County of Jefferson v. Julianne Trista Wedl

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.
September 9, 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. 2022AP328 Cir. Ct. No. 2019TR8850

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

COUNTY OF JEFFERSON,

PLAINTIFF-RESPONDENT,

V.

JULIANNE TRISTA WEDL,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Jefferson County:
DENNIS P. MARONEY, Judge. Affirmed.

¶1 GRAHAM, J.1 Julianne Wedl was found guilty of operating a
motor vehicle while under the influence of an intoxicant, first offense. On appeal,

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(c) (2019-20).
All references to the Wisconsin Statutes are to the 2019-20 version.
No. 2022AP328

Wedl argues that the circuit court erroneously denied her pretrial motion to
suppress evidence obtained in an investigation because the investigation was not
supported by reasonable suspicion. I conclude that, by the time that Wedl was
seized for constitutional purposes, there was reasonable suspicion to believe that
she was driving with a prohibited alcohol concentration or while under the
influence of an intoxicant to a degree that rendered her incapable of safely driving.
Accordingly, the circuit court properly denied Wedl’s suppression motion, and I
affirm the order.

BACKGROUND

¶2 The following facts, which are generally undisputed, are taken from
the hearing on Wedl’s motion to suppress. The two officers involved in her arrest,
Deputy Michael Williams and Deputy William Johnson, both testified during the
hearing and the circuit court appeared to credit their testimony.

¶3 Shortly after midnight on November 28, 2019, law enforcement was
called to the scene of a vehicle engulfed in flames. Deputy Williams was the first
on-duty officer to arrive on the scene. Upon arrival, he made contact with Wedl
and another individual who was an off-duty police officer. Wedl, who had been
driving by and spotted the burning vehicle, had been concerned that somebody
might be trapped inside and had pulled over to render assistance.

¶4 When Williams first approached Wedl, she appeared to be in shock.
Wedl told Williams that she had tried to look into the vehicle, but she had been
unable to determine whether anyone was inside.

¶5 During their discussion, Williams detected “an odor of intoxicants
emitting from [Wedl’s] breath when she spoke,” which made him suspect that she

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had been operating her motor vehicle while intoxicated (OWI).2 Williams did not
convey his suspicions to Wedl. According to his later testimony, Williams “told
[Wedl] that somebody would be with her shortly … to get a witness statement in
regards to the vehicle fire.” He suggested that Wedl wait in the back of his squad
car because it was “chilly” outside, and he left to address the fire.

¶6 Unbeknownst to Wedl, Williams arranged for another officer to
come to the scene for a “possible OWI investigation.” Deputy Johnson, who had
been employed as a deputy for 10 years and had received training in the
investigation of OWI-related offenses, responded to Williams’ radio dispatch and
arrived on the scene shortly thereafter.

¶7 Upon his arrival, Johnson made contact with Wedl and the off-duty
officer, who were standing outside of a vehicle. When Johnson approached, the
off-duty officer asked whether anything more was needed of him, and Johnson
told the off-duty officer he could go. At that point, only Johnson and Wedl
remained. Johnson later described Wedl as “distraught” and “crying.” He asked
Wedl what brought her to the scene and what she had observed. Wedl indicated
that she had been driving home when she came across the burning vehicle, and
that, when she attempted to open the door, the flames came toward her forcing her
to back away.

2
The Wisconsin Jury Instructions use “OWI” as an umbrella term, which encompasses
operating while under the influence of an intoxicant (to a degree that renders the driver incapable
of safely driving), contrary to WIS. STAT. § 346.63(1)(a), and operating with a prohibited alcohol
concentration (as defined by WIS. STAT. § 340.01(46m)), contrary to WIS. STAT. § 346.63(1)(b).
I follow the same convention in this opinion.

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¶8 In his testimony, Johnson acknowledged that Wedl was cooperative
throughout the interaction, and he did not observe Wedl slur her speech, speak in
an unusual manner, stumble, or struggle to maintain her balance. However,
Johnson “could detect an odor of intoxicants coming from [Wedl’s] breath” and,
in the report he filled out within hours of her arrest, he described the odor as
“strong.” Johnson also observed that Wedl’s eyes were “glossy [sic] and
bloodshot.”

¶9 Johnson asked Wedl whether she had been drinking. Wedl stated
that she had been at a friend’s house and had consumed “a few” or a “couple”
glasses of wine, and, that the glasses were “regular sized.” Johnson then informed
Wedl that he was going to administer field sobriety tests. Ultimately, Johnson
determined that Wedl was intoxicated.

