County of Winnebago v. Ryan C. Kaltenbach, 2022AP794, District 2, 1/18/23 (one-judge decision; ineligible for publication); case activity (including briefs)

Though this is a “close case” (¶¶4, 11), the facts are sufficient to establish reasonable suspicion to detain Kaltenbach to have him perform field sobriety tests.

Kaltenbach was stopped shortly after midnight because one of his headlights was out. The officer “immediately … smell[ed] a moderate odor of alcohol emanating from [Kaltenbach] as he spoke….” Kaltenbach admitted he had drunk two beers, the last one an hour previously. (¶3). Comparing this case to State v. Glover, No. 2010AP1844-CR, unpub. slip op. (WI App Mar. 24, 2011), the court of appeals finds this thin gruel is just thick enough for the skinny stick of reasonable suspicion to stand up in:

¶9     …. Although “moderate” is not more specifically defined, the odor was strong enough that it led the deputy to believe Kaltenbach “may be impaired.” Further, here, a reasonable deputy would have suspected Kaltenbach may have been lying about the amount and timing of the alcohol he had consumed because the deputy’s “immediate” observation of a “moderate” odor of alcohol coming from Kaltenbach’s breath would tend to indicate moresignificant alcohol consumption than just “two beers” with the last one being consumed approximately an hour before the traffic stop.

¶10     Additionally, … the stop was made late at night. Here, it was made around midnight on a Friday night into Saturday morning, a time of day and day of the week that lends to the suspicion that Kaltenbach may have been drinking intoxicants in an amount greater than one might consume at other times of day or on other days of the week because Saturday is generally a day when most people do not have to go in to work early in the morning. ….