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OWI – probable cause to administer PBT

State v. Travis M. Ranta, 2012AP1663, District 4 (1-judge, ineligible for publication); case activity

PBTPolice were called to a campsite where the defendant admitted to drinking with underage individuals.  An hour later, another officer was called to the same site, where he observed the defendant behaving in a “belligerent, uncooperative [and] loud” manner.  A PBT showed the defendant had a .156 BAC, so he was informed that he couldn’t drive his truck out of the campsite.  That ticked him off.  An hour later, the second officer saw the same truck speeding down the road at twice the speed limit.  He stopped the truck, determined that the defendant was driving, and saw that he had blood shot eyes and smelled of alcohol.  The officer administered 3 field sobriety tests, and the defendant passed them, though he did exhibit 3 clues of intoxication.  So the officer administered a 2nd PBT, which showed a BAC of .11, and then arrested the defendant for OWI.

Issue/Holding: Did the arresting officer have probable cause to administer the second PBT?  The answer is “yes.”  ” To determine whether an officer had ‘probable cause to believe,’ we consider the totality of the circumstances known to the officer at the time the PBT was administered, taking into account the officer’s training and experience.  See State v. Kutz, 2003 WI App 205, ¶¶11-12, 267 Wis. 2d 531, 671 N.W.2d 660.” ¶10.  Based on the facts above–plus the fact that the arresting officer had been told the results of the first PBT and knew that alcohol dissipates from a person’s blood stream at a rate of .02 per hour–he had probable cause to administer the second PBT to the defendant.  According to the court, successful completion of field sobriety tests does not preclude a PBT.  The officer must a take a “common sense view of the fact based on a totality of the circumstances.  State v. Felton, 2012 WI APP 114, ¶10.  He appropriately relied on the hearsay results of the 1st PBT.  An expert is not needed to testify about the rate of alcohol dissipation.  The arresting officer’s training and knowledge is sufficient. Kutz, 267 Wis. 2d 531, ¶12.

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