¶10 Wedl was later charged with two counts: operating a motor vehicle
while under the influence of an intoxicant in violation of WIS. STAT.
§ 346.63(1)(a) and operating a motor vehicle with a prohibited alcohol
concentration (PAC) in violation of § 346.63(1)(b), both as first offenses.
Throughout the remainder of this opinion, I refer to these two offenses collectively
as “OWI-related offenses.”

¶11 Wedl pled not guilty and moved to suppress the statements and
evidence gathered during an allegedly “unlawful seizure” that was initiated by
Williams and “extended” by Johnson. She argued that the officers lacked
reasonable suspicion to detain her for an OWI investigation and to administer field
sobriety tests.

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¶12 Following the evidentiary hearing, the circuit court denied Wedl’s
motion.3 It concluded that the officers had reasonable suspicion to believe that
Wedl “was consuming alcohol and driving,” and therefore it was lawful for them
to ask her to perform field sobriety tests. The court did not specifically comment
on when Wedl was seized for constitutional purposes.

¶13 The circuit court later clarified that it had not concluded that the
officers only needed to have a reasonable suspicion that Wedl was drinking and
driving to administer field sobriety tests, but rather, that they needed to have a
reasonable suspicion that she was intoxicated. The circuit court then reaffirmed its
earlier decision to deny Wedl’s motion to suppress, concluding that the officers
had reasonable suspicion to believe that Wedl was intoxicated based on Wedl’s
admission to drinking and driving, the odor of intoxicants on her breath, Wedl’s
glassy and bloodshot eyes, and the fact that her encounter with law enforcement
occurred at “bar time.”

¶14 Wedl was found guilty of operating under the influence, and the
PAC charge was dropped by operation of law. She appeals based on the circuit
court’s denial of her motion to suppress.

DISCUSSION

¶15 The review an order granting or denying a suppression motion
presents an issue of constitutional fact. State v. Howes, 2017 WI 18, ¶17, 373

3
The Honorable Robert Dehring presided over the proceedings addressing Wedl’s
motion to suppress. The Honorable Dennis Maroney, Reserve Judge, presided over Wedl’s
eventual trial and found her guilty of operating under the influence of an intoxicant contrary to
WIS. STAT. § 346.63(1)(a).

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Wis. 2d 468, 893 N.W.2d 812. On appeal, I uphold the circuit court’s findings of
fact unless they are clearly erroneous, and I independently review the application
of constitutional principles to those facts. State v. Young, 2006 WI 98, ¶17, 294
Wis. 2d 1, 717 N.W.2d 729.

¶16 Wedl challenges the circuit court’s denial of her motion to suppress
on two grounds. First, she asserts that Deputy Williams lacked reasonable
suspicion to detain her for an OWI investigation. Second, she asserts that Deputy
Johnson lacked reasonable suspicion to “expand” Williams’ initial detention to
administer field sobriety tests. In response, the State argues that Williams never
“seized” Wedl, and therefore, he did not need reasonable suspicion to ask her to
remain on the scene to give a witness statement. According to the State, Wedl was
not seized until Johnson told her he would be administering field sobriety tests,
and, at that point, Johnson had the reasonable suspicion necessary to seize Wedl
and administer those tests.

¶17 In the analysis that follows, I first consider whether and when Wedl
was seized, ultimately concluding that she was not seized for Fourth Amendment
purposes until Johnson informed her that he would be administering field sobriety
tests. I then consider whether Johnson had reasonable suspicion that Wedl had
committed an OWI-related offense at that time, and I conclude that he did.

I

¶18 The Fourth Amendment to the United States Constitution prohibits
unreasonable “searches” and “seizures.” U.S. CONST. amend. IV; see also WIS.
CONST. art. I, § 11 (providing similar prohibitions and protections). The
protections of the Fourth Amendment are implicated when a government agent
“searches” or “seizes” a person or their property. Young, 294 Wis. 2d 1, ¶23.

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¶19 Investigatory stops, sometimes referred to as Terry stops, are
considered to be seizures within the meaning of the Fourth Amendment. Id., ¶20
& n.6 (citing Terry v. Ohio, 392 U.S. 1, 20-22 (1968)). Such stops, which
typically entail only temporary questioning, are less intrusive than custodial arrests
and are constitutional if police have reasonable suspicion to believe that a crime
has been, is being, or is about to be committed. Young, 294 Wis. 2d 1, ¶20.

