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COURT OF APPEALS
DECISION
NOTICE
DATED AND FILED
This opinion is subject to further editing. If
published, the official version will appear in the
bound volume of the Official Reports.
March 18, 1998
A party may file with the Supreme Court a
                                                                                         Marilyn L. Graves                                petition  to  review  an  adverse  decision  by  the
                                                                                         Clerk, Court of Appeals                          Court of Appeals.  See § 808.10 and RULE 809.62,
                                                                                         of Wisconsin                                     STATS.
No.                                                                                      97-3232
STATE OF WISCONSIN                                                                       IN COURT OF APPEALS
                                                                                         DISTRICT II
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
HOWARD D. PLATT,
DEFENDANT-APPELLANT.
APPEAL from an order of the circuit court for Walworth County:
JOHN R. RACE, Judge.  Affirmed.
BROWN, J.                                                                                Howard D. Platt appeals from the trial court’s
order revoking his driving privileges following a finding that his refusal to submit
to chemical testing was unreasonable.   He argues that the trial court erred because:
(1) the officer did not articulate a reasonable suspicion to stop his vehicle, (2) the
officer did not have probable cause to arrest him for driving while intoxicated, and




No. 97-3232
(3) the officer did not fully inform him of his rights and the consequences of
refusing to submit to chemical testing.   We disagree and affirm.
The  pertinent  facts  are  as  follows.    Officer  Kenneth  Mulhollon
testified that just before midnight on June 15, 1997, he was driving northbound on
Walworth Avenue in his squad car when he observed a black colored vehicle
driven by Platt traveling westbound through a bank parking lot.   When the vehicle
exited the parking lot, crossing Walworth Avenue, it failed to yield the right-of-
way to Mulhollon and then continued westbound on Cherry Street.   After pursuing
the vehicle for approximately two blocks,  Mulhollon  stopped the vehicle  and
approached the driver’s side of the car.
Mulhollon testified that he then asked Platt to roll down the driver’s
side window; Platt rolled down the rear driver’s side window of  the vehicle.
Mulhollon again asked Platt to roll down his window, which he did.   Mulhollon
testified that he immediately noticed a strong smell of intoxicants and that Platt’s
eyes were bloodshot and glassy.   He also testified that because it was raining quite
heavily and because he noticed a large, black Rottweiler in the back seat, he asked
Platt to roll up the rear window, which Platt did.
Mulhollon  asked  Platt  for  identification.    He  testified  that  Platt
exhibited  poor  coordination  in  producing  his  driver’s  license.     Mulhollon
explained that Platt made two attempts to grab the license from his wallet, and he
compared Platt’s movements to those of a person whose hands are extremely cold
and cannot grasp or move things as directed.   Mulhollon then asked Platt if he had
been drinking, and Platt responded that he had not.   However, when Mulhollon
told Platt that he could smell a strong odor of intoxicants, Platt responded “[O]kay,
I had a few.”
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No. 97-3232
Upon the arrival of another officer, Mulhollon asked Platt to step out
of his vehicle.   Platt had to grasp the driver’s side door with both hands to balance
himself while exiting the vehicle.   Moreover, when he stood up he continued to
lean quite heavily on the door while swaying back and forth.   Mulhollon testified
that because Platt smelled of intoxicants, exhibited poor coordination and balance,
and had bloodshot, glassy eyes, he decided that Platt was under the influence of
intoxicants and placed him under arrest.
Mulhollon then placed Platt in a squad car and took him to the
Williams Bay Police Department, where Mulhollon and another officer decided to
administer field sobriety tests in the garage of the police department.   During the
first test, however, Platt lost his balance, began to stumble and needed assistance
to keep from falling.   Mulhollon decided against further testing because he was
afraid that Platt would fall and injure himself on the concrete floor of the garage.
Afterwards, Mulhollon issued Platt a citation for operating a vehicle
while under the influence of an intoxicant.   He then read Platt section A of the
Informing the Accused form and asked if he would submit to a chemical test of his
blood.   He did not read Platt section B of the form, which applies to holders of
commercial driver’s licenses.   Mulhollon testified that he asked Platt four times if
he would submit to the test.   Platt did not respond to the first two requests, and
after the third, he asked if he could call an attorney.   Mulhollon explained to Platt
that he would be allowed to phone an attorney from the jail and that if he failed to
respond to the request, it would be marked as a refusal on the form.   Mulhollon
testified that because he received no response to a fourth request to submit to
chemical testing, he marked the box indicating that Platt had refused the test.
