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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.
April 22, 1999
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.                                                                                    98-3043-CR
STATE OF WISCONSIN                                                                     IN COURT OF APPEALS
                                                                                       DISTRICT IV
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
SCOTT D. STEFFES,
DEFENDANT-APPELLANT.
APPEAL from a judgment of the circuit court for Rock County:
JAMES WELKER, Judge.   Affirmed in part; reversed in part and cause remanded
with directions.
EICH, J.1    Scott Steffes appeals from a judgment, entered after a
jury trial, finding him guilty of operating a motor vehicle while intoxicated.   He
argues: (a) that the circuit court erred when it allowed into evidence the fact that
1  This appeal is decided by a single judge pursuant to § 752.31(2)(f), STATS.




No. 98-3043-CR
he had refused to submit to standard field sobriety tests at the scene of his arrest,
and to submit to a blood-alcohol test after he had been arrested and taken to the
police station; and (b) that he was illegally stopped and detained by the arresting
officer.  We reject both arguments and affirm the judgment.
Town of Beloit Police Officer Dennis Hamil stopped Steffes on the
night in question after observing him leaving a tavern and driving down the street.2
Noticing an odor of intoxicants about his person and on his breath, that his eyes
were red and watery and his speech slurred, and that he was  “stumbling” and
having difficulty withdrawing his wallet and driver’s license, Hamil asked Steffes
to recite the alphabet, generally the first of several field sobriety tests administered
by police officers at the scene of an OWI arrest.   According to Hamil, Steffes
replied                                                                                      “that he wasn’t gonna do anything for me and that I got him.”   At that
point, Hamil arrested Steffes for driving under the influence, took him to the
police station, advised him of his rights under the implied consent law and asked
that he take a breath-alcohol test.   Steffes refused to take the test and was issued a
citation.   Shortly thereafter, Steffes received a notice of the State’s intent to revoke
his license pursuant to provisions of the law which impose a period of temporary
revocation for refusing to take a test.   Under the law, a driver wishing to contest
the revocation proceedings must file a demand for a hearing in circuit court within
a specified time period.   At the hearing, the court considers only three issues: (a)
whether, at the time the test was requested, the officer had detected the presence of
alcohol or other controlled substances on the driver’s   person or had reason to
believe that he or she was driving while intoxicated; (b) whether the officer gave
2  The facts of the stop are discussed at greater length in the concluding section of this
opinion.
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No. 98-3043-CR
the driver the information and “warnings” required by law; and (c) whether the
driver can show, by a preponderance of evidence, that the refusal was “due to a
physical inability to submit to the test due to a physical disability or disease
unrelated to the use of alcohol [or] controlled substances.”   If the court resolves
any of these issues in the driver’s favor, the administrative revocation otherwise
prescribed by law would not take effect.   Sections 343.305(9)(a)4, 5 and 6, STATS.
When a driver is properly “warned” under the law and refuses the
test, the fact of that refusal is admissible in evidence at a subsequent OWI trial “as
relevant to the defendant’s consciousness of guilt.”    State v. Schirmang,  210
Wis.2d 324, 332, 565 N.W.2d 225, 228 (Ct. App. 1997).
Steffes filed the required hearing demand but, for reasons the parties
do  not  explain,  no  hearing  was  ever  held—nor  was  Steffes’s  license  ever
administratively suspended under the implied-consent law.   Prior to his trial on the
OWI charge, Steffes filed a motion in limine seeking to preclude the State from
using the fact of his refusal at trial.   The motion was based on the fact that, despite
filing a timely demand for a refusal hearing, none had been held; and Steffes
claimed  that,  as  a  result,  no  adverse  inference  should  be  drawn  from  his
“purported refusal” to consent to a test.   The prosecutor initially stated to the court
that Steffes’s hearing request was untimely—that it was filed more than ten days
after he received the notice of intended revocation.   The court agreed and denied
Steffes’s motion, noting that, in its opinion, the request for a refusal hearing, and
the hearing itself, relates only to  “administrative  [license] suspension” and that
“the failure to hold a refusal hearing does not render the evidence inadmissible.”
At trial, in a hearing outside the jury’s presence, the court overruled Steffes’s
objection to the State’s question to the officer concerning his refusal to take the
test, noting that,  “if he wants to introduce evidence as to the reasons why he
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No. 98-3043-CR
refused [the test] and explain that to the jury, he can do that.”   The evidence of
Steffes’s refusal came in, and was eventually commented upon by the prosecutor
in his closing argument to the jury.   Officer Hamil also testified—very briefly and
without objection by Steffes—that he had also refused to submit to the  field
sobriety tests.
