State v. Eric Lobato

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.
July 27, 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. 2021AP1687-CR Cir. Ct. No. 2020CT149

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-APPELLANT,

V.

ERIC LOBATO,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Walworth County:
DANIEL STEVEN JOHNSON, Judge. Reversed and cause remanded for further
proceedings.
No. 2021AP1687-CR

¶1 KORNBLUM, J.1 Eric Lobato was arrested for operating a motor
vehicle while intoxicated (OWI), second offense,2 after being pulled over at about
2:00 in the morning for driving almost twenty miles per hour over the speed limit.
The arresting officer observed that Lobato had bloodshot and glassy eyes and
detected a strong odor of intoxicants. The officer performed field sobriety tests
during which Lobato exhibited signs of impairment. Lobato refused a preliminary
breath test (PBT). Following his arrest, Lobato challenged the probable cause for
the PBT and the arrest. After a hearing, the circuit court determined that the
officer lacked probable cause to arrest Lobato because he had “passed” two of the
three field sobriety tests, which overcame all of the other factors in this case. We
disagree with the circuit court’s determination and reverse. We hold that under the
totality of circumstances, the officer in this case had probable cause to request a
PBT and to arrest Lobato.

Background

¶2 After his arrest, Lobato was charged with operating while
intoxicated, second offense. He filed a motion to suppress, arguing that the traffic
stop was unconstitutionally extended when he was transported from the location of
the stop to the Lake Geneva Police Department to perform field sobriety tests and
that the officer lacked probable cause to arrest Lobato. The following facts are
taken from the hearing on Lobato’s motion, which was held on April 6, 2021 and
continued on June 28, 2021. Walworth County Deputy Sheriff Daniel Simonsen,
who arrested Lobato, was the only witness to testify.

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.
2
WISCONSIN STAT. §§ 346.63(1)(a), 346.65(2)(am)2.

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No. 2021AP1687-CR

¶3 Simonsen testified that he had a total of fourteen years of law
enforcement experience, two and one-half years with the Walworth County
Sheriff’s Office and the remainder with a federal law enforcement agency. In the
early morning hours of January 19, 2020, Simonsen was performing stationary
traffic enforcement at the intersection of Highway 50 near Deer Path, in the Town
of Lyons. He observed a black Dodge pickup travelling eastbound on the highway
at a speed that was higher than the posted speed limit. Simonsen confirmed the
vehicle’s speed using radar to be seventy-four miles per hour; the posted speed
limit was fifty-five miles per hour. Simonsen pursued the truck and stopped it a
short time later.

¶4 Simonsen then made contact with Lobato, the driver and sole
occupant of the vehicle. Simonsen asked Lobato some standardized questions,
and during that conversation, he “observed bloodshot, glassy eyes as well as a
strong odor of intoxicants emitting from the vehicle and his person.” Simonsen
asked Lobato if he had had anything to drink that night, and Lobato replied that he
had had one beer. Simonsen testified that he had made between 100 and 250
arrests for OWI during his law enforcement career. Simonsen testified that based
on his experience, people usually under report the amount they have been
drinking. Simonsen called for a second patrol unit to assist, and when it arrived,
Lobato was placed in Simonsen’s squad car and transported to the Lake Geneva
Police Department for field sobriety tests due to the extremely cold temperatures.
The police department was 5.3 miles from the location of the stop.

¶5 After arriving at the police station, Simonsen administered three
standard field sobriety tests: the horizontal gaze nystagmus test (HGN), the walk
and turn, and the one-leg stand. On the HGN test, Simonsen looks for a total of
six clues, three for each eye. The minimum standard for stating that a person is

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No. 2021AP1687-CR

impaired is four clues. Simonsen observed all six of the clues in Lobato. The
body camera video showed Lobato stating that he was color blind. However,
Simonsen testified that this would not have affected the HGN test.

¶6 Simonsen then had Lobato perform the walk and turn test as well.
Officers look for eight clues during this test, but two clues are sufficient to
indicate that a person “has a high probability of being under the influence of a
drug.” Initially, Simonsen saw two clues. Upon review of his body camera video,
Simonsen detected a third clue. Simonsen then had Lobato perform the one-leg-
stand test. On that test, there are four clues. The “minimum standard again is 2
out of the 4 to determine if the person is reliably under the—or significantly [sic]
likelihood of being under the influence of alcohol or drugs.” Simonsen observed
one clue on this test. Simonsen testified that he did not recall if he had asked if
Lobato had any physical defects that would prevent him from performing these
tests. From reviewing the body camera video, Simonsen testified that Lobato had
said that he was cold, but did not disclose any physical ailments.

