State v. Lauren Dannielle Peterson

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.
December 29, 2023
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2023AP890-CR Cir. Ct. No. 2022CT150

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-APPELLANT,

V.

LAUREN DANNIELLE PETERSON,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Sauk County:
PATRICIA A. BARRETT, Judge. Reversed.

¶1 GRAHAM, J.1 The State appeals a circuit court order granting
Lauren Peterson’s motion to suppress evidence obtained as a result of a traffic

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(c) (2021-22).
All references to the Wisconsin Statutes are to the 2021-22 version.
No. 2023AP890-CR

stop. I conclude that the arresting officer had reasonable suspicion to commence
an OWI investigation, and further, that he had probable cause to ask Peterson to
take a preliminary breath test under WIS. STAT. § 343.303. I therefore reverse the
suppression order.

BACKGROUND

¶2 Peterson was driving at approximately 9:00 p.m. when a law
enforcement officer initiated a traffic stop of her vehicle and ultimately arrested
her for operating a motor vehicle while intoxicated (OWI)2 with a minor child in
the vehicle. The following summary of facts is derived from the officer’s
undisputed testimony, which the circuit court appears to have credited, at the
hearing on Peterson’s motion to suppress.3

¶3 The officer testified that he pulled the vehicle over based on an
inoperative taillight.4 The officer observed Peterson and two passengers, an adult
and a child, in the vehicle. When Peterson rolled down her window, the officer
“noticed an odor of intoxicants emitting from the vehicle” and that Peterson’s eyes
“were glossy [sic] and bloodshot.” When asked, Peterson indicated that she was
coming from a relative’s house where she had been watching the Bucks game.

2
The Wisconsin Jury Instructions use “OWI” as an umbrella term, which encompasses
operating while under the influence of an intoxicant, contrary to WIS. STAT. § 346.63(1)(a), and
operating with a prohibited alcohol concentration, contrary to § 346.63(1)(b). I follow the same
convention in this opinion.
3
The officer testified that his squad vehicle was not equipped with a dashboard camera,
and he was not wearing a body camera.
4
Peterson does not challenge the lawfulness of the initial stop.

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No. 2023AP890-CR

¶4 The officer asked Peterson if she had been drinking that evening.
Peterson responded that she drank two White Claws during the game and had
finished the second drink approximately 20 minutes before she was stopped.

¶5 The officer returned to his squad car to run a record check on
Peterson’s name. Dispatch informed the officer that Peterson’s license was valid
and that she had one prior OWI conviction.

¶6 At that point, the officer returned to the vehicle and asked Peterson
to exit the vehicle. Once she was outside, the officer detected the odor of
intoxicants on Peterson’s person.

¶7 The officer asked Peterson to perform three standardized field
sobriety tests: the Horizontal Gaze Nystagmus (HGN) test, the walk-and-turn test,
and the one-leg stand test. According to the officer, he has been trained to look for
six clues of impairment in the HGN test, and Peterson exhibited all six. Peterson
performed somewhat better on the walk-and-turn test, exhibiting one of eight clues
of impairment. Finally, Peterson exhibited zero of four clues of impairment on the
one-leg-stand test. On cross-examination, the officer agreed with Peterson’s
attorney that there are three different standardized tests “for a reason,” that he is
trained to “consider [the three tests] in their totality,” and that “no one of the
standardized … tests is determinative of the decision whether to ask for a PBT or
continue on with the OWI investigation.”

¶8 Upon completion of the field sobriety tests, the officer asked
Peterson to take a preliminary breath test (sometimes referred to as a “PBT”).
Peterson complied, and the result showed a blood alcohol level of .103. The
officer arrested Peterson.

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No. 2023AP890-CR

¶9 Peterson moved to suppress the evidence obtained as a result of the
traffic stop. In her motion, Peterson argued that the officer lacked reasonable
suspicion to commence an OWI investigation, and that he also lacked probable
cause to ask Peterson to take a preliminary breath test. Following the hearing, the
circuit court determined that the officer had reasonable suspicion to commence the
OWI investigation. However, the court concluded that, following the field
sobriety testing, the officer did not have probable cause to ask Peterson to take the
preliminary breath test. Therefore, the court suppressed the evidence.

DISCUSSION

¶10 In its opening appellate brief,5 the State challenges the circuit court’s
conclusion that the officer lacked probable cause to ask Peterson to take a
preliminary breath test. In her response, Peterson argues that the court was right to
suppress the evidence based on lack of probable cause to administer a preliminary
breath test, and she also argues that the officer lacked reasonable suspicion to
commence an OWI investigation, which provides an additional ground for
suppression. I address these challenges to the constitutionality of the stop in
chronological order, beginning with the officer’s decision to commence an OWI
investigation.

