State v. Andrew Austin Keenan-Becht, 2022AP73-CR, District 2, 8/3/22 (one-judge decision; ineligible for publication); case activity (including briefs)
Under the long-standing test for probable cause, Keenan-Becht’s arrest was lawful.
¶12 Probable cause existed under the totality of the circumstances here based on Keenan-Becht’s admission to drinking, the odor of alcohol emanating from his body, his red and watery eyes, speeding, the time of day (around bar time), and the observation of four clues on the HGN test…. Further, the officer knew Keenan-Becht had a prior OWI conviction, which is another factor an officer may consider in the probable cause determination. See State v. Lange, 2009 WI 49, ¶33, 317 Wis. 2d 383, 766 N.W.2d 551. The fact that Keenan-Becht did not display additional indicia of driving under the influence [including during other FSTs] does not negate the existing indicia from which a reasonable police officer could conclude that Keenan-Becht probably was driving while under the influence of an intoxicant.
¶13 Keenan-Becht claims there could be an innocent explanation for his red, watery eyes and that a person is permitted to drive after drinking as long as his blood alcohol concentration is under the prohibited limit. This is true, but nevertheless, both of these indicia may be relied upon in forming probable cause. See State v. Tullberg, 2014 WI 134, ¶35, 359 Wis. 2d 421, 857 N.W.2d 120 (“We reaffirm that a law enforcement officer may consider bloodshot and glassy eyes to be one of several indicators of intoxication, even though such eye descriptors may have an innocent explanation.”); Lange, 317 Wis. 2d 383, ¶37 (admission of drinking “strengthens the existence of probable cause”).