¶7 Based on Lobato’s performance on the HGN and the walk and turn
test, as well as on the odor of intoxicants and his admission to having had one
beer, Simonsen asked Lobato to take a PBT. Lobato refused. Based on the
totality of the circumstances, Simonsen testified that he had probable cause to
believe that Lobato was under the influence of a drug. Lobato was then arrested.

¶8 On cross-examination, Simonsen acknowledged familiarity with a
field sobriety tests instructor guide prepared by the National Highway Traffic
Safety Administration (NHTSA). Defense counsel proceeded to ask Simonsen
whether he observed several indicators of impairment listed in the guide.
Simonsen confirmed that he did not observe any of the attributes listed in the

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No. 2021AP1687-CR

guide to indicate an intoxicated driver while a vehicle is in motion, such as
weaving, lane departures, swerving to avoid objects, or straddling lane lines.
Simonsen also acknowledged that Lobato did not stop too far from the curb, stop
abruptly, or significantly vary his speed. Furthermore, Simonsen testified that
Lobato had not demonstrated any “vigilance problems” while driving, such as
driving without headlights, failing to signal, or responding slowly when Simonsen
activated his squad car lights. He also testified that Lobato had not exhibited any
“judgment problems,” such as following another vehicle too closely, making an
unsafe lane change, or driving on the wrong side of the road. Simonsen
acknowledged that he did not observe any of the aforementioned factors listed in
the guide for detecting impaired drivers.

¶9 Simonsen further testified, contrary to his report, that Lobato did not
have slurred speech. When questioned about the difference between his testimony
and his report, Simonsen testified that Lobato had “mild” slurred speech, which
“was more of my indication of like the way he was—umm—trying to describe
stuff. Maybe it was just my basic way of saying instead of slurred speech just
maybe disorientation instead.” Simonsen said Lobato seemed disoriented; “I
wasn’t buying his story where he was going and where he was coming from and
that stuff.” Simonsen testified that Lobato had a “strong odor of intoxicants,” but
could not say whether just the odor of intoxicants indicates that someone’s blood
alcohol content is above the legal limit. Simonsen confirmed the odor just verifies
that they have consumed an alcoholic beverage.

¶10 Regarding Lobato’s bloodshot eyes, Simonsen agreed that they were
not picked up on the body camera video but explained that, in his experience, this
is because the lights from the squad, the “take down lights and the spot light, all
that stuff” make the scene very white. The lights from his car were “essentially

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No. 2021AP1687-CR

bleaching out his eyes” on the video. Simonsen testified that his body camera
normally does not pick out that level of detail. However, on recross examination,
Simonsen admitted this was just speculation based on his experience.

¶11 As to the HGN test, Simonsen testified on cross examination that
two of the six clues were possibly invalid due to the manner in which he
performed the test. Even not counting those two clues, Simonsen still had
observed four clues on the HGN which, based on his training and experience,
indicated impairment. On the walk and turn test, the clue that was significant to
Simonsen was Lobato failing to maintain his balance. Simonsen had not asked
Lobato whether he suffered from any medical conditions that would affect his
balance. He was not concerned that Lobato was wearing cowboy boots, because
they had a low heel. Lobato also stepped off the line at step three. Simonsen was
not able to quantify how far someone could deviate from the line before they are
considered to have stepped off the line. On the one-leg stand, Lobato passed
because he only had one clue and needed two to show impairment. Simonsen
confirmed that on the video, when he asked Lobato to take the PBT, Simonsen
said he already had his mind made up to arrest Lobato.

¶12 In a ruling from the bench, the circuit court found that Simonsen had
reasonable suspicion to stop Lobato for speeding. The court also found that
Simonsen had reasonable suspicion to prolong the stop based on the strong odor of
intoxicants coming from the vehicle, Lobato being the only occupant of the
vehicle, and Lobato’s bloodshot and glassy eyes. The court further determined
that the decision to take Lobato to the Lake Geneva Police Station was reasonable
given its proximity to the location of the stop and the cold temperatures.

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No. 2021AP1687-CR

¶13 However, the court ruled that Simonsen did not have probable cause
to ask Lobato to take a PBT or to arrest him. The court found Simonsen’s
testimony about detecting a strong odor of alcohol, Lobato’s bloodshot and glassy
eyes and admission to drinking credible. Regarding the field sobriety tests, the
circuit court had mixed findings. First, the court disregarded the one-leg-stand test
because “only one clue was observed in that test and Deputy Simonsen did admit
that that test does not add on to probable cause to arrest.” Second, the court found
that Simonsen detected four clues on the HGN test based on his credible
testimony, but disregarded the other two clues because of problems regarding how
two parts of the test were conducted.

