COURT OF APPEALS

DECISION

DATED AND FILED

January 19, 2022

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

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. 2020AP1465 Cir. Ct. No. 2020TR561

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT III

IN THE MATTER OF THE REFUSAL OF BRIAN M. STEINERT:

FOREST COUNTY,

 PLAINTIFF-RESPONDENT,

 V.

BRIAN M. STEINERT,

 DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Forest County: 

LEON D. STENZ, Judge. Affirmed. 

¶1 STARK, P.J.1 Brian Steinert appeals a judgment revoking his 

operating privilege as a result of the circuit court’s determination that he

 

1

 This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2019-20). All 

references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
2

unreasonably refused to submit to an evidentiary chemical test of his blood. See 

WIS. STAT. § 343.305(10)(a). Steinert argues that his refusal was reasonable 

because he was not lawfully placed under arrest. Specifically, he contends that the 

officers lacked probable cause to arrest him for possession of drug paraphernalia at 

the scene of the traffic stop. He further contends that the officers violated WIS.

STAT. § 968.24 by transporting him outside the vicinity of the stop to perform field 

sobriety tests, without probable cause to do so.

¶2 Forest County (“the County”) concedes that the officers lacked 

probable cause to arrest Steinert for possession of drug paraphernalia. We 

nevertheless conclude Steinert was lawfully placed under arrest at the scene of the 

traffic stop because the officers had probable cause to believe that he had operated 

a motor vehicle with a detectable amount of a restricted controlled substance in his 

blood, contrary to WIS. STAT. § 346.63(1)(am). Under these circumstances, 

Steinert’s transportation to another location to perform field sobriety tests did not 

violate WIS. STAT. § 968.24. We therefore reject Steinert’s claim that his refusal 

was reasonable, and we affirm the circuit court’s judgment revoking his operating 

privilege.

BACKGROUND

¶3 On June 9, 2020, Steinert was issued a notice of intent to revoke his 

operating privilege, based on his refusal to submit to a chemical test of his blood

upon request by a law enforcement officer. See WIS. STAT. § 343.305(3)(a), 

(9)(a). Steinert timely requested a refusal hearing, which took place on July 27.

¶4 During the refusal hearing, Forest County Sheriff’s Deputy Connor 

Johnson testified that on June 8, 2020, at about 10:30 p.m., he observed a vehicle 

driving northbound on a state highway with a defective passenger-side headlight. 
3

He stopped the vehicle based on the defective headlight, and the driver identified 

himself as Steinert. Johnson observed that Steinert’s speech was slow and that he 

was stumbling over his words, which led Johnson to believe that Steinert “was 

under the influence of something.” Johnson did not, however, observe the odor of 

intoxicants or any “driving habits” suggesting intoxication.

¶5 Johnson testified that he had past experience with Steinert, which 

involved methamphetamine. Given that past experience, he decided to ask Canine 

Officer Ryan Wilson to respond to the scene to perform a dog sniff of Steinert’s 

vehicle. Wilson and Deputy Adam Boney arrived on the scene while Johnson was 

preparing a written warning regarding Steinert’s defective headlight. Wilson and 

Boney directed Steinert and his passenger to exit the vehicle, which they did. 

Johnson then heard “bickering” between Steinert and Boney, so he exited his own 

vehicle and went to assist the other officers.

¶6 At that point, Boney advised Johnson that a “syringe with brown 

residue” had been found on Steinert’s person. Steinert and his passenger were 

then placed in handcuffs. Based on the syringe, the officers decided to search 

Steinert’s vehicle, but no contraband was located during that search. After the

search, Boney informed Johnson that Steinert had admitted using 

methamphetamine at 2:00 p.m. that day—about 8.5 hours earlier. Johnson 

testified that his “training and experience” included “speaking with DRE’s [drug 

recognition experts] in the Forest County Drug Task Force who advised [him that] 

meth can stay in the system [for] up to 24 hours.” Based on that knowledge, as 

well as Steinert’s “slow, stuttered speech” and his admission to using 

methamphetamine 8.5 hours earlier, Johnson believed that Steinert was under the 

influence of methamphetamine.
4

¶7 The officers then decided to administer field sobriety tests. Johnson 

explained, however, that they did not want to conduct those tests at the scene of 

the stop because they “thought it would be better to bring [Steinert] back to a 

control environment” where a DRE assessment could take place. Johnson advised 

Steinert that he was under arrest for possession of drug paraphernalia, and Steinert

was then transported to the Forest County Sheriff’s Office, where he refused to 

perform field sobriety tests. Thereafter, Johnson read Steinert the Informing the 