¶20 “Not all encounters with law enforcement officers are ‘seizures’
within the meaning of the Fourth Amendment.” State v. Williams, 2002 WI 94,
¶20, 255 Wis. 2d 1, 646 N.W.2d 834; see also County of Grant v. Vogt, 2014 WI
76, ¶19, 356 Wis. 2d 343, 850 N.W.2d 253. For example, a seizure does not occur
every time a law enforcement officer approaches an individual on the street and
asks questions. See Williams, 255 Wis. 2d 1, ¶22; Vogt, 2014 Wis. 2d ¶24. Such
encounters are considered to be consensual in nature, “[a]s long as a reasonable
person would [feel they were] free to disregard the police presence and go about
[their] business.” Young, 294 Wis. 2d 1, ¶18 (internal citation omitted).
“Generally, … police-[individual] contact [only] becomes a seizure … ‘when an
officer by means of physical force or show of authority, has in some way
restrained [a person’s] liberty.’” Id., ¶18 (quoting Williams, 255 Wis. 2d 1, ¶20
(quoting United States v. Mendenhall, 446 U.S. 544, 552 (1980))).

¶21 To decide whether an individual has been “seized” by “show of
authority,” we ask whether, in view of “all the circumstances surrounding the
incident, a reasonable person would not have felt free to leave.” Young, 294 Wis.
2d 1, ¶37 (citing Mendenhall, 446 U.S. 552). Circumstances that might indicate a
seizure include “‘the threatening presence of several officers, the display of a
weapon by an officer, some physical touching of the person …, or the use of
language or tone of voice indicating compliance with the officer’s request might

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No. 2022AP328

be compelled.’” Williams, 255 Wis. 2d 1, ¶21 (quoting Mendenhall, 446 U.S. at
554-55).

¶22 With those legal principles in mind, I now examine whether and
when Wedl was seized. Wedl argues that Williams seized her when he told her
“somebody would be with her shortly … to get [her witness] statement in regards
to the vehicle fire” and suggested that she remain in the back of his squad car.
Wedl contends that she complied with what she alleges was Williams’ “show of
authority” by remaining on the scene until Johnson arrived, and that no reasonable
person in her position would have felt free to leave before an officer arrived to
record their witness statement. I conclude that any show of authority by Williams
was insufficient to give rise to a reasonable belief that Wedl was not free to leave.

¶23 First, Williams did nothing to cause Wedl to be physically present at
the scene—she was already present when Williams arrived.

¶24 Second, there is no evidence suggesting that Williams commanded
Wedl to remain on the scene, or that he even explicitly told her to do so. See Vogt,
356 Wis. 2d 343, ¶¶40, 43 (considering whether officer commanded suspect to roll
down window). Instead, the evidence suggests that Williams merely informed
Wedl that “somebody would be with her shortly … to get [her] witness statement,”
and that he suggested, rather than commanded, that she wait in the back of his
squad car to keep warm. There is no evidence that Williams spoke in a harsh or
threatening tone of voice that suggested Wedl’s compliance with his request was
mandated. See id., ¶¶11-12, 43 & n.18 (considering whether officer’s voice was
“forceful,” and whether he said “please” and “thank you”).

¶25 Third, there is no evidence that Williams flaunted any symbols of his
official authority in an attempt to compel Wedl to remain on the scene. Although

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Williams activated his squad car lights when he arrived, he did so prior to
encountering Wedl, and it does not appear that his lights were directed at Wedl or
her vehicle. See Young, 294 Wis. 2d 1, ¶25 (considering officer’s use of a
spotlight, emergency flashers, and whether he activated his red and blue
emergency lights). Instead, it appears that Williams activated his squad car lights
to alert passing traffic of the dangerous road condition involving the burning
vehicle.

