New DWI Case-Field Sobriety Tests

COURT OF APPEALS

DECISION

DATED AND FILED

January 12, 2005

Cornelia G. Clark

Clerk of Court of Appeals

This opinion is subject to further editing. If

published, the official version will appear in

the bound volume of the Official Reports.

A party may file with the Supreme Court a

petition to review an adverse decision by the

Court of Appeals. See WIS. STAT. § 808.10

and RULE 809.62.

Appeal No. 04-1871 Cir. Ct. No. 04CV000063

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT II

CITY OF WEST BEND,

PLAINTIFF-RESPONDENT,

V.

RICHARD B. WILKENS,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for

Washington County: ANNETTE K. ZIEGLER, Judge. Affirmed.

Before Brown, Nettesheim and Snyder, JJ.

¶1 BROWN, J. This case involves a question of admissibility versus

weight of the evidence. Richard B. Wilkens, convicted of operating a vehicle with

a prohibited alcohol concentration, complains that the field sobriety tests (FSTs)

the arresting officer administered were unreliable because they failed to conform

to the standardized procedures approved by the United States Department of

Transportation’s National Highway Traffic Safety Association. The trial court

determined that the reliability of the tests was for the jury to decide. We agree

that the procedures the officer employed go to the sufficiency of the evidence, not

its admissibility. We reject Wilkens’ attempt to cast this case as one involving the

use of scientific evidence, the reliability of which this court must determine before

the fact finder may consider it. FSTs are not scientific tests. They are merely

observational tools that law enforcement officers commonly use to assist them in

discerning various indicia of intoxication, the perception of which is necessarily

subjective. Moreover, it is not beyond the ken of the average person to understand

such indicia and to form an opinion about whether an indi vidual is intoxicated.

The evidence was not without probative value and therefore was admissible.

¶2 The material facts in this case are not contested. They are as

follows: Kenneth G. Onken, a city of West Bend police officer, worked the

midnight shift on November 4, 2002. While operating his radar detector on Creek

Road at approximately 2:00 a.m., he observed a motorcycle traveling fifty miles

per hour. This speed exceeded the legal speed limit by twenty miles per hour, so

Onken stopped the vehicle. When he approached the driver of the motorcycle,

Wilkens, Onken noticed several signs of intoxication: red, glassy eyes, the odor of

alcohol, Wilkens’ admission that he had consumed a few beers at a local tavern,

and slurred speech.

¶3 Because of these indicia of intoxication, Onken asked Wilkens to

perform FSTs. He administered the three tests outlined in the West Bend police

department’s FST policy: (1) the alphabet test, (2) the finger-to-nose test, and (3)

the heel-to-toe walk, in that order. Wilkens failed all three.

¶4 Based on Wilkens’ performance on the FSTs, Onken requested a

preliminary breath test. The sample indicated a blood alcohol concentration of .13

percent. Onken arrested Wilkens for operating a motor vehicle while under the

influence of an intoxicant and transported him to St. Joseph’s Hospital for a blood

draw. The results of this test revealed a blood alcohol concentration of .19

percent.

¶5 Two citations resulted from this encounter, each for a separate

violation of a municipal ordinance that adopts WIS. STAT. § 346.63 (2003-04),1

“Operating under influence of intoxicant or other drug.” One violation was for

operating his vehicle while under the influence of an intoxicant to the extent that

he was incapable of safe driving. See § 346.63(1)(a). The other cited him for

operating with a PAC. See § 346.63(1)(b).

¶6 Proceedings for this case began in the Mid-Moraine Municipal

Court. Wilkens moved to suppress from use at trial all of the following evidence:

(1) testimony by Onken relating to his administration of the FSTs and his

interpretation of Wilkens’ performance; (2) the PBT results; (3) all of Wilkens’

postarrest statements and Onken’s observations of Wilkens; and (4) the blood

draw results. Wilkens argued as follows: the court could not consider Onken’s

administration of the three FSTs or Wilkens’ performance of them because they

were not scientifically reliable. The three-test battery approved by NHTSA-the

horizontal gaze nystagmus (HGN), walk and turn (WAT), and one-leg stand

(OLS)-“is the only scientifically validated and reliable method for discriminating

1 All references to the Wisconsin Statutes are to the 2003-04 version unless indicated otherwise.

between impaired and unimpaired drivers.”2 NHTSA specifically rejected the use

of the finger-to-nose test and tests similar to the alphabet test as unreliable.

