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OWI – probable cause to administer PBT

Dane County v. Steven D. Koehn, 2012AP1718, District 4, 1/10/13

Court of appeals decision (1 judge; ineligible for publication); case activity

Motion to suppress evidence of intoxication properly denied because arresting officer had probable cause to administer a preliminary breath test. The court of appeals rejects Koehn’s claims that the officer’s failure to testify about the significance of the results of field sobriety tests means those results should have “minimal significance” in determining probable cause to administer the PBT:

¶10      I first conclude that, even without the field sobriety test results, the deputy had sufficient probable cause to administer the PBT. The deputy found Koehn asleep in his vehicle in a ditch off the road at 2:30 a.m.  Tracks in the snow indicated that Koehn had driven his vehicle over the center line and into the ditch on the other side of the road.  Koehn smelled of intoxicants and admitted that he had been consuming alcohol….

The court also holds the FST results can be considered despite the lack of testimony about their significance, rejecting Koehn’s reliance on County of Jefferson v. Renz, 222 Wis. 2d 424, 588 N.W.2d 267 (Ct. App. 1998) (Renz I), and instead following County of Jefferson v. Renz, 231 Wis. 2d 293, 603 N.W.2d 541 (1999) (Renz II), which reversed Renz I:

¶16      Consistent with the analysis in Renz II, I conclude that the results of the field sobriety tests here add to probable cause.  In particular, I need no testimony to tell me that stumbling, missing heel-to-toe on some steps, using arms for balance during the walk-and-turn test, and using arms for balance and failing to count properly on the one-leg stand test are indicators of intoxication.

The court explains (¶13) why reversal by Renz II does not rob Renz I of all its precedential value under Blum v. 1st Auto & Casualty Insurance Co., 2010 WI 78, ¶42, 326 Wis. 2d 729, 786 N.W.2d 78. The court of appeals has reached the same conclusion in a previous unpublished decision, Washington County v. Brazee, 2010AP687 (Sept. 8, 2010). Practitioners wanting to read more about “overruling” versus “reversing” should, in addition to the court’s discussion in this case, consult our prior posts about Blum (here) and Brazee (here); cases collected under this category may be found here.

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