Accused form, and Steinert refused to submit to a chemical test of his blood. The

officers subsequently obtained a warrant to draw Steinert’s blood.

¶8 On cross-examination, Johnson reiterated that Steinert was placed 

under arrest for possession of drug paraphernalia at the scene of the traffic stop. 

Johnson testified that at the time of the stop, he believed the syringe found on 

Steinert constituted drug paraphernalia. Johnson conceded, however, that he had 

since learned the syringe did not qualify as drug paraphernalia under the relevant 

statute. See WIS. STAT. § 961.571(1)(b)1. Johnson did not testify that Steinert 

was placed under arrest for any other offense at the scene of the stop.

¶9 Following Johnson’s testimony, Steinert argued that the circuit court 

could not revoke his operating privilege based on his refusal to submit to a blood 

test because his arrest was unlawful. Specifically, he contended that the officers 

lacked probable cause to arrest him at the scene of the traffic stop, and that they 

violated WIS. STAT. § 968.24 by transporting him outside the vicinity of the stop to 

perform field sobriety tests, without probable cause to do so.

¶10 The circuit court rejected Steinert’s arguments, concluding: (1) the 

officers “quite possibly” had probable cause to arrest Steinert for operating a 

motor vehicle while intoxicated (OWI) at the scene of the traffic stop, but they did 
5

not arrest him for OWI at that point; (2) Steinert’s transportation to the sheriff’s 

office was reasonable under the circumstances and did not violate WIS. STAT.

§ 968.24; and (3) the officers’ observations after Steinert arrived at the sheriff’s 

office gave rise to probable cause to arrest him for OWI. The court therefore 

concluded that Steinert was lawfully arrested for OWI at the sheriff’s office. The 

court further concluded that Johnson read Steinert the Informing the Accused form 

“in compliance with the statute,” that Steinert refused the requested test of his 

blood, and that Steinert’s refusal was unreasonable. The court therefore entered a 

final judgment revoking Steinert’s operating privilege, and Steinert now appeals.

DISCUSSION

¶11 On appeal, Steinert renews his argument that the officers lacked 

probable cause to arrest him for possession of drug paraphernalia at the scene of 

the traffic stop. In response, the County correctly concedes that the officers lacked 

probable cause to arrest Steinert for that offense. WISCONSIN STAT.

§ 961.571(1)(b)1. expressly states that the term “drug paraphernalia” excludes 

“[h]ypodermic syringes, needles and other objects used or intended for use in 

parenterally injecting substances into the human body.” As such, the syringe 

found on Steinert’s person during the stop did not qualify as drug paraphernalia, 

and the officers therefore lacked probable cause to arrest him for possession of 

drug paraphernalia.

¶12 Absent a valid basis for his arrest at the scene of the stop, Steinert 

next argues the circuit court erred by concluding that the officers did not violate 

WIS. STAT. § 968.24 when they transported him to the sheriff’s office to perform 

field sobriety tests. Section 968.24 permits a law enforcement officer to stop and 

question a person in a public place, without arresting the person, when the officer 
6

“reasonably suspects that such person is committing, is about to commit or has 

committed a crime.” The statute provides, however, that the temporary detention 

and questioning “shall be conducted in the vicinity where the person was 

stopped.” Sec. 968.24.