¶26 Finally, there is no evidence that Williams, who was the sole on-duty
officer on the scene at that time, restrained Wedl’s freedom of movement in any
manner, either directly or indirectly. For example, Williams did not physically
touch Wedl, nor did he usher her into his squad car. See Williams, 255 Wis. 2d 1,
¶¶20-21 (citing Mendenhall, 446 U.S. at 554-55) (restraining a person’s freedom
of movement is an objective indicator of a “seizure.”). Williams did not park his
squad car in front of Wedl’s vehicle in an attempt to prevent her from leaving. See
Vogt, 356 Wis. 2d 343, ¶¶12, 42 (considering the location of an officer’s squad car
in relation to the suspect’s vehicle and whether other physical impediments may
have prevented a reasonable person from leaving). On the contrary, it appears
that, after their brief exchange, Williams left Wedl completely to her own devices.
Indeed, the evidence suggests that Wedl did not feel compelled to stay in
Williams’ squad car and was instead standing outside talking with the off-duty
officer at the time Johnson arrived.

¶27 Wedl argues that the fact that Williams suspected her of OWI should
be pertinent to the analysis. That is, she contends that Williams kept her at the
scene on a “ruse,” and that this “ruse” should somehow factor into the analysis of
whether Wedl was seized. However, the test for whether a suspect has been seized
is objective—the question is whether a reasonable person in Wedl’s position,

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knowing all of the facts that Wedl was aware of in that moment, would have felt
that she was not free to leave. See Vogt, 356 Wis. 2d 343, ¶30 (citing Williams,
255 Wis. 2d 1, ¶23). The test leaves no room for the subjective mindsets of the
officers, unless the officers somehow communicate or physically manifest their
beliefs or opinions to the suspect. See generally Williams, 255 Wis. 2d 1, ¶23.
Likewise, the test does not consider information learned by the suspect about the
officer’s subjective mindset after the fact. Therefore, any “ruse” by Williams is
not germane to the analysis.

¶28 Stepping back, it appears that Wedl remained on the scene, believing
herself to be a witness and not a suspect, because of a desire or engrained social
pressure to cooperate with the investigation. To be sure, individuals “may feel
tethered by social norms to [comply with] an officer’s request and may consent in
order to avoid the taboo of disrespecting an officer of the law.” Vogt, 356 Wis. 2d
343, ¶31. However, the fact that individuals may willingly respond to police
requests “‘hardly eliminates the consensual nature of the response’” and does not
transform the consensual encounter into a seizure. Id., ¶24 (quoted source
omitted); see also Young, 294 Wis. 2d 1, ¶37. Because any show of authority by
Williams was insufficient, I conclude that he did not seize Wedl.

¶29 Having reached that conclusion, I now consider whether and when
Deputy Johnson’s contact with Wedl resulted in a seizure. In so doing, I observe
that Wedl does not explicitly develop any alternative theory of when she was
seized. The State, by contrast, contends that Johnson first seized Wedl for Fourth
Amendment purposes when he told her that he would be conducting field sobriety
tests, but not before.

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¶30 I agree with the State that Wedl was not seized before Johnson
informed her that he would be conducting field sobriety tests. In so doing, I reject
as immaterial a suggestion in Wedl’s brief that a reasonable person in her position
may have suspected that she had become a suspect when Johnson allowed the off-
duty officer to leave, but did not tell Wedl that she too could leave. Wedl does not
argue that she, like the off-duty officer, ever asked or attempted to leave, nor does
she argue that Johnson made any display of his authority that prevented her from
doing so. I likewise reject any argument that Wedl could make that Johnson’s
initial questioning amounted to a seizure. Although Johnson had already
commenced an OWI investigation when he began questioning Wedl, an
investigatory stop does not occur merely because law enforcement approaches an
individual to ask questions, and Johnson’s subjective intentions are not dispositive
of the inquiry. See Vogt, 356 Wis. 2d 343, ¶¶24-25 (explaining that police
questioning by itself is unlikely to result in a seizure, and that the seizure test is
objective). Throughout the brief duration of his questioning, there is no evidence
that Johnson made any threatening or intimidating display of his authority, or that
he restrained Wedl’s freedom of movement in any manner. Accordingly,
Johnson’s questioning of Wedl amounted to a consensual encounter, not a seizure.
Cf. Young, 294 Wis. 2d 1, ¶18 (“Generally … police-[individual] contact only
becomes a seizure … ‘when an officer by means of physical force or show of
authority has in some way restrained the liberty of the [individual].’” (quoted
sources omitted)).

¶31 The State argues that Wedl was seized when Johnson told Wedl he
would be administering field sobriety tests. The State does not cite any authority
for this proposition, but I assume without deciding that the State is correct, and
that no reasonable person in Wedl’s position would have felt free to leave or to

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refuse to take the tests without facing legal consequences for doing so. Therefore,
I conclude that Wedl was first seized for Fourth Amendment purposes when
Johnson informed her that he would be conducting field sobriety tests.