5
The State’s brief does not comply with WIS. STAT. RULE 809.19(8)(bm), which
addresses the pagination of appellate briefs. See RULE 809.19(8)(bm) (providing that, when
paginating briefs, parties should use “Arabic numerals with sequential numbers starting at ‘1’ on
the cover”). This rule has recently been amended, see S. Ct. Order 20-07 (eff. July 1, 2021), and
the reason for the amendment is that briefs are now electronically filed in PDF format, and are
electronically stamped with page numbers when they are accepted for e-filing. As our supreme
court explained when it amended the rule, the new pagination requirements ensure that the
numbers on each page of a brief “will match … the page header applied by the eFiling system,
avoiding the confusion of having two different page numbers” on every page of a brief.

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No. 2023AP890-CR

I.

¶11 The officer originally pulled over Peterson’s vehicle based on
reasonable suspicion of an equipment violation. To constitutionally extend the
mission of the stop to include an OWI investigation, the officer needed reasonable
suspicion to believe that Peterson was violating or had violated one of Wisconsin’s
OWI laws. Rodriguez v. United States, 575 U.S. 348, 355 (2015); County of
Jefferson v. Renz, 231 Wis. 2d 293, 310, 603 N.W.2d 541 (1999).

¶12 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 prohibited alcohol concentration—which, as relevant
here, was .08 or more6—or from driving “under the influence of an intoxicant” as
that phrase has been defined by Wisconsin cases.7

¶13 The parties dispute the moment the OWI investigation commenced.
Peterson argues that the officer commenced the OWI investigation when he asked
Peterson whether she had been drinking. She argues that the officer’s question
constituted an extension of the mission of the stop within the meaning of
Rodriguez, 575 U.S. at 355, and that the officer needed to reasonably suspect that
she had violated one of Wisconsin’s OWI laws before he could ask her that
question. The State, by contrast, argues that the officer’s question about drinking

6
WIS. STAT. § 346.63(1)(b); WIS. STAT. § 340.01(46m).
7
WIS. STAT. § 346.63(1)(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 handle and control a motor vehicle”).

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No. 2023AP890-CR

was “negligibly burdensome” and therefore not “an extension of the stop.”
According to the State, the officer did not commence an OWI investigation until
he asked Peterson to perform field sobriety testing.

¶14 I need not resolve this dispute between the parties because it is not
dispositive. For reasons I now explain, even if I assume that the officer’s question
about drinking constituted an extension of the mission of the stop within the
meaning of Rodriguez, I nonetheless conclude that the officer had reasonable
suspicion to ask the question.

¶15 Reasonable suspicion is an objective test that examines the totality
of circumstances. State v. Post, 2007 WI 60, ¶¶13-14, 301 Wis. 2d 1, 733 N.W.2d
634. The test is grounded in common sense—what would a reasonable police
officer reasonably suspect, in light of the officer’s training and experience, based
on the totality of facts and circumstances and the reasonable inferences to be
drawn therefrom. Id., ¶13. In the context of an OWI investigation, the officer
must be able to point to “specific and articulable facts” and “rational inferences
from those facts” to reasonably suspect that the person has violated an OWI-
related law. State v. Richardson, 156 Wis. 2d 128, 139, 456 N.W.2d 830 (1990)
(citation omitted). Reasonable suspicion is not a high bar, State v. Genous, 2021
WI 50, ¶8, 397 Wis. 2d 293, 961 N.W.2d 41; “the level of suspicion the 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 (citation omitted).

¶16 Here, prior to asking Peterson whether she had been drinking, the
officer knew that Peterson had just come from a family gathering, he smelled the
odor of intoxicants coming from inside the vehicle, and he observed Peterson’s

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No. 2023AP890-CR

“glossy” and bloodshot eyes. I conclude that these facts collectively gave rise to
reasonable suspicion of an OWI violation, which allowed the officer to commence
an OWI investigation. See Renz, 231 Wis. 2d at 316-17 (the odor of intoxicants
can be an indicator of intoxication); State v. Waldner, 206 Wis. 2d 51, 58, 556
N.W.2d 681 (1996) (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); State v. Kennedy, 2014
WI 132, ¶¶21-22, 359 Wis. 2d 454, 856 N.W.2d 834 (discussing glassy and
bloodshot eyes as a physical indicator of intoxication); State v. Tullberg, 2014 WI
134, ¶35, 359 Wis. 2d 421, 857 N.W.2d 120 (glassy and bloodshot eyes may be an
indicator of intoxication).

