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COA upholds probable cause finding to request PBT

State v. Michael T. Paczkowski, 2021AP340, 9/29/21, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)

Paczkowski crashed his motorcycle, and responding deputies requested that he take a preliminary breath test. He agreed and blew a .149. The circuit court held that he deputies lacked the requisite probable cause to ask for the test, but the court of appeals disagrees and reverses.

Though our state’s courts speak of “probable cause” for a PBT, this is distinct from other, more common uses of the phrase:

The definition of what satisfies probable cause varies depending on the circumstances. County of Jefferson v. Renz, 231 Wis. 2d 293, 317, 603 N.W.2d 541 (1999). Probable cause sufficient to request a PBT requires that an officer has evidence that is greater than reasonable suspicion, but less than the amount of evidence required to make an arrest. State v. Felton, 2012 WI App 114, ¶8, 344 Wis. 2d 483, 824 N.W.2d 871.


The court finds this standard met here:

Under the totality of the circumstances of this case, the deputies had the requisite amount of probable cause to administer the PBT, and the circuit court erred in concluding otherwise. The record reflects that two deputies responded to an accident scene where Paczkowski told multiple people that he had consumed alcohol. One of the deputies smelled the odor of an intoxicant, and both deputies observed bloodshot and/or glossy eyes, speech that was “off,” and an accident where Paczkowski crashed his motorcycle. There was no indication that weather contributed to the accident. In addition, both officers were trained in OWI detection. One of the deputies involved had investigated over 1,000 OWIs in his twenty-seven years of working in law enforcement, and the other officer also had experience with OWIs. In reviewing whether probable cause exists, courts may consider the officer’s training and investigative experience. State v. Wille, 185 Wis. 2d 673, 683, 518 N.W.2d 325 (Ct. App. 1994).

The circuit court did not find either deputy’s testimony to be not credible. Rather, the circuit court seemed to focus instead on its belief that many of the factors the deputies relied on could have an alternate, innocent explanation. It noted that glassy, bloodshot eyes are indicative of intoxication, but there are “other alternative explanations” like “allerg[ies]” or “a medical situation.” It acknowledged that Paczkowski admitted to consuming alcohol but said no one asked when or how much he drank. But, officers are not obligated to rule out innocent explanations when they observe indicia of an intoxicated driver. “‘[I]nnocent’ behavior frequently will provide the basis for a showing of probable cause.’” State v. Tullberg, 2014 WI 134, ¶35, 359 Wis. 2d 421, 857 N.W.2d 120 (citation omitted).


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