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OWI — Probable cause to request preliminary breath test; admissibility of evidence of defendant’s refusal to take the test

State v. Raylene A. Brinkmeier, 2013AP15-CR, District 4, 8/1/13; court of appeals decision (1-judge; ineligible for publication); case activity

The police had probable cause under § 343.303 to request Brinkmeier to submit to a preliminary breath test (PBT):

¶13     Contrary to Brinkmeier’s argument, the evidence supporting probable cause in this appeal does not differ significantly from the evidence in [County of Jefferson v.Renz [231 Wis. 2d 293, 316-17, 603 N.W.2d 541 (1999)] and [State v.Colstad[, 2003 WI App 25, ¶¶23-25, 260 Wis. 2d 406, 659 N.W.2d 394]. Brinkmeier exhibited erratic driving, including making a left turn while the left turn signal was a red, indicating no left turn. Brinkmeier deviated from her lane, smelled strongly of intoxicants, admitted to consuming alcohol, and exhibited a number of clues on the field sobriety tests. In particular, Brinkmeier exhibited four clues on the walk and turn test by failing to maintain the instructional stance, taking an incorrect number of steps, missing heel to toe, and making an improper turn, and she exhibited six clues on the HGN test. Looking at the totality of the circumstances, the officer easily had probable cause to believe that Brinkmeier had been operating her vehicle while under the influence and, thus, the officer lawfully requested the PBT.

As to the admissibility of evidence of Brinkmeier’s refusal to submit to a PBT, the court declines to decide whether, like the result of a PBT, refusal of a PBT is inadmissible under § 343.303. (¶¶14-15). Instead, the court concludes the refusal evidence was proper under the curative admissibility doctrine, State v. Dunlap, 2002 WI 19, ¶32, 250 Wis. 2d 466, 640 N.W.2d 112, because Brinkmeier “opened the door” to the evidence by arguing she fully cooperated with the officer. (¶¶16-21).

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