State v. Christopher M. Repenshek, 2004 WI App 229, PFR filed 12/17/04
For Repenshek: Stephen E. Mays
Issue/Holding: Refusal to submit to a PBT may support a conclusion of reasonable suspicion for a blood draw:
¶25. Key to understanding our analysis is understanding that Wis. Stat. § 343.303 does not contain a general prohibition on police requesting a PBT. Rather, the statute only imposes a limitation on the use of a PBT result in a particular situation, that is, where the requesting officer wants to use the PBTresult to support a drunk driving arrest or to support a non-consent blood draw. For example, do police officers act illegally when they “bust” a teenage drinking party and ask attendees to take PBTs? This is a routine procedure and the results are used to make a preliminary determination about which teens may have been drinking. We can discern no reasonable argument that police are acting illegally because they do not, under § 343.303, have “probable cause” to believe the teens have violated a drunk driving statute.¶26. Accordingly, we conclude that Wis. Stat. § 343.303 does not prohibit the consideration of Repenshek’s refusal to submit to a PBT for purposes of determining whether Repenshek’s blood draw was supported by reasonable suspicion.
The court goes on to find reasonable suspicion, stressing Repenshek’s PBT refusal, along with the facts of the accident itself which suggested negligent operation, ¶¶29-30. In effect, the court’s conclusion is premised on the idea that § 343.303 doesn’t safeguard any right to refuse a PBT, see ¶24; otherwise, allowing a refusal to factor into reasonable suspicion would exact a penalty for an exercise of right. The reference to teenage drinking parties is interesting, if not downright odd, because it’s so far afield from notions of implied consent and the traffic code. Perhpas the analogy shows how willing the court might be to apply this case beyond its factual moorings; there certainly seems to be a good deal of ferment in the area of exigent circumstances, of which warrantless entry to investigate teenage drinking is a species — see, e.g., State v. Shane M. Ferguson, 2001 WI App 102, summary. Note, though, that it’s not just the facts whose bounds the court has slipped, it’s also the statutory language itself which, as the concurrence cogently points out, ¶¶33-34, explicitly conditions the officer’s authority to request a PBT on probable cause (“If a law enforcement officer has probable cause … the officer, prior to arrest, may request …”).