¶17 Peterson’s argument to the contrary is not persuasive. She points to
the fact that, prior to asking her the question, the officer had been unable to
discern whether the odor of intoxicants was coming from Peterson or some other
source in the vehicle. Even though the officer was unable to pinpoint the source of
the odor, the appearance of Peterson’s eyes provided an additional building block
that pointed to Peterson as a potential source of the odor, and in turn indicated that
she may have been intoxicated. As mentioned, reasonable suspicion is not a high
bar, Genous, 397 Wis. 2d 293, ¶8, and here, the reasonable suspicion analysis is
not a close call.

II.

¶18 I now turn to whether the officer had probable cause to ask Peterson
to take a preliminary breath test. The pertinent law is found in WIS. STAT.
§ 343.303 and Wisconsin cases interpreting that statute.

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No. 2023AP890-CR

¶19 WISCONSIN STAT. § 343.303 provides that, “[i]f a law enforcement
officer has probable cause to believe that [a] person is violating or has violated”
one of Wisconsin’s OWI-related laws, “the officer, prior to any arrest, may request
the person to provide a sample of his or her breath for a preliminary breath
screening test” using an approved device. Section 343.303 further provides that
“[t]he result of this preliminary breath screening test may be used by the … officer
for the purpose of deciding whether or not the person shall be arrested” for an
OWI-related offense.

¶20 Wisconsin cases recognize that the probable cause needed to ask a
person to take a preliminary breath test based on suspicion of an OWI-related
offense is not the same as the probable cause needed to arrest a person for that
offense. More specifically, the “quantum of proof” needed to ask a person to take
a preliminary breath test is “greater than the [reasonable suspicion] necessary to
justify an investigatory stop [for OWI], … but less than the level of proof required
to establish probable cause for arrest.” Renz, 231 Wis. 2d at 317 (analyzing WIS.
STAT. § 343.303).

¶21 Peterson contends that bloodshot and glassy eyes, alone, do not
provide probable cause for a preliminary breath test. Here, however, the officer
had observed more than just bloodshot and glassy eyes. He also detected the odor
of intoxicants, which at this point he had pinpointed to Peterson’s person, and
Peterson told him that she had consumed two alcoholic beverages during the
game. Id. at 316 (suspect’s admission to drinking three beers earlier in the
evening was one fact that contributed to probable cause). Despite some prevailing
views in this state, two drinks is not an insignificant amount of alcohol and,
according to charts published by the state department of transportation, that
amount might be enough to push some individuals over the legal limit, depending

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No. 2023AP890-CR

on the person’s gender, their weight, whether the person consumed food in
addition to drinking alcohol, and how recently the person consumed those drinks.8

¶22 In addition to the appearance of Peterson’s eyes, her admission to
drinking, and the odor of alcohol, we have Peterson’s performance on the field
sobriety tests. As discussed, Peterson exhibited six of six clues of impairment on
the HGN test, one of eight clues on the walk-and-turn test, and zero of four clues
on the one-leg-stand test. Peterson contends that her performance should have
“dissipated what suspicion the officer could reasonably have,” but I disagree.
Peterson’s performance on the field sobriety tests is at best characterized as
ambiguous—it was not a total failure, but she also did not pass with flying colors.
The results were not so one-sided that an officer would have no choice but to
terminate the investigation and allow Peterson to drive away. See id. at 310-11
(acknowledging that a driver’s performance on field sobriety tests “may not
produce enough evidence to establish probable cause for arrest,” and that “[t]he
legislature has authorized the use of the PBT to assist an officer in such
circumstances”).

¶23 Finally, Peterson points to the fact that the officer did not report
other common indicators of intoxication, such as slurred speech and loss of
balance. Yet, a driver need not be stumbling drunk to violate Wisconsin’s OWI
laws. I conclude that, like the officer in Renz, the officer in this case “was faced
with exactly the sort of situation in which a PBT proves extremely useful in
determining whether there is probable cause for an OWI arrest.” Id. at 317.

8
See Wis. Dep’t of Transportation, 0.08 BAC Law in Wisconsin, available at
https://wisconsindot.gov/Documents/safety/education/drunk-drv/08law.pdf.

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No. 2023AP890-CR

¶24 Accordingly, I conclude that the officer had probable cause to ask
Peterson to take a preliminary breath test, and that the circuit court erred when it
granted her motion to suppress.

By the Court.—Order reversed.

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

10