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Motor Vehicles — prohibited alcohol content — probable cause

By: WISCONSIN LAW JOURNAL STAFF//December 27, 2011//

Motor Vehicles — prohibited alcohol content — probable cause

By: WISCONSIN LAW JOURNAL STAFF//December 27, 2011//

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Wisconsin Supreme Court

Criminal

Motor Vehicles — prohibited alcohol content — probable cause

Probable cause exists to request a PBT breath sample when the driver is known to be subject to a .02 PAC standard, the officer knows it would take very little alcohol for the driver to exceed that limit, and the officer smells alcohol on the driver.

“In this case, both the smell of alcohol on Goss and the officer’s knowledge that Goss could drink only a very small amount before exceeding the legal limit that applied to him make the conclusion that Goss was likely in violation of the statute highly plausible. This holding is fully consistent with our holding in Renz concerning the amount of proof required to request a PBT from a non-commercial driver such as Goss. Renz said the legislature intended to require for such drivers ‘a quantum of proof that is greater’ for probable cause than what is required to request a PBT breath sample from a commercial driver. Id. That standard has been met here. We reiterate what we stated in Renz: that the legislature provided the PBT as a screening tool for officers investigating impaired drivers. Id. at 310.”

“To hold otherwise would hamstring the ability of law enforcement to investigate a suspected violation of the .02 PAC statute. The ordinary investigative tools employed in an investigation of an OWI case with a .08 PAC standard are of little or no use where the PAC standard is one fourth of that level because the ordinary physical indications of intoxication are not typically present in a person with that level of blood alcohol content. The legislature has signaled its intention to make the .02 PAC statute applicable to more drivers, and it is essential that law enforcement have the PBT screening tool provided by the legislature at its disposal in investigating suspected PAC violations such as the one here.”

Affirmed.

2011AP1113-CR State v. Goss

Crooks, J.

Attorneys: For Appellant: Lewis, Julie A., Janesville; For Respondent: Sahar, Nadim, Madison; Meier, James A., Janesville

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