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OWI – Probable Cause, PBT

State v. Ryan Stefan Roberts, 2010AP2899, District 4, 6/30/11

court of appeals decision (1-judge, not for publication); for Roberts: Bruce J. Rosen, Susan C. Blesener; case activity

Request for preliminary breath test supported by probable cause, despite somewhat inconclusive field test results, in view of strong odor of alcohol emitted by Roberts along with his admission of drinking. County of Jefferson v. Renz, 231 Wis. 2d 293, 603 N.W.2d 541 (1999), discussed and applied.

¶21      As for the field sobriety test results, Roberts did not score perfectly or imperfectly; as the trooper testified, his three failures add something, although perhaps not much, to the total picture.  The circuit court did not explicitly address the expert defense testimony about how flashing lights could skew an HGN test, but the testimony of the trooper would support a finding that the lights were not a factor.  The court was free to give the expert testimony whatever weight the court believed it merited.  On balance, all evidence presented to the court regarding the field sobriety test results could be said to have added small data points hinting at impairment.

¶22      However, when the following factors are combined, the totality of the facts support a conclusion that the trooper had reached the gray area of “probable cause to believe,” and therefore was authorized to administer the PBT:  Roberts’ performance in the field sobriety tests (albeit only somewhat poor); the apparent attempt to mask odors in the car; the strong odor of intoxicants coming directly from Roberts; his bloodshot eyes (albeit slight); and his admission of having consumed two whiskey drinks and a beer, most recently within the hour.  These indicia of impairment are sufficient.

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