Wobble During One-Leg-Stand Sufficient Probable Cause for PBT

Wisconsin case law summary by Attorney Richard Clem: WI DWI OWI probable cause.

State of Wisconsin v. Ross Timothy Litke. WI DWI OWI probable cause

On July 13, 2012, Officer Jill Zeise of the Brown Deer, WI, Police Department pulled over a car driving without headlights at 11:30 PM. The car was driven by Ross Timothy Litke. Litke acted as though he hadn't realized that the lights were off, and mentioned that it wasn't his car. The person in the passenger seat said that the car belonged to him.

Officer Zeise thought that Litke ws blurring his words slightly, and would not look at her. When he did turn toward her, Zeise noticed that his eyes were bloodshot and glassy. When asked whether he had been drinking, Litke answered that he had a few beers three hours before.

The officer asked Litke to get out of the car, and his speech was still slightly slurred. She did not smell alcohol, but there was a strong smell of vinegar from chicken wings and cigarette smoke. She then administered three field sobriety tests which indicated that Litke was intoxicated. She administered the Horizontal Gaze Nystagmus (HGN) test and the One-Leg-Stand test. During these tests, she observed clues of intoxication. She also conducted the Walk and Turn Test, in which she observed no clues of intoxication.

She then requested that Litke provide a sample for a preliminary breath test (PBT). He blew a .149, and she arrested him.

Before trial in Milwaukee County Circuit Court, Litke moved to suppress the breath test, on the grounds that the officer had no probabe cause to administer it. The trial court agreed. It found that the state did not present sufficient evidence to show the reliability of the HGN test, and without that information, there was insufficient probable cause. Believing that the evidence should come in, the prosecurtion appealed this order to the Wisconsin Court of Appeals. The state made two arguments. First, it argued that the evidence of the HGN test should have come in. It also argued that even without this test, there was sufficient probable cause from the One-Leg-Stand Test. The Court of Appeals agreed with the second argument, and did not reach the issue of whether the HGN test should have been admissible.

In making this ruling, the Court of Appeals focused on several pieces of evidence. First, Litke was driving late on a Friday night without headlights. He didn't look at the officer, and when he did, his eyes were bloodshot and glassy. He had admitted to drinking earlier, and had wobbled and raised his arms during the One-Leg-Stand test. The court held that this gave sufficient probable cause, even without the HGN test.

For these reasons, the Court of Appeals reversed the Circuit Court's order and sent the case back for further proceedings.

No. 2013AP1606-CR (Wis. Ct. App. Mar. 11, 2014).

Please see the original opinion for the court's exact language.


Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).

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