DocketNumber: Appeal No. 2018AP44-CR
Citation Numbers: 927 N.W.2d 158, 2019 WI App 15, 386 Wis. 2d 351
Judges: Hruz
Filed Date: 2/12/2019
Status: Precedential
Modified Date: 10/16/2022
¶1 James Mueller appeals a judgment, entered following a jury trial, convicting him of fourth-offense operating a motor vehicle while under the influence of intoxicants or drugs. Mueller argues the circuit court erred by denying his motion to suppress evidence obtained after a traffic stop, contending the police officer lacked reasonable suspicion to extend the traffic stop and lacked probable cause to arrest Mueller. Mueller also challenges the sufficiency of the evidence upon which the jury found him guilty. We affirm.
BACKGROUND
¶2 Around 4:10 p.m. on the day at issue, officer Ross Austin noticed Mueller stopped in the furthest left lane of traffic, approximately 150 feet from an intersection. The traffic light facing Mueller was green, and there were no vehicles between Mueller and the intersection. Austin passed Mueller's vehicle and turned around. On his second pass, Austin noticed Mueller's vehicle had moved forward approximately 75 feet closer to the intersection and into the right-turn lane, but it was again stationary in the turn lane while having a green light. Austin observed that other vehicles driving toward the intersection had to drive around Mueller's vehicle in order to continue forward. Austin activated his overhead emergency lights and contacted Mueller.
¶3 When Austin approached the vehicle, Austin observed Mueller with his head facing down, writing something onto a piece of paper. Once Mueller realized Austin had approached Mueller's vehicle, he put the paper away and informed Austin that he was stopped in the turn lane because he was waiting for the light to turn green. Austin informed Mueller that the light was currently green and vehicles were passing around him. Mueller thanked Austin and then proceeded to drive forward, although at this point the traffic light had changed to red. Austin ordered Mueller to stop, and Mueller complied.
¶4 After Mueller denied having consumed any alcohol that day, Austin retrieved Mueller's identification in order to run a background check in his squad car. While he ran the background check, Austin requested backup and called a different officer by phone. During that phone call, Austin told the officer that "something feels off." Austin returned to Mueller after having learned that he had prior convictions for operating while intoxicated, and Austin asked Mueller if he had been using any illegal drugs. Mueller denied doing so. Upon Austin's request, Mueller then agreed to perform field sobriety tests.
¶5 Before beginning the tests, but after Mueller had exited his vehicle, Austin asked Mueller if he had taken any prescription medications. Mueller replied that he had taken his prescribed clonazepam, which Austin knew to be a central nervous system depressant.
¶6 Austin placed Mueller under arrest, suspecting Mueller had been operating his vehicle while impaired by his prescription medication. The State subsequently charged Mueller with fourth-offense operating a motor vehicle while under the influence of intoxicants or drugs, contrary to WIS. STAT. §§ 346.63(1)(a) and 346.65(2)(am)4.
¶7 Mueller moved to suppress evidence obtained from the traffic stop, arguing that Austin lacked reasonable suspicion to extend the traffic stop to conduct field sobriety tests, and that Austin lacked probable cause to arrest him. Austin was the only witness to testify at the suppression hearing. Following his testimony, the circuit court denied Mueller's motion. The court then entered a judgment of conviction against Mueller after a jury found him guilty. Mueller now appeals. Additional facts are discussed below.
DISCUSSION
¶8 Mueller raises two issues on appeal: (1) did the circuit court err by denying his suppression motion because Austin violated Mueller's Fourth Amendment right against unreasonable seizures; and (2) did the State present sufficient evidence at his trial for the jury to convict him of operating a motor vehicle while under the influence of prescription drugs. Mueller correctly notes that we would not need to reach the merits of his Fourth Amendment argument if we were to conclude the State presented insufficient evidence at trial. However, because we conclude the State presented sufficient evidence at trial, we address his arguments in the order in which they were presented to the circuit court.
I. The circuit court did not err by denying Mueller's suppression motion.
¶9 Mueller concedes Austin had a reasonable articulable basis to stop his vehicle. However, he argues that Austin lacked reasonable suspicion to justify the stop's extension in order to conduct field sobriety tests. Mueller also asserts that he was arrested without probable cause. The State responds that Austin had reasonable suspicion to conduct field sobriety tests under the totality of the circumstances.