The State concedes that Steffes was improperly denied a hearing.   It
argues, however, that this should not lead to reversal because the evidence at trial
established  (1) that his initial “stop” by the officer was proper; and (2) that he
received all of the statutory “warnings.”   Citing State v. Donner, 192 Wis.2d 305,
531 N.W.2d 369 (Ct. App. 1995), the State says that, as a result, Steffes received
“the equivalent of an implied consent hearing” at trial, and that that should be
enough.   As we have set forth above, however, three, not just two, issues are to be
considered at the refusal hearing.   In addition to probable cause and the giving of
the  warnings,  the  defendant  also  has  the  opportunity  to  establish                   (by  a
preponderance of the evidence) that his or her refusal to take the test was due to a
physical  inability  or  disability.    There  is  no  question  in  this  case  that  the
appropriate warnings were given, and Steffes does not claim on this appeal that
Hamil lacked probable cause to arrest him.3   There is also no question, however,
that Steffes was denied the opportunity to attempt to justify his refusal under the
physical-disability provisions of the law.   He does not dispute that he was given
the warnings in this case, and evidence to that effect was put on at trial (as the
“foundation”  for  admissibility of  the  evidence  of  his refusal); he argues that,
3  As may be seen below, Steffes does argue that the officer lacked a reasonable suspicion
to stop him in the first place, an argument we reject.
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No. 98-3043-CR
despite that foundation, the evidence should not have been received “because the
… court did not conduct a refusal hearing, when it should have.”
We think the situation should be remedied, and that the appropriate
remedy is, as the State suggests, a remand to the trial court with directions to grant
Steffes’s request for a refusal hearing on the only question remaining—whether
his refusal was the result of a physical inability or disability to take the test under
§ 343.305(9)(a)(5)c, STATS.   Then, if the court determines that his refusal was
justified on that ground, a new trial should be ordered.   If the court rules that
Steffes has failed to justify his refusal under the statute, judgment on the jury’s
verdict should be re-entered.4    As the State points out, the supreme court has
approved  the  use  of  postconviction  hearings  to  remedy  similar  oversights  in
criminal proceedings.   See, e.g., State v. Johnson, 133 Wis.2d 207, 224-25, 395
N.W.2d 176, 184-85 (1986)  (determination of defendant’s competency to stand
trial); and State v. Nelson, 138 Wis.2d 418,  440, 406 N.W.2d 385, 394 (1987)
(availability of victim-witness).   We think such a remedy is appropriate here, as
well.
Steffes also moved in limine to bar evidence of his refusal to submit
to field sobriety tests at the scene of his arrest, and the circuit court denied the
motion.   He claims error here, as well.   We agree with Steffes that there is no
direct Wisconsin authority on point, and that, in State v. Babbitt, 188 Wis.2d 349,
363, 525 N.W.2d 102, 107 (Ct. App. 1994), where we held that refusal to submit
to field sobriety tests may be used as evidence of probable cause to arrest, we
4  In so ordering, we do not hold that the failure to hold a hearing—especially where, as
here, no administrative revocation was ever imposed—bars use of evidence of the fact of refusal
at trial.
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No. 98-3043-CR
expressly noted that our conclusion in that regard  “should not be construed to
mean that a defendant’s refusal to submit to a field sobriety test may be used as
evidence at trial.”
He refers us to (but does not discuss) a Florida Court of Appeals
case,  Taylor  v.  State,                                                                    625  So.2d                                             911   (Fla.  App.   2d  Dist.   1993),  as  one
“support[ing] his position.”    That case was overruled by the Florida Supreme
Court in 1995, however.   See State v. Taylor, 648 So.2d 701 (Fla. 1995).   Beyond
that, he argues that because, unlike a blood-alcohol test, field sobriety tests are not
required, and no law attaches adverse results to the failure to submit to them, his
refusal should not be considered as evidence of consciousness of guilt.   Like the
driver in Taylor, id. at 704, Steffes has had experience in these matters, inasmuch
as, according to the criminal complaint, this was his third such charge in the past
ten years.   As the Taylor court noted:
In  short,                                                                                   [defendant]  knew  that  refusal  was  not  a  “safe
harbor” free of adverse consequences and acted in spite of
that  knowledge.    His  refusal  thus  is  relevant  to  show
consciousness of guilt.   If he has an innocent explanation
for not taking the tests, he is free to offer that explanation
in court.
Id.
Finally, Steffes argues that we should reverse his conviction because
the arresting officer lacked a reasonable suspicion to stop and detain him.   Again,
we  disagree.     Police  officers  may,                                                     “in  appropriate  circumstances  and  in  an
appropriate manner,” stop a person for the purpose of investigating possible criminal
behavior even where there is no probable cause to arrest.   Terry v. Ohio, 392 U.S. 1,
22  (1968).    To  execute  a  valid  investigatory stop,  the  officer  must  reasonably
suspect, in light of his or her experience, that criminal activity has, is, or is about to
take place.  State v. Richardson, 156 Wis.2d 128, 139, 456 N.W.2d 830, 834 (1990).
