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COA reverses suppression; trial judge’s dislike of PBT influenced his decision

City of Waukesha v. Brian John Zimmer, 2012AP530-531, 3/23/22, District 2; case activity (including briefs)

The circuit court suppressed the results of Zimmer’s preliminary breath test because Officer Moss demanded, rather than asked, Zimmer to submit to a PBT, contrary to §343.303. It also dismissed Zimmer’s OWI citations. The court of appeals reversed because Moss had probable cause arrest even before he administered the PBT and because the circuit allowed its dislike of the PBT to cloud its judgment.

Officer Moss observed Zimmer drive through 2 lights, miss the entrance to a parking lot, and jump the curb. He stopped Zimmer, saw his bloodshot eyes, heard his slurred speech. Zimmer failed the Horizontal Gaze Nystagmus (HGN) test. but passed 3 verbal tests. Opinion, ¶¶2-4.

Then Officer Moss said to Zimmer: : “What I am going to have you do is wrap your lips around this like a balloon and blow into it like a balloon. Okay?” Zimmer complied and was immediately arrested.

Section 343.303 governing PBTs states that if an officer having probable cause of an OWI, prior to arrest, “may request the person to provide a sample of his or hearth breath for a preliminary breath screening test. . . ” (Emphasis supplied).

The circuit court believed that if Moss had probable cause to arrest Zimmer, he couldn’t require Zimmer to submit to a PBT without a warrant. It held that Moss had no probable cause independent of the PBT result.

Reversing, the court of appeals held: (1) Based on the totality of the circumstances described above (how Zimmer operated his car, is appearance, his failure to the HGN), Moss had probable cause to arrest Zimmer. Opinion, ¶18. (2) The circuit court’s dislike for the PBT and preferred policing style to interfere with its decision. Opinion, ¶18. n.8. (3) §343.303 does not prohibit an officer from requesting a PBT after the officer has probable cause. Opinion, ¶20. 

The court of appeals declined to decide whether an officer must “request,” rather than demand, that a person submit to a PBT. But noted a string of cases holding Wisconsin does not have a “magic words” requirement. Opinion, ¶20 n.10.

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