II

¶32 As discussed, for an investigatory stop to be constitutional, it must
be supported by reasonable suspicion that a person has committed or is
committing a crime. County of Jefferson v. Renz, 231 Wis. 2d 293, 310, 603
N.W.2d 541 (1999); see also State v. Genous, 2021 WI 50, ¶7, 397 Wis. 2d 293,
961 N.W.2d 41. The test for reasonable suspicion is grounded in common sense—
what would a reasonable police officer reasonably suspect, in light of their training
and experience, based on the totality of facts and circumstances and the reasonable
inferences to be drawn therefrom. State v. Post, 2007 WI 60, ¶13, 301 Wis. 2d 1,
733 N.W.2d 634.

¶33 I now consider whether Johnson’s seizure of Wedl to administer
field sobriety tests was supported by reasonable suspicion that Wedl had
committed an OWI-related offense, “the investigation of which would be furthered
by such tests.” State v. Hogan, 2015 WI 76, ¶37, 364 Wis. 2d 167, 868 N.W.2d
124. In so doing, I bear in mind that reasonable suspicion is not a high bar,
Genous, 397 Wis. 2d 293, ¶8 (citing Young, 294 Wis. 2d 1, ¶21; State v. Eason,
2001 WI 98, ¶19, 245 Wis. 2d 206, 629 N.W.2d 625), and “‘the level of suspicion
that the [reasonable suspicion] standard requires is considerably less than proof of
wrongdoing by a preponderance of the evidence, and obviously less than is
necessary for probable cause[.]’” State v. Nimmer, 2022 WI 47, ¶25, 402 Wis. 2d
416, 975 N.W.2d 598 (quoted source omitted).

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¶34 Here, it is undisputed that Johnson knew from Wedl’s own
statements that Wedl had been drinking wine at a friend’s house, and that she had
driven her vehicle after doing so. Wedl argues, and I agree, that more was needed
for Johnson to reasonably suspect she had committed an OWI-related offense.

¶35 Under Wisconsin law, not every person who has consumed alcoholic
beverages prior to operating a motor vehicle has committed an OWI-related
offense. See WIS JI—CRIMINAL 2663. Instead, the law specifically prohibits a
person from driving with a PAC—which, as relevant here, was .08 or more, WIS.
STAT. § 340.01(46m)—or from driving under the influence of an intoxicant “to a
degree that renders him or her incapable of safely driving.” WIS. STAT.
§ 346.63(1)(b), (a); see also WIS JI—CRIMINAL 2663 (being “under the influence”
of an intoxicant as that phrase is used in § 346.63(1)(a) means that the “person has
consumed a sufficient amount of alcohol to cause the person to be less able to
exercise the clear judgment and steady hand necessary to control the motor
vehicle”). Accordingly, it was not enough for Deputy Johnson to know that Wedl
drank alcohol before she drove her motor vehicle. The critical inquiry is whether,
based on the totality of facts and circumstances known to Johnson, he could
reasonably suspect that Wedl’s blood alcohol concentration was more than .08, or
that she was under the influence of an intoxicant to a degree that impaired her
ability to drive. See State v. Gentry, No. 2012AP59-CR, unpublished slip. op. ¶6
(WI App May 24, 2012); State v. Dotson, No. 2019AP1082-CR, unpublished slip.
op. ¶15 (WI App Nov. 24, 2020); County of Sauk v. Leon, No. 2010AP1593,

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No. 2022AP328

unpublished slip. op. ¶28 (WI App Nov. 24, 2010).4 Facts that may give rise to a
reasonable belief that a suspect has driven while intoxicated include observations
of a suspect’s driving, admissions to drinking, or physical indicators of
intoxication.

¶36 In this case, neither officer observed Wedl’s driving. Wedl points
out that this fact distinguishes her case from many other OWI cases, in which the
OWI investigation follows on the heels of a traffic stop initiated after an officer
observes a mechanical defect, a traffic violation, or unsafe driving. See, e.g., State
v. Colstad, 2003 WI App 25, 260 Wis. 2d 406, 659 N.W.2d 394; State v. Betow,
226 Wis. 2d 90, 593 N.W.2d 499 (Ct. App. 1999). In such cases, the officer’s
observations of the suspect’s driving often contribute to a determination that there
was reasonable suspicion to expand the scope of the traffic stop and commence an
OWI investigation. See State v. Adell, 2021 WI App 72, ¶25, 399 Wis. 2d 399,
966 N.W.2d 115 (speeding is a plus factor that adds to reasonable suspicion that a
suspect has committed an OWI-related offense); Town of Freedom v. Fellinger,
No. 2013AP614, unpublished slip. op. ¶24 (WI App Aug. 6, 2013) (defendant’s
speeding contributed to reasonable suspicion of an OWI-related offense because it
“showed [the defendant’s] nonconformance with the law”).

