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Reasonable Suspicion for PBT

County of Sauk v. Julio Leon, 2010AP1593, District 4, 11/24/10

court of appeals decision (1-judge, not for publication); for Leon: Robert C. Raymond; Leon BiC; State Resp.; Reply

Odor of intoxicants insufficient, alone, to support administering PBT.

¶20      When an officer is not aware of bad driving, then other factors suggesting impairment must be more substantial.  For example, a speeding or significant lane violation at bar time provides a far different context than is presented here.  See State v. Waldner, 206 Wis. 2d 51, 58, 556 N.W.2d 681 (1996) (“building blocks of fact” must accumulate, raising reasonable inferences about a cumulative effect creating reasonable suspicion of impaired driving); see also, e.g., State v. Repenshek, 2004 WI App 229, ¶30, 277 Wis. 2d 780, 691 N.W.2d 369 (officer possessed reasonable suspicion of impaired driving when driver likely caused serious vehicle accident by negligent operation of truck and refused to take a PBT).

¶21      Further, while the deputy was not required to credit Leon’s claim of having had no more than one beer, along with food, approximately two hours earlier, the deputy was not presented with a suspiciously vague admission of “some” drinking or “a few” drinks, nor with an admission to multiple drinks or  drinking hard liquor.  Leon consistently provided the deputy with an explanation for the smell of alcohol that would not have supported an inference of impairment, and there was no evidence to the contrary, such as a statement from another witness or empty bottles or cans.

¶28      While officers need not observe unlawful conduct to support a finding of reasonable suspicion, Waldner, 206 Wis. 2d at 57, officers do need an objectively reasonable inference of wrongful conduct.  State v. Anderson, 155 Wis. 2d 77, 84, 454 N.W.2d 763 (Ct. App. 1990).  Here, there were virtually no indicia of actual impairment.  Without more, an admission of having consumed one beer with an evening meal, together with an odor of unspecified intensity, are not sufficient “building blocks” representing specific and articulable facts supporting reasonable suspicion that Leon had become less able to exercise the clear judgment and steady hand necessary to control his car due to drinking.  See WIS. STAT. § 346.63(1)(a) (does not prohibit operating a motor vehicle after having consumed alcohol, but instead prohibits driving “[u]nder the influence of an intoxicant … to a degree which renders [one] incapable of safely driving.”).  Simply put, the record does not include “facts which, taken together with rational inferences from those facts, reasonably warrant[ed] [the deputy’s] intrusion.”  Terry v. Ohio, 392 U.S. 1, 21 (1968).

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