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Defense Win: Circuit court erroneously exercised discretion when it denied motion to suppress under independent source doctrine without evidentiary hearing

State v. Timothy J. Petrie, 2024AP2629-CR, 6/11/25, District 2, (1-judge opinion, ineligible for publication); case activity (including briefs)

Petrie argued the officer lacked probable cause to perform a preliminary breath test (PBT), therefore all evidenced gathered afterward must be suppressed. On appeal, he contends that the circuit court improperly applied the independent source doctrine because the state failed to present evidence at the suppression hearing and the court relied on the complaint. COA reverses and remands for an evidentiary hearing on the suppression motion.

The complaint alleged that at 3 a.m., police received a complaint that a car had hit a parked car and fled. The officer found a parked car with substantial damage to the front, “[t]he vehicle’s front tires were on the edge of the curb and the vehicle had its flashers on and was still running.” The driver, Petrie, got out of the car and told the officer he had fallen asleep at the wheel, hit the parked car, and wanted to go home. (¶2). The officer asked Petrie if he would submit to a PBT and he agreed. He then admitted to drinking and being above the legal limit. The PBT showed a BAC of .072. (¶3).

The officer then noticed the smell of alcohol on Petrie and asked him to submit to FSTs. Petrie showed multiple clues of impairment and then refused to complete the remaining tests because “he knows he will fail them.” (¶¶4-5). He told the officer drinking, as well as working many hours and falling asleep behind the wheel, caused him to hit the parked car. (¶5). The officer read Petrie the informing the accused form and he consented to a blood draw, which showed a BAC of .146. (¶6).

Petrie filed a suppression motion, and the state conceded that the PBT was unlawful but argued that the officer had reasonable suspicion to conduct FSTs, which led to probable cause to arrest. (¶7). At the motion hearing, neither party called witnesses, and “[i]nstead, the circuit court engaged in a discussion with the attorneys.” (¶8). During this discussion, defense counsel “concede[d] that there was reasonable suspicion to do the field sobriety tests” but argued that it did not matter because it was all subsequent to the unlawful PBT. (¶8). The court set aside the PBT evidence but denied the suppression motion after making a number of “factual findings . . . based solely on the allegations in the Complaint.” (¶8).

On appeal, Petrie argues:  (1) again, that the undisputedly unlawful PBT required the circuit court to suppress all the OWI evidence following the PBT; and (2) that he had the right to confrontation at the suppression hearing and that the circuit court erred in making findings of fact based solely on the unproven allegations in the complaint. (¶11). COA reverses and remands because the record is insufficient to analyze whether the unlawful PBT requires suppression of all evidence obtained afterward.

Whether the police officer had an independent source to support reasonable suspicion to conduct further tests and/or probable cause to arrest—without the information obtained from the PBT—was never developed below because the police officer did not testify at the suppression hearing. For example, it is unclear if Petrie’s admission about drinking earlier that night was obtained while Kramp was administering the PBT, during the PBT process, or after and independently of the PBT. It is also unclear whether the odor of alcohol Kramp smelled from Petrie’s breath was only obtained because Petrie was blowing into the breathalyzer. If so—in other words, if Kramp had not noticed the odor prior to administering the PBT—then the odor of alcohol cannot be used in analyzing whether Kramp had reasonable suspicion to conduct FSTs absent her having administered the inadmissible PBT.

(¶12).

COA concludes the circuit court was required to hold an evidentiary hearing, and there was no basis upon which the court could factual findings to support its ruling. (¶13). While the court also concludes that the State failed to carry its burden, COA gives the state another opportunity by remanding and directing the circuit court to hold an evidentiary hearing. (¶¶13, 15).

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