4
The situation would be different if the suspect were subject to a PAC of .02 and the
officer was aware of that fact. See State v. Goss, 2011 WI 104, ¶¶25-27, 338 Wis. 2d 72, 806
N.W.2d 918 (odor of intoxicants on driver that officer knew was subject to a .02 PAC alone
provided probable cause for a preliminary breath test because the officer knew that the suspect
“could drink only a very small amount before exceeding the legal limit”).

Throughout this opinion, I cite authored but unpublished opinions by this court for their
persuasive value consistent with WIS. STAT. § 809.23(3).

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¶37 That said, Johnson did not need to observe Wedl’s driving to
reasonably suspect that she had driven while intoxicated so long as he was aware
of other facts that created reasonable suspicion of intoxication.

¶38 Wedl emphasizes that Johnson did not observe several typical
physical indicators of intoxication, such as slurred speech, stumbling, or
belligerent behavior. Although that is true, Johnson nonetheless was aware of
three significant facts that, taken together along with the reasonable inferences
derived therefrom, provided reasonable suspicion that Wedl had a PAC of .08 or
more, was under the influence of an intoxicant to a degree that impaired her ability
to drive, or both.

¶39 First, Wedl told Johnson that she had consumed “a couple” or a
“few” regular-sized glasses of wine. Wedl contends that this admission
established only that she had been legally drinking and driving, and no more, and
perhaps I would agree if Wedl’s admission were the only indicator of intoxication.
I nevertheless observe that a “couple” or a “few” glasses of wine is not an
insignificant amount of alcohol and, according to charts published by the state
department of transportation, may be enough to push some individuals over the
legal limit, depending on their body weight and how recently they consumed those
glasses of wine.5

¶40 Wedl suggests that the fact that she readily admitted to consuming
alcohol is indicative of innocence rather than guilt. To be sure, a suspect’s denial
or attempt to cover up obviously true facts sometimes suggests consciousness of

5
See Wis. Dep’t of Transportation, .08 BAC Law in Wisconsin, available at
https://wisconsindot.gov/Documents/safety/education/drunk-drv/08law.pdf.

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No. 2022AP328

guilt. But the opposite premise is not accurate. A suspect’s admission of
inculpatory facts adds to reasonable suspicion, rather than detracting from it. See
Renz, 231 Wis. 2d at 316 (suspect’s admission to drinking three beers earlier in
the evening was one fact that contributed to probable cause).

¶41 Second, the circuit court found that Johnson detected a “strong odor
of intoxicants” emitting directly from Wedl’s breath.6 That Johnson, an officer
trained in administering OWI investigations,7 detected the strong odor of
intoxicants emitting directly from Wedl’s breath adds to the reasonable suspicion
equation. See Renz, 231 Wis. 2d at 316-17 (odor of intoxicants is an indicator of
intoxication); cf. State v. Gonzalez, No. 2013AP2585-CR, unpublished slip. op.
(WI App May 8, 2014) (no reasonable suspicion where the sole indicator of
intoxication was the odor of intoxicants emitting from the vehicle, but not
specifically from the driver); State v. Meye, No. 2010AP336, unpublished slip. op.
(WI App July 14, 2010) (the strong odor of intoxicants coming from one or both
of two individuals who had just exited a vehicle did not, by itself, suffice to
establish reasonable suspicion).

6
Wedl attempts to undermine confidence in the circuit court’s finding that the odor was
strong. She points out that, during the suppression hearing, Deputy Williams and Deputy
Johnson both testified that they detected an “odor of intoxicants” without specifically
characterizing the strength of that odor. However, Johnson had characterized the odor as “strong”
in the report he filed shortly after the arrest, and when questioned about his report during the
hearing, he did not disagree with his prior assessment of the strength of the odor. The testimony
by both officers is perfectly consistent with Johnson’s later clarification that the odor was strong,
which was consistent with the report he wrote shortly after the fact, and which was credited by
the circuit court. Wedl has not demonstrated that the circuit court’s finding is clearly erroneous.
7
See State v. Hogan, 2015 WI 76, ¶47, 346 Wis. 2d 167, 868 N.W.2d 124 (experience
of officer is a “plus” in reasonable suspicion equation).