Moreover, Onken’s administration of the heel-to-toe test did not follow the

NHTSA protocol for the administration of WAT, which requires standardized

administration and grading of various clues in order to reliably distinguish passing

and failed performance. By contrast, Onken relied upon his own subjective

assessment of Wilkens’ performance.

¶7 Wilkens’ argument continued: without the FSTs, Onken had no

probable cause to request a PBT. Without the FST and PBT, Onken also had no

probable cause for the arrest. Onken’s pre-FST observations did not rise to the

requisite level of suspicion to satisfy the probable cause standard for either the

PBT or the arrest. Thus, the court should also suppress the fruits of both.

¶8 The record contains no ruling on the suppression motion, but it is

clear that the case proceeded to trial on December 18, 2003. The trial resulted in

findings of guilt on both charges, and the court entered final judgment on January

9, 2004. Wilkens appealed to the Washington County Circuit Court.

¶9 Wilkens renewed his attempt to suppress all evidence Onken

obtained subsequent to his administration of the FSTs. The trial court held a

hearing on this suppression motion on May 14. Onken testified for the City, and

Jeffrey Barber, a former law enforcement officer certified in FSTs, testified on

behalf of Wilkens. Barber was familiar with several NHTSA studies with respect

to the reliability of various FSTs.

2 Wilkens quotes NHTSA’s FST instructor manual.

¶10 At the conclusion of this hearing, the court denied Wilkens’ motion.

The court declined to mandate any particular combination or method of

administering FSTs, opining that common sense plays a role in an officer’s

observations. It further opined that it is a jury question whether a person met the

requisite level of impairment or whether alternative explanations were more

persuasive. The parties could inform the jury’s decision by questioning the

officer’s methods and presenting testimony about their reliability. The court found

that probable cause existed, based on Wilkens’ slurred speech, red and glassy

eyes, the odor of intoxicants, and his admission to having been drinking, combined

with his performance on the FSTs. With respect to the latter, the court paid

special attention to Wilkens’ balance problems and the fact that he not only recited

the alphabet incorrectly but failed even to realize his mistake.

¶11 On May 18, the parties tried the case on stipulated facts. Citing

Wilkens’ performance on the FSTs, his speeding, and his high alcohol level as

revealed by the blood test, the trial court found Wilkens guilty on both tickets but

dismissed the violation based on WIS. STAT. § 346.63(1)(a), driving under the

influence of an intoxicant. Wilkens now appeals the order denying his

suppression motion and the judgment of conviction on the § 346.63(1)(b) PAC

violation.

¶12 The main thrust of Wilkens’ appeal focuses on the purported

unreliability of the FSTs. On the surface, he appears to raise a probable cause

issue, i.e., this court should suppress the PBT results and all postarrest evidence

because both the administration of the PBT and the arrest lacked probable cause.

However, the sole basis for his claim that probable cause was lacking is his

assertion that “Onken’s FSTs were unreliable and his observations of and

conclusions he drew from Wilkens’ performance on the tests should be excluded

from the probable cause analysis.” Ultimately, he challenges the fact that the trial

court even considered the FST evidence. Thus, his argument hinges upon whether

the trial court erred in admitting the evidence.

¶13 The admissibility of evidence is within the trial court’s discretion.

State v. Peters, 192 Wis. 2d 674, 685, 534 N.W.2d 867 (Ct. App. 1995). We will

not overturn its decision absent an erroneous exercise of such discretion. Id. The

trial court is within its discretion so long as it examined the relevant facts, applied

a proper legal standard, and reached a conclusion that a reasonable judge could

reach through a demonstrated rational process. Id.

¶14 In Wisconsin, the general standard for admissibility is very low.

Generally, evidence need only be relevant to be admissible. See WIS. STAT.

