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Defense win: No probable cause for PBT request

State v. Jeffrey I. Quitko, 2019AP200-CR, District 3, 5/12/20 (not recommended for publication); case activity (including briefs)

Quitko’s motion to suppress evidence obtained following his traffic stop for speeding violation should have been granted because law enforcement lacked probable cause to request that he submit to a preliminary breath test (PBT).

¶2     …. In State v. Goss, 2011 WI 104, ¶2, 338 Wis. 2d 72, 806 N.W.2d 918, our supreme court held, under facts largely similar to those present in this case, that a law enforcement officer has probable cause to request that a driver submit to a PBT when three conditions are met: (1) the driver is known to be subject to a .02 PAC standard; (2) the officer knows the driver would need to consume very little alcohol to exceed that limit; and (3) and the officer smells alcohol on the driver. …[W]e conclude the State failed to meet its burden to establish that the second condition was satisfied in this case….

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¶19     …[Deputy] Salentine testified to having taken “courses in relation to standardized field sobriety tests,” receiving periodic “refreshers,” and conducting upwards of twelve OWI-related arrests. But, as the State tacitly acknowledges, nothing about this testimony concerned Salentine’s knowledge of, or experience with, how much alcohol an individual may consume before exceeding a .02 PAC standard. Because the Goss court held that such knowledge is necessary to satisfy the probable cause standard set forth in Wis. Stat. § 343.303, we conclude that the standard was not met in this case.

The state touts the circuit court’s reasoning that “common sense” tells you consuming only a small amount of alcohol puts someone over .02. (¶11). The court of appeals doesn’t buy it. That is inconsistent with Goss’s subjective standard, for one thing. (¶22). For another, it basically overrides the .02 standard and imposes an absolute sobriety standard for all drivers, not just those with commercial DLs (who can be asked for a PBT under § 343.303 when any alcohol is detected). (¶23). Finally, “such a conclusion oversimplifies the relevant factors that must be considered before even a trained individual can estimate a person’s BAC, primarily what type of alcohol the person consumed and when and under what circumstances they consumed it. See, e.g., State v. Vick, 104 Wis. 2d 678, 683, 312 N.W.2d 489 (1981).” (¶24).

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