Motor Vehicles — preliminary breath tests

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Wisconsin Court of Appeals

Criminal

Motor Vehicles — preliminary breath tests

It did not violate the Fourth Amendment to administer a preliminary breath test, even though the suspect passed all the field sobriety tests.

“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), any more than innocent behavior automatically negates either probable cause or even the lower reasonable-suspicion standard, see United States v. Sokolow, 490 U.S. 1, 9–10 (1989). 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, and, as we have seen, the probable-cause standard is lower for assessing the validity of giving a preliminary-breath test than it is for an arrest, see Renz, 231 Wis. 2d at 316, 603 N.W.2d at 552. 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. See Fischer, 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.’).”

Affirmed.

Recommended for publication in the official reports.

2011AP2119-CR State v. Felton

Dist. I, Milwaukee County, Sankowitz, J., Fine, J.

Attorneys: For Appellant: Anderegg, Rex, Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Sanders, Michael C., Madison