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Probable Cause – PBT

State v. Jason E. Goss, 2011 WI 104, affirming court of appeals summary order;  for Goss: Daniel J. Chapman; case activity

¶2   We are asked to determine whether the officer’s request for the PBT breath sample was made in violation of Wis. Stat. § 343.303, which states that an officer “may request” a PBT breath sample “[i]f a law enforcement officer has probable cause to believe that the person is violating or has violated s. 346.63,” which prohibits driving or operating a motor vehicle with a prohibited alcohol concentration.  We agree with Goss that the legislature’s intent was to require probable cause for a request for a PBT breath sample for all non-commercial drivers, including those who are subject to a reduced prohibited alcohol content standard.  This case presents a question we have not previously addressed: whether probable cause exists to request a PBT breath sample when the driver is known to be subject to a .02 PAC standard, the officer knows it would take very little alcohol for the driver to exceed that limit, and the officer smells alcohol on the driver. We now hold that under these circumstances, there is probable cause to request a PBT breath sample.  The PBT breath sample in this case was requested on the basis of probable cause as the statute requires, and we therefore affirm the court of appeals.

¶28  This case presents a question we have not previously addressed: whether probable cause exists to request a PBT breath sample when the driver is known to be subject to a .02 PAC standard, the officer knows it would take very little alcohol for the driver to exceed that limit, and the officer smells alcohol on the driver.  We now hold that under these circumstances, there is probable cause sufficient to request a breath sample.  The PBT breath sample in this case was requested on the basis of probable cause as the statute requires, and we therefore affirm the court of appeals.

Goss argued that § 343.303 requires more than mere detection of alcohol before a PBT may be administered to a non-commercial driver, citing County of Jefferson v. Renz, 231 Wis. 2d 293, 310, 603 N.W.2d 541 (1999). (Probable cause isn’t required for commercial drivers, because alcohol in any amount suffices, ¶12.) Renz held, in the context of a PAC of .10, that “probable cause” was a lesser quantum than “probable cause to arrest.” Goss had 4 priors, so this case arises under a PAC of .02 – in other words, standards involving  very low PAC and quantum of belief. (The officer knew about the priors before requesting the PBT, ¶¶3-4.) Goss was thus constrained by unfavorable facts to argue that the statutory scheme categorically prohibits a PBT of a non-commercial driver based solely on smell of alcohol. The court rejects that approach, holding that priors are to be considered in the determination of PBT probable cause, ¶¶22-24, citing State v. Lange, 2009 WI 49, ¶33, 317 Wis. 2d 383, 766 N.W.2d 551. The smell of alcohol on Goss coupled with the officer’s knowledge of the low PAC ceiling established probable cause, ¶26.

The court drops a footnoted reference to State v. Fischer, 2010 WI 6, ¶32, 322 Wis. 2d 265, 778 N.W.2d 629 – a glancing, but possibly portentous reference, ¶14 n. 11. In that case, the court imposed an absolute bar on adducing expert testimony based on PBT results; but a federal court subsequently held that Fischer’s right to present a defense was violated. The habeas grant was premised on the idea that the testimonial bar was not on account of concerns about unreliable evidence. But the footnote in Goss suggests that evidentiary reliability is indeed the rationale for trial-level exclusion of PBT evidence. Don’t be surprised if the issue is revisited, especially given the advent of Daubert in this state. Besides, it wouldn’t be the first time a Wisconsin court has told a federal court it got something wrong, State v. Dean, 103 Wis.2d 228, 307 N.W.2d 628, 642 (1981) (explaining that McMorris v. Israel, 643 F.2d 458 (7th Cir. 1981), in granting a right to admit favorable polygraph result, “erred” by virtue of “a mistaken interpretation” of Wisconsin caselaw).

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