness, 128 Wis. 2d at 35 (citations omitted). In reviewing
whether probable cause exists, courts may consider the officer’s training and
investigative experience. State v. Wille, 185 Wis. 2d 673, 683, 518 N.W.2d 325
(Ct. App. 1994).

¶11 Keenan-Becht contends that it was unreasonable to arrest him based
solely on his red eyes, odor of alcohol, admission to drinking, having come from a
bar, speeding at 2:00 a.m., and showing four of six clues on the HGN
field sobriety tests. He says the officer lacked probable cause to believe he was
breaking the law because so many other factors—such as only one clue on each of
two other field sobriety tests, lack of slurred speech, and no suggestion that he had
been swerving or otherwise driving erratically—indicate he was not driving under
the influence. But probable cause only requires that the totality of the
circumstances causes a reasonable officer to believe that Keenan-Becht was
probably driving under the influence. Although the factors Keenan-Becht sets
forth certainly can be considered in assessing whether probable cause exists, they

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No. 2022AP73-CR

do not control the determination. Each case must be assessed based on the factors
particular to that case. See State v. Mata, 230 Wis. 2d 567, 572, 602 N.W.2d 158
(Ct. App. 1999).

¶12 Probable cause existed under the totality of the circumstances here
based on Keenan-Becht’s admission to drinking, the odor of alcohol emanating
from his body, his red and watery eyes, speeding, the time of day (around bar
time), and the observation of four clues on the HGN test.4 Further, the officer
knew Keenan-Becht had a prior OWI conviction, which is another factor an

4
Keenan-Becht further contends this court should reverse the circuit court’s suppression
decision because he “passed” the other two field sobriety tests administered at the scene, the
circuit court found the officer’s testimony regarding these other two “passed” tests to be not
credible, and a 2007 “robustness” study reported that observing only four clues on the HGN test
is not definitive of a BAC of .08. See MARCELLINE BURNS, PH.D., NAT’L HIGHWAY TRAFFIC
SAFETY ADMIN., THE ROBUSTNESS OF THE HORIZONTAL GAZE NYSTAGMUS TEST 15 (2007),
https://rosap.ntl.bts.gov/view/dot/1821. This court rejects Keenan-Becht’s contentions.

First, this court, like the circuit court, did not rely on the other two field sobriety tests in
assessing whether probable cause existed for the arrest. And, although this court accepts the
circuit court’s findings on credibility related to those two tests, the squad video in the Record is of
limited value due to its poor quality, its tendency to freeze repeatedly, and its misaligned video
and audio tracks. Second, Keenan-Becht’s assertion that the robustness study suggested four
clues on the HGN test may equate to only .06 BAC does not change this court’s conclusion. As
explained, the totality of the circumstances included several other factors, in addition to the four
clues on the HGN test, to establish probable cause to arrest. Additionally, “Wisconsin has no
requirement that police must perform field sobriety tests in order to determine whether probable
cause exists that a person is operating a vehicle under the influence of alcohol.” State v.
Kennedy, 2014 WI 132, ¶21, 359 Wis. 2d 454, 856 N.W.2d 834. “That [a defendant]
successfully completed all of the properly administered field-sobriety tests does not … subtract
from the common-sense view that [a defendant] may have had a blood-alcohol level that violated
WIS. STAT. § 346.63(1), any more than innocent behavior automatically negates either probable
cause or even the lower reasonable-suspicion standard[.]” State v. Felton, 2012 WI App 114,
¶10, 344 Wis. 2d 483, 824 N.W.2d 871 (citation omitted). The relevant inquiry is whether the
facts would lead a reasonable police officer to believe that a violation probably had occurred or
was occurring. See Johnson v. State, 75 Wis. 2d 344, 348-49, 249 N.W.2d 593 (1977).
Although this may be a closer case than some, the officer had sufficient indicia to meet the
probable cause standard.

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No. 2022AP73-CR

officer may consider in the probable cause determination. See State v. Lange,
2009 WI 49, ¶33, 317 Wis. 2d 383, 766 N.W.2d 551. The fact that
Keenan-Becht did not display additional indicia of driving under the influence
does not negate the existing indicia from which a reasonable police officer could
conclude that Keenan-Becht probably was driving while under the influence of an
intoxicant.

¶13 Keenan-Becht claims there could be an innocent explanation for his
red, watery eyes and that a person is permitted to drive after drinking as long as
his blood alcohol concentration is under the prohibited limit. This is true, but
nevertheless, both of these indicia may be relied upon in forming probable cause.
See State v. Tullberg, 2014 WI 134, ¶35, 359 Wis. 2d 421, 857 N.W.2d 120 (“We
reaffirm that a law enforcement officer may consider bloodshot and glassy eyes to
be one of several indicators of intoxication, even though such eye descriptors may
have an innocent explanation.”); Lange, 317 Wis. 2d 383, ¶37 (admission of
drinking “strengthens the existence of probable cause”).

¶14 As our supreme court has often stated: “Drunk driving is
indiscriminate in the personal tragedy of death, injury, and suffering it levies on its
victims. It may transform an innocent user of a highway into a victim at any
time—with no advance notice and no opportunity to be heard.” Nordness, 128
Wis. 2d at 33. Moreover, drunk driving

is also a scourge on society: drunk driving exacts a heavy
toll in terms of increased health care and insurance
costs, diminished economic resources, and lost worker
productivity. It is an affliction which produces no
offsetting human or economic benefits; it engenders no
positive human or economic incentive. It destroys and
demoralizes personal lives and shocks society’s conscience.
It has no legitimate place in our society.

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No. 2022AP73-CR

Id. at 33–34.

¶15 Police officers patrolling Wisconsin roads must make in-the-moment
decisions, based on their training and experience, as to whether a driver probably
is driving under the influence. Determining whether a driver’s level of
intoxication is just over or just under the legal limit is one such decision officers
must make in real time based on the circumstances in the moment. Here, this
court cannot conclude that under all the circumstances, Ackley’s decision to arrest
was objectively unreasonable. Although Keenan-Becht certainly exhibited some
behavior suggesting he was not driving under the influence, he also displayed
multiple symptoms that could lead a reasonable police officer to conclude that he
probably was driving under the influence. A violation of the law was more than a
mere possibility. The circuit court did not err in denying Keenan-Becht’s
suppression motion.5

By the Court.—Judgment affirmed.

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

5
Keenan-Becht cites to two unpublished cases he believes offer persuasive value:
State v. Gonzalez, No. 2013AP2585-CR, unpublished slip op. (WI App May 8, 2014), and
State v. Meye, No. 2010AP336–CR, unpublished slip op. (WI App July 14, 2010). Neither case
applies. Gonzalez held that, absent any controlling law suggesting otherwise, odor of an
intoxicant alone does not support reasonable suspicion of intoxicated driving. Gonzalez,
No. 2013AP2585-CR, ¶18. The Gonzalez court specifically noted that the officer did not observe
any “physical indicators of intoxication, such as slurred speech or bloodshot eyes,” and the
defendant had not admitted to “consuming any alcoholic beverages.” Id., ¶14. In contrast,
Keenan-Becht did have a physical indicator of intoxication—red, watery eyes—and he admitted
to consuming alcoholic beverages. Likewise, Meye does not support Keenan-Becht’s claim that
the officer lacked probable cause to arrest him. Meye held that the odor of an intoxicant alone is
insufficient to provide an officer with reasonable suspicion. Meye, No. 2010AP336-CR, ¶1.
Again, Keenan-Becht’s case involves more indicia than the odor of an intoxicant.

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No. 2022AP73-CR

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