State v. Radder

2018 WI App 36, 915 N.W.2d 180, 382 Wis. 2d 749
CourtCourt of Appeals of Wisconsin
DecidedMay 16, 2018
DocketAppeal No. 2016AP1954-CR
StatusPublished
Cited by7 cases

This text of 2018 WI App 36 (State v. Radder) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Radder, 2018 WI App 36, 915 N.W.2d 180, 382 Wis. 2d 749 (Wis. Ct. App. 2018).

Opinions

HAGEDORN, J.

*754¶1 Dylan D. Radder was arrested for operating a motor vehicle while intoxicated (OWI), and he appeals from an order denying his amended pretrial motion to suppress. The circuit court concluded that the motion was not sufficiently particular and denied the motion without a hearing. The issue before us is whether the circuit court erred by not conducting an evidentiary hearing on the motion. Radder's chief argument is that the pretrial pleading standards established in State v. Velez1 are inapplicable, or at least significantly lower, on a motion to suppress evidence because the State bears the burden to show that warrantless searches and seizures are reasonable. We disagree. Velez sets forth the proper *755standards to determine whether a pretrial motion requires an evidentiary hearing, and Radder's motion fails to satisfy these standards. Accordingly, we affirm.

BACKGROUND

¶2 On May 12, 2016, Radder was pulled over by Officer Mark Meyers of the New Holstein Police Department. According to the criminal complaint, Meyers informed Radder that he stopped Radder's vehicle *184due to expired registration. Smelling "a strong odor of intoxicants," Meyers noticed a case of beer on the floor behind the driver's seat, and two bottles from the case appeared to be open. At some point during the stop, Meyers performed a "Department of Transportation query" and discovered that Radder had been previously arrested for OWI.

¶3 Meyers asked Radder to exit his vehicle to administer the Standardized Field Sobriety tests-the horizontal gaze nystagmus (HGN) test, the walk-and-turn test, and the one-leg-stand test. After Radder had exited the vehicle, Meyers questioned Radder about the beer. Radder responded "that he makes his own beer and that he did not consume the beer today." After observing "a total of six clues" of impairment during the HGN test, Radder was asked how much he had to drink, to which he responded he "had two Jack and Coke[s] and one shot." Meyers continued with the other two field sobriety tests and observed multiple "clues" of impairment. Then Meyers asked Radder to submit to a preliminary breath test (PBT) and again asked if Radder had been drinking. Radder admitted to stopping at a friend's birthday party after work and reiterated that he had consumed two "Jack and Coke[s] and a mystery shot." The PBT result showed a 0.082% blood-alcohol concentration (BAC), above *756the prescribed limit of 0.08%. See WIS. STAT. § 340.01(46m)(a) (2015-16).2

¶4 Based on this information, Meyers arrested Radder for OWI. Radder's blood was drawn (within three hours) at Calumet Medical Center and showed a BAC of 0.084%, consistent with the PBT. Radder was charged with OWI and operating with a prohibited alcohol concentration.

¶5 Radder then moved to suppress all evidence "derived from [an] unlawful stop, detention, and arrest" and requested an evidentiary hearing. The motion specifically averred that Meyers lacked reasonable suspicion to stop Radder's vehicle in the first instance and had no authority to detain him thereafter without a warrant. Other than bare legal conclusions, the motion offered no support for these assertions. Radder further alleged that Meyers lacked probable cause to arrest him for OWI-again offering little in the way of detail or factual support. Instead, the motion generally asserted that there were insufficient indicia of impairment-whether through Radder's driving or "behavior and demeanor." The motion also took aim at the administration of the field sobriety tests. The motion acknowledged that the walk-and-turn and one-leg-stand tests "may have some degree of general reliability," but averred that these tests were "improperly administered." The motion did not, however, give any details concerning how the tests were improperly administered. As to the HGN test, the motion asserted that the test is "inherently unreliable as it was improperly administered." The motion did not address the *757specific factual allegations of impairment detailed in the complaint or Meyers' suspicion that Radder's registration was expired.

¶6 The State argued that the motion should be denied without a hearing on the grounds that it failed to "state with particularity" the grounds for the motion as required by WIS. STAT. § 971.30(2)(c). The circuit court agreed and denied the motion, explaining that "[t]he defense has chosen to file a boiler plate motion that fails to *185state any factual basis for the motion or how the legal grounds apply to the case."

¶7 Radder filed a motion for reconsideration and an amended motion. The amended motion to suppress was largely identical to Radder's original motion supplemented with a few additional details. Regarding the initial stop, the motion maintained the generic assertion that Meyers had no "reasonable suspicion that [Radder] had committed any offense," now adding, "including the offense of expired registration." Regarding the OWI investigation and arrest, Radder's amended motion added that he was not accused of any moving violations and only admitted to drinking quantities of alcohol which would not cause impairment or a prohibited alcohol concentration. The amended motion reiterated the assertion that the field sobriety tests had been administered improperly, but now added that "the HGN Test is an inherently unreliable test."3 The circuit court again denied the motion without a hearing. Radder sought leave to appeal, which we granted.4

*758DISCUSSION

¶8 WISCONSIN STAT. § 971.30(2)(c) provides that all motions shall "[s]tate with particularity the grounds for the motion and the order or relief sought." This requirement to "[s]tate with particularity" applies to both pretrial and postconviction motions. See State v. Allen , 2004 WI 106, ¶10, 274 Wis. 2d 568, 682 N.W.2d 433. The underlying rationale for the particularity requirement is to provide notice to both the nonmoving party and the court "of the issues being raised by the defendant in order to fully argue and consider those issues." State v. Caban , 210 Wis. 2d 597, 605-06, 563 N.W.2d 501 (1997).

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Bluebook (online)
2018 WI App 36, 915 N.W.2d 180, 382 Wis. 2d 749, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-radder-wisctapp-2018.