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Totality of circumstances supported request for PBT

State v. David William Krumm, 2019AP243-CR, District 3, 5/5/20 (one-judge decision; ineligible for publication); case activity (including briefs)

Under § 343.303 and County of Jefferson v. Renz, 231 Wis. 2d 293, 603 N.W.2d 541 (1999), there was probable cause to believe Krumm was operating while intoxicated, so police could request he submit to a preliminary breath test.

¶11     Renz teaches that, here, [Officer] Volz had the required degree of probable cause to request of Krumm that he submit to a PBT. The totality of circumstances illustrates that, notwithstanding Krumm’s “passing” grades on his field sobriety tests, Krumm exhibited several indicators of intoxication, similar to the defendant in Renz, to wit: driving at a rate of 46 mph in a 25 mph zone4 at 2:40 a.m. on a Saturday; smelling strongly of intoxicants; admission to alcohol consumption; confusion over his comings and goings; and inconsistent answers as to when he had last consumed an alcoholic beverage. Volz had probable cause to believe that Krumm had violated or was violating Wisconsin’s OWI laws based upon these indicators, along with Krumm’s performance on the field sobriety tests. Similar to the officer in Renz, Volz “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.” See id.


4 Krumm argues that his driving over 20 mph in excess of the speed limit is actually “de minimus or counterintuitive to evidence of impairment.” He reasons: “Operating a vehicle at a speed in excess of the maximum safe speed posted for a highway requires a person to exercise greater control over the vehicle given the shortened reaction time at higher rates of speed.” While this assertion is a clever spin of the facts, Krumm’s position lacks support from our case law, whereas the contrary position does not. See, e.g., State v. Waldner, 206 Wis. 2d 51, 57-58, 556 N.W.2d 681 (1996); City of West Bend v. Wilkens, 2005 WI App 36, ¶19, 278 Wis. 2d 643, 693 N.W.2d 324.

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