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Officer had probable cause to administer PBT

State v. Angelo M. Reynolds, 2016AP420-CR, District 4, 6/22/17 (one-judge decision; ineligible for publication); case activity (including briefs)

Police had sufficient probable cause to request that Reynolds provide a preliminary breath test under § 343.303.

¶14     Deputy Schiro knew that there had been an accident, that Reynolds smelled like alcohol, that he had bloodshot and glossy eyes, that he admitted to drinking four beers, and he observed loud and boisterous behavior from Reynolds. He also knew that Reynolds had been reported to be incoherent by a bystander at the scene. Each of these observations has a potentially innocent explanation and a competing explanation that leads to an inference of impairment due to intoxication. “[A]n officer is not required to draw a reasonable inference that favors innocence when there is also a [competing] reasonable inference that favors probable cause.” State v. Nieves, 2007 WI App 189, ¶14, 304 Wis. 2d 182, 738 N.W.2d 125.

In addition, a comparison of the facts of this case to those in County of Jefferson v. Renz, 231 Wis. 2d 293, 603 N.W.2d 541 (1999), is “striking” (¶13) and further supports the probable cause conclusion. “There might have even been sufficient evidence to amount to probable cause to arrest, or it might have been slightly less than sufficient for that purpose. To resolve such ambiguity is precisely the point of the PBT. As the supreme court noted in County of Jefferson, Deputy Schiro ‘was faced with exactly the sort of situation in which a PBT proves extremely useful in determining whether there is probable cause for an OWI arrest.’ County of Jefferson, 231 Wis. 2d at 317.” (¶15).

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