¶13 Steinert asserts that the officers transported him outside the vicinity 

of the traffic stop when they moved him to the sheriff’s office, which was six 

miles away. He therefore contends that his transportation to the sheriff’s office 

was not permitted by WIS. STAT. § 968.24 and instead constituted a “de[ ]facto 

arrest” without probable cause. As a result, Steinert argues that his subsequent 

arrest for OWI at the sheriff’s office was unlawful. Because he was not lawfully 

arrested, Steinert argues his refusal to submit to a blood test was not unreasonable,

and the circuit court thus erred by revoking his operating privilege. See State v. 

Anagnos, 2012 WI 64, ¶43, 341 Wis. 2d 576, 815 N.W.2d 675 (noting that a court 

may not revoke a defendant’s operating privilege if it determines that the 

defendant was not lawfully placed under arrest).

¶14 The County does not address Steinert’s argument that his 

transportation to the sheriff’s office was outside the vicinity of the stop and 

therefore violated WIS. STAT. § 968.24. Instead, the County contends that Steinert 

was lawfully arrested at the scene of the stop because the officers had probable 

cause to arrest him for operating a motor vehicle with a detectable amount of a 

restricted controlled substance in his blood. Although the officers erroneously 

stated at the scene of the stop that they were arresting Steinert for possession of 

drug paraphernalia, the County correctly notes that the legality of an arrest “does 

not depend on whether the arresting officer articulates the correct legal basis for 

the arrest” or on “the subjective motivation of the arresting officer.” State v. 

Repenshek, 2004 WI App 229, ¶10, 277 Wis. 2d 780, 691 N.W.2d 369. Stated 
7

differently, “even when an officer acts under a mistaken understanding of the 

crime committed, an objective test is used to determine the legality of the arrest.” 

Id., ¶11.

¶15 Applying that objective test in the instant case, we agree with the 

County that the officers had probable cause to arrest Steinert at the scene of the 

traffic stop for operating a motor vehicle with a detectable amount of a restricted 

controlled substance in his blood. The existence of probable cause presents a 

question of law that we review independently. State v. Kutz, 2003 WI App 205, 

¶13, 267 Wis. 2d 531, 671 N.W.2d 660. “Probable cause for arrest exists when 

the totality of the circumstances within the arresting officer’s knowledge would 

lead a reasonable police officer to believe that the defendant probably committed a 

crime.” Id., ¶11. The information must be sufficient to lead a reasonable officer 

to believe that the defendant’s involvement in a crime is more than a mere 

possibility; however, the information need not rise to the level of proof beyond a 

reasonable doubt, or even establish that the defendant’s guilt is more likely than 

not. Id. In other words, probable cause “requires only that the facts available to 

the officer would warrant a person of reasonable caution to believe that an offense

likely was committed.” State v. Nieves, 2007 WI App 189, ¶14, 304 Wis. 2d 182, 

738 N.W.2d 125.

¶16 Here, the facts available to the officers would have warranted a 

person of reasonable caution to believe that Steinert had likely violated WIS. STAT.

§ 346.63(1)(am), which provides that no person may operate a motor vehicle while 

the person “has a detectable amount of a restricted controlled substance in his or 

her blood.” The term “restricted controlled substance” includes 

methamphetamine. See WIS. STAT. § 340.01(50m)(d). Notably, a conviction 

under § 346.63(1)(am) does not require proof that the person was impaired at the 
8

time he or she operated a motor vehicle, only that a detectable amount of a 

restricted controlled substance was present in his or her blood. See State v. Smet, 

2005 WI App 263, ¶23, 288 Wis. 2d 525, 709 N.W.2d 474. 

¶17 Before Steinert was placed under arrest at the scene of the traffic 

stop, Johnson had observed that Steinert’s speech was slow and that he was 

stumbling over his words. The officers also knew that a syringe, which is 

commonly used to inject illegal drugs, had been found on Steinert’s person.2 In 

addition, Johnson had prior experience with Steinert, which involved 

methamphetamine. Steinert also told the officers that he had used 

methamphetamine approximately 8.5 hours before the stop, and Johnson knew, 

based on his training and experience, that methamphetamine can remain in a 

person’s system for up to twenty-four hours. Taken together, these facts gave rise 

to probable cause that Steinert had operated a motor vehicle with a detectable 

amount of a restricted controlled substance in his blood.

