After stopping a motorist for speeding on the beltline highway in Madison shortly before midnight on a Friday night, a Dane County sheriff's deputy detected a strong odor of intoxicants on the driver's breath. The driver stated that he had consumed approximately two drinks at a social function. Based the strong odor of intoxicants and the admission of alcohol consumption, the deputy requested that the driver exit the vehicle and perform field sobriety testing a roadside breath test. The driver was arrested and ultimately charged with operating a motor vehicle under the influence of an intoxicant and with having a prohibited alcohol concentration above .08.
Attorney John Orth challenged the lawfulness of detaining his client for the administration of field sobriety testing, asserting that while it was undisputed that his client had consumed alcohol before driving, that alone is not illegal and the deputy lacked the necessary reasonable suspicion to believe that he was, in fact, intoxicated. Following a hearing in the Dane County Circuit Court, the judge assigned to the case agreed with Attorney Orth and found that the detention for field sobriety testing was unlawful and ordered that all evidence obtained after the initial stop, including all field sobriety tests and breath tests, be suppressed and may not be used against his client. Consequently, the prosecution is left with a drunk driving charge but no admissible evidence of intoxication, which will presumably lead to dismissal of the charges.