Probable Cause – Suppression of Evidence

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Jeffrey I. Quitko

Case No.: 2019AP200-CR

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Probable Cause – Suppression of Evidence

Jeffrey Quitko appeals a judgment, entered upon his no-contest plea, convicting him of eighth-offense operating a motor vehicle with a prohibited alcohol concentration (PAC). Quitko contends the circuit court erred in denying his motion to suppress evidence obtained following his traffic stop for a speeding violation because law enforcement: (1) unreasonably expanded the scope of the initial stop in order to conduct a PAC investigation without having reasonable suspicion to do so; and (2) lacked probable cause to request that Quitko submit to a preliminary breath test (PBT).

We agree with Quitko’s latter argument. In State v. Goss, 2011 WI 104, ¶2, 338 Wis. 2d 72, 806 N.W.2d 918, our supreme court held, under facts largely similar to those present in this case, that a law enforcement officer has probable cause to request that a driver submit to a PBT when three conditions are met: (1) the driver is known to be subject to a .02 PAC standard; (2) the officer knows the driver would need to consume very little alcohol to exceed that limit; and (3) and the officer smells alcohol on the driver. Because we conclude the State failed to meet its burden to establish that the second condition was satisfied in this case, we reverse the judgment of conviction and remand with directions that the circuit court grant Quitko’s suppression motion.

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.