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¶42 Wedl argues that, because Johnson did not know when she had
started or stopped drinking wine that night, the “strong odor of intoxicants”
established only that she had been drinking and driving, which, again, was itself
insufficient to create reasonable suspicion. However, even without additional
information, Johnson could still reasonably infer from the strength of the odor that
Wedl had recently consumed a large enough quantity of alcohol that its odor was
still evident on her breath. Although the odor of alcohol, by itself, may not
establish reasonable suspicion that a suspect has committed an OWI, it
nevertheless serves as a significant “building block” for reasonable suspicion. See
State v. Waldner, 206 Wis. 2d 51, 58, 556 N.W.2d 681 (1996).

¶43 Third, Johnson observed that Wedl’s eyes were glassy and
bloodshot, which is a common physical indicator of intoxication. See State v.
Kennedy, 2014 WI 132, ¶22, 359 Wis. 2d 454, 856 N.W.2d 834 (discussing glassy
and bloodshot eyes as a factor sufficient to support a finding of probable cause to
arrest for drunk-driving related offense).8

¶44 Wedl acknowledges that glassy and bloodshot eyes could give rise to
reasonable suspicion under some circumstances, but she argues that any such
inference was not reasonable here because her glassy and bloodshot eyes could
have been caused by crying, exposure to the fire and smoke, or both. Based on the
facts available to Johnson, a reasonable officer would have inferred that the
appearance of Wedl’s eyes had been caused by either intoxication, crying,

8
See also State v. Tullberg, 2014 WI 134, ¶35, 359 Wis. 2d 421, 857 N.W.2d 120
(glassy and bloodshot eyes are an indicator of intoxication); State v. Anker, No. 2020AP1218,
unpublished slip. op. ¶17 (WI App May 13, 2021) (same); County of Sauk v. Leon,
No. 2010AP1593, unpublished slip. op. ¶10 (WI App Nov. 24, 2010) (noting that glassy and
bloodshot eyes constitute a physical sign of impairment).

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No. 2022AP328

exposure to fire and smoke, or any combination of the above, and Johnson was not
required to draw inferences favoring innocence. State v. Nieves, 2007 WI App
189, ¶14, 304 Wis. 2d 182, 738 N.W.2d 125; Hogan, 364 Wis. 2d 167, ¶¶36, 50.
That there were potential innocent explanations lessens, but by no means
eliminates, the probative value of Wedl’s glassy and bloodshot eyes.

¶45 Finally, Wedl points out that her actions at the scene were those of a
“good Samaritan,” and she argues that this fact should detract from a finding of
reasonable suspicion. Specifically, Wedl contends that stopping to render
assistance reflected “clear thinking on her part,” along with “a sense of moral
responsibility befitting a sober individual,” and were “contraindicative of
impairment.” I am not persuaded. I acknowledge that Wedl’s actions were brave,
but I do not agree that bravery is necessarily an indicator of sobriety.

¶46 To be sure, the facts here present a close case, and none of the three
indicators of intoxication discussed above are definitive of guilt. But reasonable
suspicion does not require definitive proof, or even proof that guilt was more
probable than not. I conclude that the facts discussed above, when considered in
the aggregate, see Waldner, 206 Wis. 2d at 58, gave Johnson reasonable suspicion
that Wedl had been operating a motor vehicle with a blood alcohol concentration
of .08 or more, or while under the influence to a degree that rendered her
incapable of safely driving, or both.9 Accordingly, Johnson’s seizure of Wedl for

9
In its reasonable suspicion analysis, the circuit court also relied on the fact that Wedl
was driving at approximately midnight, which the court characterized as “bar time.” I agree with
Wedl that this fact adds little to the reasonable suspicion equation beyond what Deputy Johnson
already knew. Johnson did not have to make any inferences about the likelihood that Wedl had
been drinking based on the time of the day, given that Wedl specifically acknowledged that she
had been drinking.

18
No. 2022AP328

purposes of field sobriety testing was reasonable, and the circuit court properly
denied Wedl’s motion to suppress.

By the Court.—Order affirmed.

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

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