¶18 In his reply brief, Steinert argues “the ability to opine [that] a 

motorist has a detectable amount of meth at a given time is a question beyond the 

ability of the average person.” He further contends that Johnson “lacked the 

capacity to opine if Steinert was driving with a detectable amount of meth” in his 

blood. Steinert then asserts that the general proposition that methamphetamine 

 

2

 Although Steinert’s possession of the syringe did not give rise to probable cause to 

arrest him for possession of drug paraphernalia, the syringe may be considered in the totality-ofthe-circumstances analysis when determining whether probable cause existed to arrest Steinert for 

operating a motor vehicle with a detectable amount of a restricted controlled substance in his 

blood. See State v. Manlick, Nos. 2014AP2138-CR and 2014AP2626-CR, unpublished slip op. 

¶¶10-11 (WI App Apr. 1, 2015); see also WIS. STAT. RULE 809.23(3)(b) (noting that an 

unpublished opinion authored by a single judge and issued after July 1, 2009, may be cited for its 

persuasive value).
9

can remain in a person’s system for twenty-four hours does not establish probable 

cause to believe that methamphetamine actually was present in his system 8.5 

hours after he used it. He contends the record does not support a determination 

that Johnson “had the qualifications to opine [that] meth probably was present [in 

his blood] at that time.”

¶19 In support of this argument, Steinert cites State v. Chitwood, 2016 

WI App 36, ¶¶1, 34, 369 Wis. 2d 132, 879 N.W.2d 786, where we held that a 

DRE’s testimony about whether the defendant was under the influence of a 

particular drug was “based on specialized knowledge” and was therefore subject to 

WIS. STAT. § 907.02(1)—the statute governing the admissibility of expert 

testimony. The present case, however, does not involve the admissibility of expert 

testimony. It involves a determination of whether the facts gave rise to probable 

cause to believe that Steinert operated his motor vehicle with a detectable amount 

of a restricted controlled substance in his blood. Steinert does not cite any legal 

authority in support of the proposition that Johnson was required to have any sort 

of qualifications as an expert in order to make that determination.

¶20 As noted above, probable cause does not require an officer to 

determine that an individual more likely than not committed a crime. Kutz, 267 

Wis. 2d 531, ¶11. Instead, it merely requires that the facts available to the officer 

“would warrant a person of reasonable caution to believe that an offense likely 

was committed.” Nieves, 304 Wis. 2d 182, ¶14. Knowing that methamphetamine 

can stay in a person’s system for up to twenty-four hours, and knowing that 

Steinert had admitted using methamphetamine approximately 8.5 hours before the 

stop, a reasonable officer in Johnson’s position could conclude it was likely that 

Steinert had a detectable amount of a restricted controlled substance in his blood at 

the time he operated his motor vehicle. Moreover, the officers also knew that 
10

Johnson’s speech was slow and stumbling, that he had previously been involved 

with methamphetamine, and that a syringe had been found on his person. All of 

these facts, taken together, gave rise to probable cause to arrest Steinert for 

operating a motor vehicle with a detectable amount of a restricted controlled 

substance in his blood.

¶21 We therefore agree with the County that Steinert was lawfully 

arrested at the scene of the traffic stop. Steinert does not dispute that if the 

officers had probable cause to arrest him at the scene of the stop, then his 

subsequent transportation to the sheriff’s office did not violate WIS. STAT.

§ 968.24.3 Because Steinert was lawfully arrested, the circuit court properly 

determined that his refusal to submit to an evidentiary chemical test of his blood 

was unreasonable. Accordingly, we affirm the court’s judgment revoking 

Steinert’s operating privilege.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT. RULE 

809.23(1)(b)4.

 

3

 Under these circumstances, we need not address Steinert’s additional argument that the 

circuit court erroneously exercised its discretion by refusing to consider a map that Steinert relied 

upon to establish the distance between the traffic stop and the sheriff’s office. See Turner v. 

Taylor, 2003 WI App 256, ¶1 n.1, 268 Wis. 2d 628, 673 N.W.2d 716 (court of appeals need not 

address all issues raised by the parties if one is dispositive).