Seen From Behind And To The Left, A Man Seated In The Driver's Seat Of A Car, With The Window Open And A Freshly Lit Cigarette In His Left Hand

April 15, 2024 – A driver’s red eyes, slow speech, and freshly lit cigarette gave a police officer reasonable suspicion to expand a traffic stop to field sobriety tests (FST), the Wisconsin Court of Appeals (District III) has ruled in an unpublished opinion in State v. Johnson, 2022AP389 (April 2, 2024)

On Jan. 19, 2020, Wisconsin State Trooper Steven Wojcik was on patrol in Eau Claire County.

Wojcik got a dispatch about a gray Dodge Ram pickup truck speeding and weaving through traffic on Interstate 94.

Wojcik clocked a gray Dodge pickup truck going 80 miles per hour (mph) in a 70-mph zone. He turned on his squad’s flashers and went after the truck.

The truck, which was driven by Iain Johnson, pulled over after half or three-quarters of a mile. When Wojcik approached the truck, the driver identified himself as “Johnson.”

Wojcik noticed that Johnson’s eyes were glossy and red and that his speech was thick and slightly slow; he also noticed that Johnson had just lit a cigarette.

Wojcik asked Johnson for his driver’s license and didn’t notice any problems with Johnson’s motor skills when he handed over the license.

Fails Field Sobriety Tests

While Wojcik was writing out a speeding ticket, another police officer arrived on the scene.

Jeff M. Brown
Jeff M. Brown , Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
email or by phone at (608) 250-6126.

Wojcik told the other police officer to get Johnson’s insurance information and check Johnson for the odor of intoxicants.

The second police officer came back and said he could smell Johnson’s cigarette but couldn’t smell any alcohol.

Wojcik then asked Johnson to get out of the truck for field sobriety tests (FST). Wojcik also wanted Johnson out of the truck to see if he could smell alcohol on Johnson’s breath outside of the smoke-filled cab of the truck.

When Johnson failed the FST, Wojcik arrested him for operating while intoxicated (OWI).

Motion to Suppress

The Eau Claire District Attorney charged Johnson with one count of OWI (third offense) and one count of possession of THC.

Johnson moved to suppress the evidence. He argued that Wojcik lacked reasonable suspicion to expand the traffic stop to the FST.

The circuit court denied Johnson’s motion, and the jury convicted him. Johnson appealed.

‘A Close Case’

Judge Gregoy Gill decided the appeal under Wis. Stat. section 752.31(2).

Gill began his analysis by acknowledging that deciding whether Wojcik had reasonable suspicion to expand the traffic stop was “a close case.”

However, given the totality of circumstances, Gill concluded that Wojcik had reasonable suspicion to get Johnson out of the truck for the FST.

Judge Gill pointed out that Wojcik testified that Johnson’s eyes were red and glossy, and his speech was thick and slow.

Gill also noted that Wojcik had testified that he’d been trained to look at a person’s eyes and listen to the person’s speech patterns to help determine whether the person was intoxicated.

“Our case law confirms that red and glossy eyes and slow speech are factors that contribute to reasonable suspicion of intoxication,” Judge Gill wrote.

Gill noted that Wojcik testified that based on his training, a person sometimes lights a cigarette so that the smell of the smoke covers up the smell of intoxicants inside a vehicle.

“This court has previously considered a defendant’s ‘seemingly freshly lit cigarette’ as contributing to reasonable suspicion that a defendant was operating while intoxicated, based on an officer’s testimony that it is ‘not uncommon for someone to try to cover the odor of intoxicants with [a] cigarette[ ],” Judge Gill wrote.

The fact that Johnson was speeding also weighed in favor of concluding that Wojcik had reasonable suspicion to expand the traffic stop, Gill reasoned.

“We have previously held that speeding can contribute to a reasonable suspicion that a driver is operating while intoxicated or with a prohibited alcohol concentration,” Judge Gill wrote.

What Wojcik Didn’t Observe

Johnson argued that Wojcik didn’t see him swerving, crossing lane lines, driving too close to other vehicles, or braking unnecessarily.

Johnson also pointed out that Wojcik didn’t notice any of the following:

  • an open container in the truck;

  • the smell of alcohol on his breath; or

  • impaired motor skills.

But Judge Gill explained that it was the totality of circumstances that governed.

“Here, the factors that Wojcik did observe were sufficient to give rise to reasonable suspicion that Johnson had operated his vehicle while intoxicated, even though Wojcik did not observe the additional factors that Johnson raises,” Gill wrote.