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On reconsideration, court of appeals finds PC for PBT

State v. Zachary W. Swan, 2015AP1718-CR, 5/5/16, District 4 (one-judge opinion; ineligible for publication); case activity, including briefs

Swan was convicted of OWI 2nd with a prohibited alcohol content. On appeal he argued that the circuit court should have suppressed the results of a preliminary breath test and other evidence due to the absence of probable cause. The court of appeals initially rejected Swan’s argument on the ground of issue preclusion, but on reconsideration agreed with Swan that issue preclusion “could not apply as a matter of law.” (¶2, ¶13). It now rejects Swan’s argument on the merits and affirms.

Swan was originally charged with a municipal violation, and the municipal court suppressed evidence obtained as a result of the preliminary breath test. The City appealed to the circuit court. While Swan’s suppression motion was pending, he was charged and convicted of a separate OWI. The circuit court denied suppression in the municipal case. Because the City no longer had jurisdiction, it dismissed its charges against Swan, and the State filed this criminal action for OWI 2nd. Swan again moved for suppression, which the circuit court again denied, noting that it had already heard and decided the issue. (¶¶6-9).

Swan renews his suppression argument on appeal, submitting that the officer who stopped him lacked probable cause to administer a PBT. As the court notes, “probable cause” in this context means something “less than the level of proof required to establish probable cause to arrest, but…more than the level of proof required to establish the reasonable suspicion necessary for an investigative stop.” County of Jefferson v. Renz, 231 Wis. 2d 293, 295, 315-16, 603 N.W.2d 541 (1999). The court finds the standard met:

The record reveals the following:

  •  Swan was nineteen years old;
  • A “half empty” bottle of alcohol was on the backseat of the vehicle Swan was driving;
  • Swan’s friend who ran from Officer Bowe had been drinking;
  • Swan appeared to be really nervous; and
  • Officer’s Bowe’s interaction with Swan occurred at 2:36 a.m.

I conclude that here, Officer Bowe’s knowledge that Swan was not permitted to drive with any detectable level of alcohol in his system, see WIS. STAT. § 346.63(2m), combined with the time of night, Officer Bowe’s observation of the partially consumed bottle of alcohol in the vehicle, Swan’s nervousness, and Officer Bowe’s observation that Swan’s friend had been drinking was sufficient to create probable cause to administer a PBT. See, e.g., State v. Babbit, 188 Wis. 2d 349, 359-60, 525 N.W.2d 102 (Ct. App. 1994) (evidence of consciousness of guilt may contribute to establishing probable cause to arrest); Lange, 317 Wis. 2d 383, ¶32 (recognizing bar time is a factor supporting an officer’s suspicion of intoxicated driving and stating that evidence of intoxicant usage is not required). Accordingly, I conclude that Swan’s motion to suppress was properly denied and affirm Swan’s judgment of conviction.

(¶¶16-17).

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