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No. 97-3232
At  the  refusal  hearing,  the  State  introduced  the  testimony  of
Mulhollon.   Platt did not enter any evidence on his behalf.   Based on Mulhollon’s
testimony, the trial court found that the stop was reasonable, there was probable
cause for the arrest, Platt was properly read the Informing the Accused form and
Platt refused to submit to chemical testing.   The trial court then found that Platt’s
refusal was unreasonable and revoked his driver’s license for a period of two
years.  Platt appeals.
First, Platt contends that the officer did not articulate a reasonable
suspicion  for  stopping  his  vehicle.     We  disagree.     Under  certain  limited
circumstances the police may stop persons in the absence of probable cause.   See
United States v. Hensley, 469 U.S. 221, 226 (1985).   In particular, police officers
may briefly stop a moving vehicle to investigate a reasonable suspicion that its
occupants are involved in criminal activity.   See id.                                   “The test is an objective test.
Law enforcement officers may only infringe on the individual’s interest to be free
of a stop and detention if they have a suspicion grounded in specific, articulable
facts and reasonable inferences from those facts, that the individual has committed
a crime.”   State v. Guzy, 139 Wis.2d 663, 675, 407 N.W.2d 548, 554 (1987).   An
“inchoate and unparticularized suspicion or  ‘hunch’” will not suffice.   Terry v.
Ohio, 392 U.S. 1, 27 (1968).
The reasonableness of an investigative stop depends upon the facts
and circumstances that are present at the time of the stop.   See Guzy, 139 Wis.2d
at 679, 407 N.W.2d at 555.   We will not overturn the trial court’s findings of fact
unless they are against the great weight and clear preponderance of the evidence.
See id. at 671, 407 N.W.2d at 552.   Whether the facts as found by the trial court
satisfy the constitutional requirement of reasonableness, however, is a question of
law which we review independently of the trial court.  See id.
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No. 97-3232
We conclude that Mulhollon articulated a reasonable suspicion that
Platt had committed a traffic offense and was therefore justified in stopping Platt’s
vehicle.   Mulhollon testified that as he drove northbound on Walworth Avenue, he
observed Platt’s vehicle driving westbound through a parking lot.    When Platt
exited the parking lot, he failed to yield to the officer’s car, drove across Walworth
Avenue  and  then  continued  westbound  on  Cherry  Street.    Thus,  the  record
supports the trial court’s finding that Platt failed to yield the right-of-way when he
exited the parking lot and crossed Walworth Avenue.   Moreover, we hold that
Mulhollon articulated a reasonable suspicion that a crime had been committed
when he testified that Platt failed to yield the right-of-way when he exited the
parking lot.   We affirm the trial court on this issue.
Second, Platt argues that Mulhollon did not have probable cause to
arrest him for driving while under the influence of an intoxicant.   Probable cause
generally refers to  “that quantum of evidence which would lead a reasonable
police officer to believe that the defendant probably committed a crime.”   State v.
Nordness, 128 Wis.2d 15, 35, 381 N.W.2d 300, 308 (1986).   It exists where the
totality of the circumstances within the arresting officer’s knowledge at the time of
the arrest would lead a reasonable police officer to believe that the defendant was
operating a motor vehicle while under the influence of an intoxicant.    See id.
Probable cause does not require “proof beyond a reasonable doubt or even that
guilt is more likely than not.”   State v. Babbitt, 188 Wis.2d 349, 357, 525 N.W.2d
102, 104 (Ct. App. 1994).   Whether an officer had probable cause to arrest is a
question of law which we review without deference to the trial court.   See id. at
356, 525 N.W.2d at 104.
Our review of  the record indicates that under the totality of  the
circumstances, a reasonable officer would believe that Platt was driving while
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No. 97-3232
under the influence of an intoxicant.1   Mulhollon testified that Platt failed to yield
the right-of-way when he exited the bank parking lot.   Furthermore, Platt rolled
down  the  wrong  window,  smelled  strongly  of  intoxicants  and  had  bloodshot,
glassy eyes.    Platt admitted that he  “had a few” drinks that evening.    He had
difficulty grasping his driver’s license, and he also exhibited poor balance and
coordination by having to place both of his hands on the car door when he exited
the car, by continuing to lean heavily on the car door and by swaying back and
forth when he stood up.