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No. 98-3043-CR
To be reasonable, that suspicion must be based on “specific and articulable facts
which, taken together with rational inferences from those facts, reasonably warrant
th[e] intrusion.”    Id.    It is a common sense test whose  “fundamental focus” is
reasonableness under all of the facts and circumstances present.   Id. at 139-40, 456
N.W.2d at 834.   It asks the questions: “What is reasonable under the circumstances?
What would a reasonable police officer reasonably suspect in light of his or her
training and experience?   What should a reasonable police officer do?”   State v.
Anderson, 155 Wis.2d 77, 83-84, 454 N.W.2d 763, 766 (1990) (citation omitted).
At bottom,  “if any reasonable inference of wrongful conduct can be objectively
discerned, notwithstanding the existence of other innocent inferences that could be
drawn, the officers have the right to temporarily detain the individual for the purpose
of inquiry.”  Id. at 84, 454 N.W.2d at 766.
In this case, Hamil saw Steffes leave a bar late at night, “staggering”
across the street to a parking lot.   Believing him to be intoxicated, Hamil yelled at
Steffes, telling him not to drive his car.   According to Hamil, Steffes responded, in a
voice that was “a little slurred,” that he wasn’t driving.   Hamil then lost sight of
Steffes for a few moments.   He then saw the lights come on in one of the vehicles in
the lot and that the vehicle was having difficulty backing out of the parking stall,
requiring “two or three attempts” to do so.   Hamil testified that between the time he
briefly lost sight of Steffes and his observation of the vehicle attempting to back out
of the stall, no other persons left the bar and no one else was in the parking lot.
Based  on  his  observations,  and  being  satisfied  that  Steffes  was  inside,  Hamil
followed the vehicle and stopped it two blocks away, finding Steffes in the driver’s
seat.   While following the vehicle, Hamil did not notice any violations of traffic or
other laws.
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No. 98-3043-CR
Steffes, stressing the fact that Hamil briefly lost sight of him in the
parking lot, and conceded that he did not notice any traffic-law violations before he
stopped Steffes’s vehicle, says that there was nothing illegal or unusual about his
conduct sufficient to justify any reasonable suspicion on Hamil’s part that he was
committing any offense.
First, we do not consider that the brief interruption of Hamil’s view of
Steffes in the bar parking lot is significant.   He was able to testify that, during that
brief period of time no one else entered or left the lot.   Second, he testified that
Steffes was staggering as he left the bar and walked across the street and that his
speech was slurred when he responded to Hamil’s admonition not to drive.   And,
with respect to Steffes’s assertions that much, if not all of his conduct, could be
considered “innocent,” it is well established that the fact that a defendant’s acts by
themselves  were  lawful  and  could  well  have  innocent  explanations  is  not
determinative.  State v. Waldner, 206 Wis.2d 51, 59, 556 N.W.2d 681, 685 (1996).
The Fourth Amendment does not require a police officer
who lacks … probable cause to arrest to simply shrug his or
her shoulders and thus possibly allow a crime to occur or a
criminal to escape.   The law of investigative stops allow[s]
police officers to stop a person when they have less than
probable cause.   Moreover, police officers are not required
to  rule  out  the  possibility  of  innocent  behavior  before
initiating a brief stop….
….
Suspicious conduct by its very nature is ambiguous,
and the principal function of the investigative stop is to
quickly resolve that ambiguity.   Thus when a police officer
observes  lawful  but  suspicious  conduct,  if  a  reasonable
inference of unlawful conduct can be objectively discerned,
notwithstanding the existence of other innocent inferences
that  could  be  drawn,  police  officers  have  the  right  to
temporarily detain the individual for the purpose of inquiry.
Police officers are not required to rule out the possibility of
innocent behavior before initiating a brief stop.
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No. 98-3043-CR
Id.  at                                                                                  59-60,                                                                   556  N.W.2d  at  685-86   (internal  citations  and  quoted  sources
omitted).
We  hold  that,  under  these  standards  and  on  this  record,  Officer
Hamil  could  reasonably  suspect  that  Steffes  was  operating  a  vehicle  while
intoxicated, and we reject his arguments to the contrary.   The stop was proper.
We  therefore  reverse  the  judgment  and  remand  for  the  limited
purpose of holding the refusal hearing pursuant to Steffes’s request.   Should the
circuit court determine after that hearing that Steffes’s refusal was justified under
the “disability” provisions of § 343.305(9)(a)(5)c, STATS., a new trial should be
ordered.   If the court decides that issue against Steffes, the judgment of conviction
should stand.   In all other respects, we affirm the judgment.
By the Court.—Judgment affirmed in part; reversed in part and cause
remanded with directions.
                                                                                         This opinion will not be published in the official reports.   See RULE
809.23(1)                                                                                (b)4, STATS.
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