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Search & Seizure: PBT Probable Cause; PBT Evidence: Admissibility without DOT Certification

State v. Christopher J. Felton, 2012 WI App 114 (recommended for publication); case activity

Search & Seizure – PBT – Probable Cause 

Notwithstanding that Felton passed field sobriety tests, probable cause existed to administer a preliminary breath test.

¶8        This section does not require that the officer have probable cause to arrest a driver for drunk driving before giving that driver a preliminary-breath test. County of Jefferson v. Renz, 231 Wis. 2d 293, 295, 315–316, 603 N.W.2d 541, 542, 551–552 (1999).  …  Thus, a preliminary-breath test “may be requested when an officer has a basis to justify an investigative stop but has not established probable cause to justify an arrest.”  State v. Fischer, 2010 WI 6, ¶5, 322 Wis. 2d 265, 273, 778 N.W.2d 629, 633, habeas corpus grantedFischer v. Ozaukee County Circuit Court, 741 F. Supp. 2d 944 (E.D. Wis. 2010) (magistrate judge).[3]  …

¶9        …  The Record reveals the following:

•           Felton’s eyes were glassy and bloodshot.

•           Felton smelled of alcohol.

•           Felton admitted to drinking three beers, two hours before Courtier stopped him.

•           As the trial court found, Courtier saw Felton “staying too long at one stop sign and then completely blowing another.”

•           Courtier knew before he asked Felton to take the preliminary-breath test that Felton had other drunk-driving convictions, and an officer may consider a driver’s prior convictions in determining whether to give a preliminary-breath test.  See State v. Goss, 2011 WI 104, ¶22, 338 Wis. 2d 72, 88–89, 806 N.W.2d 918, 926; see alsoLange, 2009 WI 49, ¶33, 317 Wis. 2d at 397, 766 N.W.2d at 557 (probable cause for arrest).

¶10      That Felton successfully completed all of the properly administered field-sobriety tests does not, as Felton argues, subtract from the common-sense view that Felton may have had a blood-alcohol level that violated Wis. Stat. § 346.63(1) …. Indeed, Courtier would have been fully justified in asking Felton to take a preliminary-breath test without even asking him to perform any field-sobriety tests because they are not needed to establish probable cause to arrest someone for drunk driving, Washburn County v. Smith, 2008 WI 23, ¶33, 308 Wis. 2d 65, 81, 746 N.W.2d 243, 251 …. The totality of the circumstances here fully establish that Sergeant Courtier had “probable cause” under Wis. Stat. § 343.303 to ask Felton to take the preliminary-breath test.  SeeFischer, 2010 WI 6, ¶5, 322 Wis. 2d at 273, 778 N.W.2d at 633 (A preliminary-breath test “may be requested when an officer has a basis to justify an investigative stop but has not established probable cause to justify an arrest.”).

With respect to the habeas grant in Fischer, the court reminds that state courts aren’t bound by decisions of lower federal courts, fn. 3, citing State v. Webster, 114 Wis. 2d 418, 426 n.4, 338 N.W.2d 474, 478 n.4 (1983); State v. Beauchamp, 2010 WI App 42, ¶17, 324 Wis. 2d 162, 177–178, 781 N.W.2d 254, 261, aff’d, 2011 WI 27, 333 Wis. 2d 1, 796 N.W.2d 780. This principle is really an abstraction here, because Fischer dealt with a different problem; it’s worth reciting anyway, given the potential for recurrence.

PBT Evidence – Admissibility without DOT Certification

Results of a PBT are admissible to establish probable cause to arrest without showing that the device has been certified as accurate:

¶12      First, although Felton argues that because the blood-alcohol level revealed by a preliminary-breath test is relevant “to show probable cause for an arrest, if the arrest is challenged,” Wis. Stat. § 343.303, the preliminary-breath test is a “quantitative” test that requires the same or similar assurances of accuracy that is needed before the results of blood-alcohol tests may be received as evidence at trial.  SeeWis. Stat. § 343.305(6) (“(a) Chemical analyses of blood or urine to be considered valid under this section shall have been performed substantially according to methods approved by the laboratory of hygiene and by an individual possessing a valid permit to perform the analyses issued by the department of health services.”  The rest of subsection (6) sets out lengthy criteria that must be met before the analyses may “be considered valid” under § 343.305(6)).  As the trial court noted correctly, though, no statute similarly preconditions the use of the preliminary-breath test when it is used by a law-enforcement officer “for the purpose of deciding whether or not the person shall be arrested for a violation of s. 346.63(1).” § 343.303.  Absent a statute that compels such a result in connection with a blood-alcohol testing device, the proponent need not show compliance with administrative rules, see City of New Berlin v. Wertz, 105 Wis. 2d 670, 671–673, 677, 314 N.W.2d 911, 911–912, 914 (Ct. App. 1981) (“claimed noncompliance with certain provisions of the code goes only to the weight, not to the admissibility, of the breathalyzer test”), even though, as we have seen, Wis. Stat. § 343.303 says that officers giving a preliminary-breath test should use “a device approved by the department for this purpose.”[4]

¶13      Second, preliminary-breath tests “are routinely relied on to establish probable cause for arrest.”  Fischer, 2010 WI 6, ¶¶7, 36, 322 Wis. 2d at 274, 292–293, 778 N.W.2d at 633, 642.  Indeed, as we have seen, this is the legislature’s command, as reified in Wis. Stat. § 343.303, and if the legislature deemed that evidence of approval or certification was a necessary prerequisite to use of the preliminary-breath test it would have so provided.  See Progressive Northern Ins. Co. v. Romanshek, 2005 WI 67, ¶52, 281 Wis. 2d 300, 330, 697 N.W.2d 417, 431 (legislative silence in face of court interpretations).

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