¶14 The major problem that the court saw, and the deciding factor in its
ruling, was the walk and turn test. After reviewing the body camera video, the
court discounted one of the clues—Lobato’s “stepping out of the instructional
stance” prior to the commencement of the test—because it did not hear Simonsen
tell Lobato to remain in that stance before starting the test. The court also did not
observe Lobato step off the line during the test. The court did count the clue of
Lobato’s raising his arms for balance during the test. The court did not consider
Lobato’s refusal to take the PBT important because Simonsen “testified that
regardless of whether he refused the PBT or not, he was already under arrest for
impaired driving.” Under the totality of circumstances, the court found no
probable cause for the arrest or requesting a PBT because Lobato passed two of
the three field sobriety tests. The court also noted that there “was no bad driving
or other indicia of intoxication except for the speeding” and stated that “the facts
that ended up prolonging the stop, the bloodshot and glassy eyes, strong odor of
intoxicants combined with the failure of one field sobriety test” did not provide
probable cause to ask Lobato to take a PBT or to arrest him.

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No. 2021AP1687-CR

Discussion

Standard of Review

¶15 When reviewing a circuit court’s decision on a motion to suppress
evidence, we apply the clearly erroneous standard to the court’s findings of fact.
State v. Guard, 2012 WI App 8, ¶14, 338 Wis. 2d 385, 808 N.W.2d 718.
However, we review the court’s application of constitutional principles to those
facts de novo. Id.

¶16 Whether Simonsen had probable cause to seek a PBT “is a legal
issue that we decide de novo, accepting the [circuit] court’s findings of fact unless
they are clearly erroneous.” State v. Felton, 2012 WI App 114, ¶8, 344 Wis. 2d
483, 824 N.W.2d 871. We apply a similar standard of review to the question
whether Simonsen had probable cause to arrest Lobato. See State v. Truax, 151
Wis. 2d 354, 359–60, 444 N.W.2d 432 (Ct. App. 1989).

Probable Cause to administer a PBT

¶17 Wisconsin gives law enforcement officers the authority to request a
PBT if they have probable cause to believe that a person is violating or has
violated WIS. STAT. § 346.63(1). WIS. STAT. § 343.303. This level of suspicion
has been described as greater than reasonable suspicion necessary for an
investigative stop, but lower than probable cause for arrest. Felton, 344 Wis. 2d
483, ¶8. “Probable cause is a ‘flexible, common-sense measure of the plausibility
of particular conclusions about human behavior.” Id., ¶9 (quoting State v. Lange,
2009 WI 49, ¶20, 317 Wis. 2d 383, 766 N.W.2d 551).

¶18 Here, the circuit court found that Lobato was speeding nineteen
miles per hour over the posted speed limit at the time he was stopped. The court

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No. 2021AP1687-CR

found Simonsen credible in his testimony that Lobato was the only occupant of the
vehicle, smelled strongly of alcohol, had bloodshot and glassy eyes, and admitted
to drinking at least one alcoholic beverage that evening.3 The court found these
facts sufficient to justify Simonsen in prolonging the stop to investigate further.
The court also found that Lobato had exhibited four of six clues on the HGN test,4
which Simonsen had testified were sufficient to indicate impairment.

¶19 The State does not challenge any of the circuit court’s factual
findings on appeal, and contends they were sufficient to meet the probable cause
threshold in WIS. STAT. § 346.63(1). We agree. Although we accept the court’s
findings of fact, when reviewing the totality of the circumstances de novo, we find
that the totality of circumstances gave Simonsen probable cause to request a PBT.

¶20 First, Lobato was going almost twenty miles per hour over the speed
limit at about two o’clock in the morning. Our courts have recognized speeding
and the time of a stop as factors that can support a finding of probable cause. See
State v. Adell, 2021 WI App 72, ¶25, 399 Wis. 2d 399, 966 N.W.2d 115 (speeding
is a relevant factor); State v. Wheaton, Nos. 2011AP1928, 2012AP73,
unpublished slip op. ¶25 (WI App Oct. 25, 2012) (“[T]here is no dispute that the
time of night may be a factor contributing to reasonable suspicion of impaired

3
Lobato casts doubt on the circuit court’s finding that Lobato had “bloodshot eyes.” On
review of the record, we conclude that the court’s finding was not clearly erroneous. The court
viewed the body camera video, listened to the testimony of Simonsen, and drew a reasonable
inference from the evidence that the lighting in the video obscured the bloodshot condition of
Lobato’s eyes. Determinations of credibility and how to resolve conflicts in testimony are for the
trier of fact, State v. Poellinger, 153 Wis. 2d 493, 503, 451 N.W.2d 752 (1990), and we see no
reason to disturb the circuit court’s finding on this point.
4
Lobato argues that the circuit court should have disregarded all of the clues from the
HGN test, rather than only two, because of procedural problems with conducting the test, but
provides no legal authority for this assertion.