§ 904.02; State v. Eugenio, 219 Wis. 2d 391, 411, 579 N.W.2d 642 (1998) (“All

relevant evidence is admissible unless otherwise provided by law.”). Evidence is

relevant when it is probative of any material fact. WIS. STAT. § 904.01 (Evidence

is relevant if it has “any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable

than it would be without the evidence.”). Even Wilkens does not argue that

Onken’s observations of his performance on the FSTs utterly lacked probative

value. Certainly, when an officer-particularly one with sixteen years of law

enforcement experience and who makes an average of four OWI arrests each

month-determines that a driver fails not one but three FSTs, it is more probable

that the person has an illegal blood alcohol concentration than if the officer

determined he or she passed the tests. We cannot conclude that the trial court

erred in considering the evidence.

¶15 Wilkens believes that the general rules for admissibility do not apply

in this case. He attempts to characterize FSTs as scientific tests. He states:

“These [FSTs] are tests, not lay observations as the City contends. When you test

someone, it implies some scientific or measurable basis for determining

something.” Given his focus on the reliability of these tests, we understand him to

argue that scientific evidence must be reliable before a court may admit and

consider the evidence.

¶16 Although it is true that the rules of evidence sometimes require the

exclusion of otherwise relevant and admissible evidence for policy reasons

unrelated to probativeness, see State v. St. George, 2002 WI 50, ¶82, 252 Wis. 2d

499, 643 N.W.2d 777 (Sykes, J., concurring) (citing hearsay, character evidence,

and evidence protected by privilege as examples), we reject Wilkens’ argument on

two grounds. First, FSTs are not “scientific tests.” Second, even if they were,

reliability is not a prerequisite to admitting scientific evidence in this state.

¶17 We turn first to the allegedly “scientific” nature of FST observations.

Despite Wilkens’ assertions to the contrary, the FSTs that Onke n administered are

not “scientific.” Indeed, the fact that Onken relied on his own subjective

judgment-one of Wilkens’ major complaints in citing why the tests were

flawed-in deciding whether Wilkens passed or failed indicates that there was no

“science” whatsoever in forming his conclusions. Onken testified that his purpose

in administering FSTs is to determine whether a suspect can follow directions and

whether the person can divide his or her attention and exhibit fine motor skills.

One can perceive any of these abilities and conclude that their impairment is an

indicator of intoxication without employing a scientific test. FSTs simply give an

officer an opportunity to look for such indicia. They are observational tools, not

litmus tests that scientifically correlate certain types or numbers of “clues” to

various blood alcohol concentrations.

¶18 Further, we remain unconvinced by the proposition that following

the standardized procedures that NHTSA recommends leads to scientifically valid

determinations.3 Barber gave the following testimony: (1) NHTSA has

recommended only HGN, WAT, and OLS as “reliable indicators” of either

impairment or intoxication; (2) a correlation exists between arrest decisions based

on those three tests and whether the test subject actually has a blood alcohol level

in excess of the legal limit; (3) when an officer deviates from the standardized

procedures, NHTSA considers the result “invalid”; and (5) the standardized

procedures require an officer to look for specific “clues” in assessing satisfactory

performance versus failure.

¶19 Other than the bare assertion that the recommended standardized

tests are both scientifically reliable and valid, the record contains no indication

that they are based on science. Any scientific explanation for why the

standardized procedures yield any particular result is completely absent.

Standardization may lead to reliability in the sense that where examiners look for

the same “clues” to shape their observations of the subject, their observations are

likely to be more similar. Similarity does not equate to more correct observations,

however. “The mere fact that the NHTSA studies attempted to quantify the

reliability of the field sobriety tests in predicting unlawful [blood alcohol contents]

3 The HGN test attempts to correlate eye movement with the person’s level of

intoxication. Jerkiness in eye movements is not a commonly known indicator of intoxication.

Moreover, it was not among the tests Onken administered. Thus, our discussion here should not

be read to pass on whether that test has a scientific basis.

does not convert all of the observations of a person’s performance into scientific

evidence.” State v. Meador, 674 So. 2d 826, 831-32 (Fla. Dist. Ct. App. 1996).

The evidence before us simply does not allow us to conclude that following the

NHTSA protocol yields scientifically correct results. For this reason, we will not

treat Onken’s observations with respect to Wilkens’ performance of the FSTs any

differently from his other subjective observations of Wilkens, i.e., his red and

glassy eyes, slurred speech, his speeding, and the smell of alcohol on his person.