¶10 We apply a two-step standard of review when addressing a challenge to a circuit court's ruling on a motion to suppress evidence based on a Fourth Amendment violation. See State v. Martin ,
¶11 The Fourth Amendment of the United States Constitution and article I, section 11 of the Wisconsin Constitution afford individuals similar protections against unreasonable searches and seizures. See State v. Young ,
A. Austin had reasonable suspicion to ask Mueller to exit the vehicle and then to perform field sobriety tests.
¶12 An investigatory stop requires an officer to have, at a minimum, reasonable suspicion that a wrongful act has been committed, is being committed, or is about to be committed. See
¶13 A traffic stop may last only for the amount of time that is reasonably necessary to complete its purpose. State v. Rose ,
¶14 The State correctly explains that the investigatory stop's purpose changed throughout Austin's interaction with Mueller. It started with a concern over a motorist having a disabled vehicle in traffic. By the time Austin asked Mueller to exit his vehicle, Austin had specific, articulable facts to believe that Mueller was driving impaired. We conclude Mueller's twice allowing his vehicle to remain stopped in a lane of traffic when it was not disabled, his inability to recognize that he had the green light right-of-way multiple times, his decision to take his eyes off the road to write something down while other vehicles had to drive around him, his otherwise appearing distracted, his driving away from an officer during questioning-while the traffic light was then red-together with his history of prior operating while under the influence offenses, are facts that, when taken together, provided Austin with reasonable suspicion that Mueller might be under the influence of some sort of intoxicant or other drug, contrary to WIS. STAT. § 346.36(1)(a), thereby warranting the further "incremental intrusion" into Mueller's liberty to conduct field sobriety tests. See State v. Arias ,
¶15 Mueller's arguments for why Austin lacked reasonable suspicion to extend the traffic stop are without merit. Mueller first argues that Austin impermissibly decided to extend the traffic stop because he had made that decision both before learning about Mueller's prescription drug use and, in part, based on his feeling that "something feels off." However, the timing of when Austin learned about Mueller's prescription drug use is not dispositive because, as just explained, we conclude Austin had already obtained the requisite suspicion to conduct field sobriety tests based on the totality of the other facts and circumstances surrounding the traffic stop.
¶16 Additionally, Mueller asserts that Austin lacked specific, articulable facts to suspect he was incapable of driving safely due to the influence of his prescription drugs. We reject this argument. As an initial matter, Mueller cites no authority-nor are we aware of any-that for Austin to extend his initial, lawful stop to conduct field sobriety tests, he must have had reasonable suspicion of Mueller having committed the particular crime with which he was ultimately charged-i.e., the offense of operating a vehicle under the influence of a prescription drug such that he was rendered "incapable of safely driving." See WIS. STAT. § 346.63(1)(a). All Austin needed was reasonable suspicion that Mueller was committing some type of wrongful activity, which, here, could include driving under the influence of alcohol or illegal drugs.
¶17 Furthermore, Mueller fails to analyze the situation under the totality of the circumstances. Instead, he focuses on facts or circumstances that were absent, such as Austin not observing Mueller driving recklessly, slurring his speech, or appearing confused. We assess whether reasonable suspicion exists based upon the accumulation of facts that actually occurred. See Post ,
B. Austin had probable cause to arrest Mueller.
¶18 An arrest is a more permanent detention than an investigatory stop and is not constitutionally justified unless an officer has probable cause. Young ,
¶19 We agree with the State that Austin had probable cause to arrest Mueller based on the totality of the circumstances. Mueller's behavior prior to the field sobriety tests, the indicators of his impairment during the field sobriety tests, and his admission to using a prescription drug known to affect one's physical abilities gave Austin probable cause to believe Mueller had been operating his vehicle under the influence. Moreover, we disagree with Mueller's assertions that he did not exhibit "any unsafe driving conduct" and "was not driving dangerously." These statements ignore the fact that Mueller twice stopped his motor vehicle in the middle of traffic while having the right-of-way, and incorrectly presume that conduct did not constitute a dangerous act while "driving."
¶20 Mueller argues Austin lacked probable cause in two separate ways. First, he contends Austin's observations from the field sobriety tests "were of limited probative value" for drug impairment because the tests were designed to detect impairment from alcohol. For authority, Mueller cites City of West Bend v. Wilkens ,
¶21 Second, Mueller argues that Austin lacked knowledge that Mueller was impaired to the extent that he was "incapable of safely driving," referring to the State's burden of proof for when an individual is charged with operating under the influence of a drug other than a controlled substance under WIS. STAT. § 346.63(1)(a). Yet, Mueller's argument is belied by the facts. The totality of the circumstances-specifically, Mueller causing other vehicles to drive around him on an active roadway because of his inability to recognize a green light, and his performance on the field sobriety tests-reasonably permitted Austin to believe that Mueller was incapable of driving safely, because of his prescription drug use, under the standards for probable cause necessary for an arrest.
II. Sufficient evidence was presented at trial to support the jury's verdict.
¶22 Mueller argues the State presented insufficient evidence at his trial for the jury to find him guilty of unlawfully operating a motor vehicle under the influence of prescription drugs. He asserts two reasons for why the State failed to meet its evidentiary burden of showing that the drugs influenced him to a degree that rendered him incapable of driving safely. First, he again contends his performance on the field sobriety tests is of limited probative value. Second, he asserts that his conduct at the traffic stop "did not comport with the evidence the [S]tate presented regarding the general side effects" of the prescription drugs in his system. While we agree with Mueller that the standard of impairment is higher in cases involving the use of prescription drugs than in those involving alcohol, we disagree that the jury in this case could not reasonably infer that Mueller was so impaired.