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No. 2021AP1687-CR

driving.”). Second, Simonsen knew that Lobato had a prior offense for OWI,
which can also be considered. See State v. Goss, 2011 WI 104, ¶24, 338 Wis. 2d
72, 806 N.W.2d 918. Third, Lobato had glassy, bloodshot eyes, emitted a strong
odor of intoxicants, and had admitted drinking at least one alcoholic beverage that
night. See State v. Quartana, 213 Wis. 2d 440, 448, 570 N.W.2d 618 (Ct. App.
1997). Finally, Lobato also exhibited four of six clues of impairment on the HGN
test.

¶21 In reaching a contrary conclusion, the circuit court relied on the fact
that Lobato had “passed” two of the three field sobriety tests. While this is
certainly one factor that may be considered in assessing probable cause, it must be
considered together with the other factors listed above, not in isolation. Field
sobriety tests, as we have observed in another case, are not a scientific
measurement of impairment. Rather, “[t]hey are observational tools, not litmus
tests that scientifically correlate certain types or numbers of ‘clues’ to various
blood alcohol concentrations.” City of West Bend v. Wilkens, 2005 WI App 36,
¶17, 278 Wis. 2d 643, 693 N.W.2d 324. Wisconsin does not require law
enforcement officers to give field sobriety tests to establish probable cause. State
v. Kennedy, 2014 WI 132, ¶21, 359 Wis. 2d 454, 856 N.W.2d 834; State v. Wille,
185 Wis. 2d 673, 684, 518 N.W.2d 325 (Ct. App. 1994). Probable cause
determinations are made on a case-by-case basis based on the totality of the
circumstances. State v. Kasian, 207 Wis. 2d 611, 621-22, 558 N.W.2d 687 (Ct.
App. 1996). Thus, “passing” a field sobriety test does not, by itself, preclude a
finding of probable cause. Felton, 344 Wis. 2d 483, ¶10 (“That Felton
successfully completed all of the properly administered field-sobriety tests does
not … subtract from the common-sense view that Felton may have had a blood-
alcohol level that violated WIS. STAT. § 346.63(1) ….”). Even partial performance

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No. 2021AP1687-CR

on a field sobriety test can inform the officer and can form part of probable cause.
See State v. Colstad, 2003 WI App 25, ¶25, 260 Wis. 2d 406, 659 N.W.2d 394.
The observational clues derived from the field sobriety tests add to the totality of
circumstances. The circuit court did not faithfully apply the totality approach
when it elevated the lack of a minimum number of clues indicating impairment on
two of the tests over all of the other factors in this case.

¶22 Lobato argues that because Simonsen did not observe many of the
factors in the NHTSA guide (the source), he lacked probable cause for the PBT
and the arrest. As an initial matter, we note that Lobato’s counsel questioned
Simonsen extensively based on this source, but failed to make it part of the record
or to establish that this source is the sole arbiter of the factors supporting probable
cause. We do not even know its title, although from counsel’s description it
appears to be the DWI Detection and Standardized Field Sobriety Testing (SFST)
Instructor Guide (Feb. 2018).5 We thus cannot be sure of the source’s contents.
Assuming we have correctly identified the source, we previously have rejected a
defendant’s attempt to show a lack of probable cause based on an officer’s failure
to conduct field sobriety tests in accordance with the guide’s instructions. State v.
Kothbauer, No. 2020AP1406-CR, unpublished slip op. ¶31 (WI App May 3,
2022) (“[I]n Wisconsin, there is no requirement of strict compliance with the
NHTSA Manual as a prerequisite for [standard field sobriety tests] to be used in
determining probable cause of an OWI-related offense.”). Similarly here, nothing
in the record shows that ticking off some or all of the factors listed in the guide is
required to show probable cause. We have found nothing in Wisconsin law that

5
Copies of this guide are available at https://www.nhtsa.gov/dwi-detection-and-
standardized-field-sobriety-test-sfst-resources (last visited July 15, 2022).

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No. 2021AP1687-CR

requires that an officer must observe certain indicators of driving while under the
influence listed in the guide in order to have probable cause.

¶23 Lobato further argues that he did not exhibit other factors that may
indicate impairment. This selective view of the evidence is at odds with the
totality of the circumstances analysis we apply when assessing probable cause.
That is, we can take note of what is absent but must consider it along with the
factors suggesting impairment that are present.