Platt, however, argues that under State v. Swanson, 164 Wis.2d 437,
475  N.W.2d  148  (1991), police officers must perform a field sobriety test to
establish probable cause.   He is wrong.   Swanson implies that for the police to
establish probable cause a field sobriety test is generally necessary to determine
whether the consumption of alcohol sufficiently impaired the suspect’s physical
capacities.   See id. at 453 n.6, 475 N.W.2d at 155.   Unexplained erratic driving,
the  smell  of  intoxicants  and  the  approximate  time  of  night  of  the  stop  only
established a reasonable suspicion that the suspect was intoxicated; these factors
did not establish probable cause.   See id.
We have previously held, however, that  “[t]he Swanson footnote
does not mean that under all circumstances the officer must first perform a field
sobriety test, before deciding whether to arrest for operating a motor vehicle while
under the influence of an intoxicant.”   State v. Wille, 185 Wis.2d 673, 684, 518
N.W.2d 325, 329 (Ct. App. 1994).   Here, the officer’s decision to arrest was not
1    The State concedes, as it must, that because Platt was already under arrest when
Mulhollon administered a field sobriety test in the garage of the police station, the result of this
test cannot be used to establish probable cause to arrest.
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No. 97-3232
based solely on his observations of Platt’s driving, the smell of intoxicants, Platt’s
bloodshot, glassy eyes and  the  time  of  the  stop.    Mulhollon testified that he
observed Platt exhibit poor hand/eye coordination, that Platt was unable to exit the
car without the aid of the car door, that Platt was unable to stand up without
leaning on the car door and that even then he continued to sway back and forth.
Given  these  circumstances,  Mulhollon  did  not  need  a  field  sobriety  test  to
establish probable cause as to whether Platt was operating a motor vehicle while
under the influence of an intoxicant.   We therefore reject Platt’s argument that
Mulhollon did not have probable cause to arrest him.
Finally, Platt argues that because Mulhollon did not read him section
B of the Informing the Accused form (which applies only to commercial motor
vehicle drivers and license holders), the officer failed to fully inform him of his
rights  and  the  consequences  of  his  refusal  as  required  under  §  343.305(4m),
STATS.   Whether Platt was properly informed of his rights under § 343.305 is a
question of law which we review without deference to the trial court.   See State v.
Piskula, 168 Wis.2d 135, 138, 483 N.W.2d 250, 251 (Ct. App. 1992).
Platt does not claim that he possesses a commercial driver’s license
and,  therefore,  was  not  fully  informed  of  all  of  his  rights.    Instead,  Platt’s
argument is premised on a belief that once it is shown that an officer did not read
section B of the Informing the Accused form to the defendant, the burden is on the
State to show that the defendant does not have a commercial driver’s license.
Therefore, concludes Platt, because the State did not enter evidence showing that
he had no commercial driver’s license, he was not properly informed under  §
343.305, STATS., and he cannot be penalized for refusing the chemical test.
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No. 97-3232
The purpose of the Informing the Accused form is to inform the
accused of the rights and penalties relating to him or her under § 343.305, STATS.,
so that he or she can make an informed decision.   See Piskula, 168 Wis.2d at 140-
41, 483 N.W.2d at 252.   Here, Mulhollon read Platt section A of the form, which
lists all the rights and penalties under § 343.305(4).   Although Platt was not read
the rights and penalties relating to holders of commercial vehicle licenses under §
343.305(4m), he was neither driving a commercial vehicle when stopped nor did
he ever assert that he holds a commercial driver’s license.   Platt, not the State, has
a duty to show why he needed the information under § 343.305(4m) to make an
informed decision.    He failed to do so.    We therefore conclude that Platt was
informed of all of the rights and penalties relating to him under § 343.305(4) when
the officer read him section A of the Informing the Accused form.   Platt had all of
the  statutorily  designated  information  which  he  needed  to  make  an  informed
decision.   Thus, because Platt was informed of all of the statutorily designated
information he needed to make an informed decision, we reject his argument.
By the Court.—Order affirmed.
This opinion will not be published.  See RULE 809.23(1)(b)4, STATS.
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