¶20 We note that other courts and commentators have remained similarly

unconvinced. The Meador court stated that, with the exception of observations

with respect to the HGN test, a police officer’s observations of FST performance

should be “placed in the same category as other commonly understood signs of

impairment, such as glassy or bloodshot eyes, slurred speech, staggering, flushed

face, labile emotions, odor of alcohol or driving patterns.” Id. at 832. The court

in United States v. Horn, 185 F. Supp. 2d 530 (D. Md. 2002), also faced the issue

of whether observations resulting from the administration of FSTs were admissible

evidence. In that case, the court wrote:

There is no factual basis before me to support the

NHTSA claims of accuracy for the WAT and OLS

tests or to support the conclusions about the total

number of standardized clues that should be looked for

or that missing a stated number means the subject

failed the test. There is very little before me that

suggests that the WAT and OLS tests are anything

more than standardized procedures police officers use

to enable them to observe a suspect’s coordination,

balance, concentration, speech, ability to follow

instructions, mood and general physical condition-all

all of which are visual cues that laypersons, using

ordinary experience, associate with reaching opinions

about whether someone has been drinking.

Id. at 558. Moreover, as one commentator points out, the WAT and OLS tests

have only “face validity”; this level of validity is the lowest possible, and

generally academia does not accept it because it “rests on the investigator’s

subjective evaluation of the appropriateness of the instrument for measuring the

concept rather than whether the instrument measures what the researcher wishes to

measure.” Mimi Coffey, DWI: Modern Day Salem Witch Hunts, THE CHAMPION,

Nov. 2004, at 51, 52 (emphasis added) (citation omitted).

¶21 Finally, even if science “validates” observations that police officers

make when administering FSTs, that would not mean the observations themselves

are based on scientific phenomena rather than plain common sense. Normally,

scientific evidence involves highly technical or specialized information beyond the

ken of the average person’s general knowledge. Courts admit expert testimony in

order to help the finder of fact understand and apply this information. Ordinary

individuals are readily familiar with the manifestations of alcohol consumption,

both physical and mental. They do not need to hear expert testimony about how to

discern drunkenness. Moreover, they know intuitively that a PAC and

drunkenness often accompany each other. They do not need “scientific evidence”

to tell them so any more than they require an explanation of the theory of gravity

in a suit where a plaintiff claims to have been injured by a fallen object.

¶22 Even if we were to conclude that Onken’s observations during the

FSTs were scientific evidence, the alleged unreliability of these tests would not

necessarily render the evidence inadmissible. Wilkens’ contrary assumption

appears to presuppose an admissibility standard similar to that which the federal

courts employ. This standard, which the United States Supreme Court announced

in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), assigns

federal judges a significant gatekeeping role over scientific evidence. “[U]nder

the [Federal Rules of Evidence] the trial judge must ensure that any and all

scientific testimony or evidence admitted is not only relevant, but reliable.” Id. at

589 (emphasis added). However, Wisconsin is not a Daubert state. See Peters,

192 Wis. 2d at 687.

¶23 Wisconsin, unlike the federal courts, considers the reliability of

scientific evidence a question of weight and credibility for the trier of fact to

decide. Id. at 690. A party can challenge the reliability of such evidence through

cross-examination or other means of impeachment. Id. The evidence is

admissible as long as it is relevant, the witness testifying to such evidence is a

qualified expert, and the evidence will assist the fact finder in understanding the

evidence or determining some factual issue. Id. at 687-88. Wilkens has not

challenged the trial court’s consideration of the FST evidence on any of these

grounds.

¶24 We hold that nothing precluded the trial court from considering

Onken’s testimony about what he observed when he administered the FSTs to

Wilkens. The reliability of this evidence was totally irrelevant for purposes of its

admissibility. We are unconvinced that this evidence was scientific rather than a

commonsense observation made possible by means of observational tools-the

FSTs. Because the evidence has probative value, the general standards for

admissibility call for its admission. Moreover, even if the evidence was based on

science, Wisconsin is not a Daubert state. Hence, an admissibility challenge

premised exclusively on the unreliability of the observations misses the mark.

By the Court.-Judgment and order affirmed.

Recommended for publication in the official reports.

Judge David Finn