¶24 Finally, Lobato argues that because Simonsen could not correlate a
strong odor of intoxicants with a specific blood alcohol content in excess of the
legal limit, we should disregard Simonsen’s observation that he detected a strong
odor of alcohol. Lobato cannot point to any Wisconsin case that requires an
officer to correlate the detection of odor of alcohol with a specific blood alcohol
content, and the record is devoid of evidence that this correlation is even possible.
Nor does Wisconsin law require an officer to have proof beyond a reasonable
doubt that a driver has violated WIS. STAT. § 346.63(1) to seek a PBT. Wisconsin
law only requires that under the totality of circumstances, the officer has probable
cause. WIS. STAT. § 343.303.

¶25 In this case, looking at the totality of circumstances, we hold that
sufficient evidence existed to lead a reasonable law enforcement officer to believe
that Lobato was operating a motor vehicle while under the influence of an
intoxicant. These factors include Lobato’s high rate of speed, the strong odor of
intoxicants coming from the car, his bloodshot and glassy eyes, admission of
drinking, and exhibition of four of six clues on the HGN. Notwithstanding the
absence of erratic driving and other indicia of impairment, these considerations
were sufficient to provide probable cause to Simonsen, an experienced law

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No. 2021AP1687-CR

enforcement officer who had performed more than 100 OWI arrests, to request a
PBT.

Probable Cause to Arrest

¶26 Whether Simonsen had probable cause to arrest Lobato after he
refused to take a PBT depends on whether Simonsen knew of “evidence which
would lead a reasonable police officer to believe that the defendant probably
committed a crime.” Truax, 151 Wis. 2d at 359. “Probable cause to arrest is to be
judged by the factual and practical considerations of everyday life on which
reasonable and prudent persons, not legal technicians, act.” Id. at 360. “The
evidence need not be sufficient to show guilt beyond a reasonable doubt, nor even
to prove that guilt is more probable than not. The information need only lead a
reasonable officer to believe that guilt is more than a possibility.” Id. (citation
omitted).

¶27 We look at the totality of circumstances, not just one particular field
sobriety test. As stated above, just as many factors have supported a request for a
PBT, the same factors support probable cause for arrest, including bloodshot eyes,
an odor of intoxicants, speeding, admission of drinking, a prior OWI conviction,
the time of day, and the officer’s experience. See Kennedy, 359 Wis. 2d 454, ¶22;
Lange, 317 Wis. 2d 383, ¶¶28-33.

¶28 Under the totality of the circumstances, we agree with the State that
in this case, the record contains more than sufficient evidence to meet the probable
cause to arrest standard. When considering all the potential signs of impairment
observed by Deputy Simonsen together, a reasonable officer would believe that it
was probable that Lobato was operating a motor vehicle while under the influence.

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No. 2021AP1687-CR

¶29 All of the factors discussed above are relevant here. Considered
together, the time of night of the stop (around 2:00 a.m.), the strong odor of
intoxicants, Lobato’s bloodshot and glassy eyes, his high rate of speed, and
exhibiting four of six clues on the HGN test support a finding a probable cause. In
addition, Lobato’s refusal to take a PBT is also evidence of probable cause. See
State v. Babbitt, 188 Wis. 2d 349, 363, 525 N.W.2d 102 (Ct. App. 1994) (field
sobriety tests). We conclude that these factors are sufficient to establish probable
cause even if the officer, at the time of the arrest, told Lobato that he had made the
decision to arrest regardless of whether Lobato consented to the PBT.

¶30 In conclusion, the totality of the circumstances support probable
cause for arrest, because they would lead a reasonable officer to believe “that the
defendant probably committed a crime.” Johnson v. State, 75 Wis. 2d 344, 348,
249 N.W.2d 593 (1977) (citation omitted).

Timely filing of Brief

¶31 Finally, Lobato, argues that we should disregard the State’s brief
because it was filed a day late. WISCONSIN STAT. RULE 809.19(1) requires that
the appellant’s brief be filed within forty days of the filing of the record. Lobato
argues that the record was filed on October 19, 2021, and the brief was filed on
November 29, 2021, making it one day late. Our review of the record shows that
although the clerk certified the record on October 19, 2021, our court did not
receive the certification until October 20, 2021. Thus, the brief was timely filed.

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No. 2021AP1687-CR

Conclusion

¶32 For the foregoing reasons, we hold that Simonsen had probable
cause to request a PBT and to arrest Lobato. Therefore, the order of the circuit
court is reversed and this case is remanded for further proceedings.

By the Court.—Order reversed and cause remanded for further
proceedings.

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

15