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Claim of ignition interlock didn’t negate probable cause for PBT

State v. Jesse J. Kain, 2018AP951, 10/17/18, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)

Kain appeals his drunk driving conviction, arguing the officer that stopped him lacked the probable cause necessary to ask him to take a preliminary breath test. (See Cty. of Jefferson v. Renz, 231 Wis. 2d 293, 316, 603 N.W.2d 541 (1999).)

It’s not clear why probable cause for the PBT matters at all, for two reasons: first, Kain was arrested not for drunk driving, but because there was a warrant for him, and the subsequent blood draw was also accomplished by warrant. Also, Kain in fact refused to take the PBT, and State v. Repenshek, 2004 WI App 229, ¶25, 277 Wis. 2d 780, 691 N.W.2d 369, says that refusal can support reasonable suspicion (and, presumably, probable cause to arrest). But, neither party cited that case and the court’s analysis proceeds accordingly.

Kain’s problem is that the officer knew he had an ignition interlock order, so his allowable BAC was just .02, and the officer also smelled intoxicants. State v. Goss, 2011 WI 104, ¶2, 338 Wis. 2d 72, 806 N.W.2d 918, says this is enough for a PBT.

Kain tries to get around Goss by noting that, in this case, Kain told the officer that he had an ignition interlock device in his car–thus, had he been drinking, he would not have been able to drive it (as he in fact had been). The court is unpersuaded:

The ignition interlock device is a factor to consider in determining probable cause—it is not a negating factor. In this case, the knowledge of Kain’s prior OWI convictions, see State v. Lange, 2009 WI 49, ¶33, 317 Wis. 2d 383, 766 N.W.2d 551, coupled with the odor of alcohol, Kain’s admission to drinking, and the officer’s knowledge that Kain “could drink only a very small amount before exceeding the legal limit that applied to him,” Goss, 338 Wis. 2d 72, ¶26, led to the officer’s reasonable conclusion that a statutory violation was probable. Further, Kain was not originally arrested for the PAC violation; he was arrested for the active warrant. Mulroy obtained the search warrant for Kain’s blood after he had been taken into custody, meaning he received a judicial seal of approval based on the search warrant approved by the on-duty judge. The circuit court properly denied Kain’s motion to suppress.


{ 3 comments… add one }
  • Fritz Anderson October 18, 2018, 8:52 am

    “Kain’s problem is that the officer knew he had two prior OWIs, meaning his allowable BAC was was just .02” Small correction: the allowable BAC of .02 would have been because of the IID order.

  • Christopher Dyer October 18, 2018, 10:11 am

    The article incorrectly states that “the officer knew [the driver] had two prior OWIs, meaning his allowable BAC was was just .02”. However, the legal limit for an OWI 3rd is still .08. The .02 limit is for drivers with 3 or more priors. This should be corrected.

  • admin October 19, 2018, 10:03 am

    Good catch folks. Just making sure you’re paying attention. Sincere thanks, fixed.

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