¶23 In reviewing claims attacking the sufficiency of the evidence to support a jury conviction, we may not substitute our own judgment for that of the jury "unless the evidence, viewed most favorably to the [S]tate and the conviction, is so lacking in probative value and force that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt." State v. Poellinger ,
¶24 It is the function of the jury "to fairly resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Poellinger ,
A. Evidence relating to field sobriety tests
¶25 Mueller first argues that Austin's observations of Mueller's performance on the field sobriety tests "would not lead a jury to find him guilty beyond a reasonable doubt" because Austin did not observe impairment clues specifically designed to detect drug use. Mueller makes a number of arguments attacking the evidentiary value of field sobriety tests when they are used to assess impairment due to prescription drug use. For example, Mueller again asserts that, based on Wilkens , field sobriety test impairment clues are observational tools to assess alcohol impairment, and thus Austin's observations of Mueller "are of less evidentiary value without additional observed drug-specific clues to support a conclusion of impairment." Mueller also cites to Austin's testimony that a different officer at the scene, who, unlike Austin, was a "drug recognition expert," could have conducted additional tests that are specifically designed to detect drug impairment. However, all of Mueller's arguments relating to the field sobriety tests lack merit because they largely ignore our standard of review.
¶26 Mueller's arguments-while perhaps bases for a closing argument at trial-would require us, on this appeal, to reject reasonable inferences the jury made, which we cannot do.
B. Mueller's conduct on the scene
¶27 Mueller next argues the State failed to prove impairment because his behavior during the traffic stop was inconsistent with the general side effects of the prescription drugs found in his system. The State called Michael Knutsen, a senior chemist at the Wisconsin State Laboratory of Hygiene, to testify as to the results of Mueller's blood test and the side effects of prescription drugs on the general population. Knutsen stated that Mueller's blood contained both clonazepam and zolpidem at sixteen nanograms per milliliter each. These levels were below the therapeutic range for each drug, respectively.
¶28 However, Knutsen explained that combining the two drugs could increase their impairing effect, and he further opined that the drug levels found in Mueller's system could have caused the behavior he exhibited during the traffic stop and the field sobriety tests. Knutsen also testified that the side effects for clonazepam are similar to alcohol, in that an individual could experience impaired vision, difficulty scanning and tracking the road, impaired muscle coordination, and confusion. He further stated that zolpidem's side effects similarly could include dizziness, confusion, and decreased concentration. Knutsen conceded, however, that it was possible for some individuals not to be impaired if they had the same drug levels in their blood as Mueller did.
¶29 Mueller's arguments regarding the foregoing evidence again ignore our standard of review. Mueller asks us to reweigh the evidence adduced at trial and reject reasonable inferences the jury made from it. It is true that the jury heard testimony and argument suggesting that Mueller's poor performance on the field sobriety tests was not attributable to prescription drug use. Likewise, the jury also heard how age, gender and tolerance impact the way clonazepam and zolpidem affect an individual. However, the jury was within its province to reject those facts or give them little weight. See Poellinger ,
¶30 In all, Mueller has not shown that the evidence introduced at trial was so lacking in probative value and force that the jury, acting reasonably, could not have found guilt beyond a reasonable doubt when the evidence is viewed most favorably to the State and his conviction. See
By the Court. -Judgment affirmed.
This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)4.
This appeal is decided by one judge pursuant to
Mueller also had zolpidem, a central nervous system depressant used as a sedative for sleeping, in his system at that time. However, Austin was unaware of that fact during his contact with Mueller. The State learned that Mueller had zolpidem in his system at the time of the traffic stop only after Mueller's blood had been taken and analyzed following his arrest.
The State refers to Mueller as the "Appellant" throughout its response brief. We remind the State that reference should be made to a party's name, rather than by party designation, throughout a brief's argument section. See Wis. Stat. Rule 809.19(3)(a)2.
We do note, however, that once Austin learned of Mueller's prescription drug use, that knowledge certainly added to his reasonable suspicion to conduct the field sobriety tests.
Mueller misstates our standard of review on this issue in numerous instances. For example, Mueller claims that the State did not meet its evidentiary burden because his performance on the field sobriety tests did not "eliminate all reasonable hypotheses of innocence to lead a jury to find him guilty beyond a reasonable doubt." The hypothesis of innocence standard applies to a circuit court or a jury when they are tasked with finding facts. State v. Poellinger ,
The therapeutic range is the amount expected to be in an individual's body if taken as prescribed.