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Lack of probable cause to administer first PBT didn’t taint subsequent field sobriety tests and second PBT

State v. Derek S. Strasen, 2013AP1523-CR, District 2, 1/22/14; court of appeals decision (1-judge; ineligible for publication); case activity

There was no probable cause to administer an initial PBT to Strasen, who was stopped for speeding, even though he emitted a faint smell of intoxicants, had bloodshot and “glossy” eyes, and said he had been drinking but had his consumed his last drink over 12 hours earlier. (¶¶2, 4). Nonetheless, distinguishing State v. Betow, 226 Wis. 2d 90, 593 N.W.2d 499 (Ct. App. 1999) (officer improperly extended a stop when he decided to perform a dog-sniff search for drugs based solely on a picture of a mushroom on the defendant’s wallet, with no other indicia of intoxication or drug use) (¶8), the court holds that the lack of probable cause for the first PBT (which read 0.212) didn’t preclude the officer from extending his investigation by asking Strasen to perform field sobriety tests and, when he failed the tests (¶3), by administering a second PBT:

¶9        …[A]t this juncture [when the trooper administered the first PBT], the trooper had enough to continue investigating whether Strasen was driving while intoxicated. The fact that the trooper administered the first PBT in order to confirm his suspicions is irrelevant. With or without that result, the trooper was justified in asking Strasen to perform the field [sobriety] tests. And the clues the trooper observed during those tests further confirmed his suspicions, prompting the second PBT. The trooper’s investigation was a seamless process of information gathering based on suspicious factors distinct from the reason for the stop. While the first PBT would not have been admissible in court, and was correctly suppressed by the trial court, there is no law prohibiting an investigating officer from administrating a PBT simply to confirm that he or she is on the right track.[3]

[3]  In fact, the practice of administering a PBT to confirm an officer’s suspicions might logically inure to the driver’s benefit if the result shows that the officer’s suspicions are wrong.

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