County of Jefferson v. Renz

Plaintiff-Respondent-Peti County Jefferson, tioner,

v. Christopher Defendant-Appellant. D. Renz,

Supreme Court 9, 1999. argument No. 97-3512. Oral September Decided 22, 1999. December (Also 541.) reported in 603 N.W.2d plaintiff-respondent-petitioner For the there were argument by briefs and oral Wambach, David J. dis- attorney. trict defendant-appellant

For the there awas brief Stephen Mays Kelly, Thomas, E. Habermehl & Mays, argument by Stephen S.C., Madison and oral E. Mays. petitioner, WILCOX, JON P. J. The Jeffer County, published

son seeks review of a decision of the appeals, County court of Renz, v. 222 Wis. of Jefferson (Ct. 1998), App. 2d 588 N.W.2d 267 which held that a law enforcement officer must have asking suspected cause for an arrest before a driver driving while intoxicated to submit to a (PBT) breath test under Wis. Stat. 343.303 (1993-94).1 appeals judg The court of reversed the against Christopher ment of conviction defendant, (OWI) driving Renz, while intoxicated awith prohibited (PAC), alcohol concentration which was County, Judge entered in the circuit court for Jefferson John M. Ullsvik. appeal

¶ 2. The sole issue on is a whether law required enforcement officer to have asking suspect for arrest before to submit to a PBT. legislature We conclude that require did not intend to an officer to have cause to arrest requesting before a PBT. We therefore reverse the noted, Unless otherwise all references to the Wisconsin Statutes refer to the 1993-94 version. appeals cause to the circuit and remand the

court of judgment of conviction. for reinstatement court I—I agree parties facts in this case ¶ that the 3. The February 12,1996, a.m. on At about 2:00 are as follows. County Drayna Deputy of the Jefferson David Sheriff duty patrol Department officer. As on as was Sheriffs Chevy Highway 106, a Camaro west on he traveled by heading passed east. Conclud- a loud exhaust with ing system law, in violation of the exhaust was that the pulled over. the officer the Camaro approached car, the 4. When the officer presented window, a Wis- rolled down his defendant himself as license and identified consin driver's Christopher he him that Renz. The officer informed stopped exhaust, and the for a defective had been acknowledged leaked and that the exhaust defendant During conversation, the officer this initial was loud. coming strong from inside odor of intoxicants smelled the Camaro.2 squad car and ran returned to his officer computer check the defendant and on

a standard nothing yielded interest, and the check Camaro. The side window. The officer returned to the driver's strong again He asked odor of intoxicants. smelled inquired step of the car and the defendant out drinking. replied The defendant he had been whether and had drunk a bartender at a tavern that he was evening. in the The officer asked three beers earlier 2 addition, report that the the officer noted in his offense In Although eyes glassy. were bloodshot and defendant's dismiss, the report to his motion to defendant annexed this hearing, at the motion before did not address this fact parties appeals, this court. the court of or before sobriety defendant tests, submit to field and he agreed. Drayna training 6. Officer had received on during years detection,

OWI and his six with the Jef- County Department ferson Sheriff s he had made over training part 200 OWI arrests. His was based in on a sobriety developed by field Highway test manual the National Safety

Traffic Administration and the U.S. (DOT). Department Transportation ¶ 7. The first test he administered was the alphabet test. The defendant was able to recite the alphabet correctly. during At no time the test or throughout their conversations did the officer observe speech the defendant's to be slurred. one-legged

¶ 8. The next test was the stand. The officer instructed the defendant to stand with his feet together directly and his arms down at his sides. The leg directly defendant was then asked to raise one out ground in front of him about six inches off the watching count from 1001 to 1030 while his foot. At put again, 1018, he down, his foot it raised complete restarted his count from 1010. He was able to putting the count from 1010 to 1030 without his foot again. down The DOT manual lists four standard clues of intoxication to watch test; for on this the defendant only putting clue, exhibited one the foot down. walking 9. The third test was the heel-to-toe

test. The officer instructed the defendant to walk nine steps imaginary on line, toe, heel to with his arms directly down at sides, his then turn back and walk steps. another nine The defendant left a half inch to an space inch of between his heel and toe on all steps. way stepped On back, his the defendant off the imaginary step line on seven. He then restarted and completed eight possible the test. The manual lists test; this the defendant

clues of intoxication for exhib- leaving stepping these, line, off of ited two of the steps. a half The than inch between officer also more swayed right from left to defendant observed swaying performing test, but because not while manual, the clues in the the officer did not one of calculating the for this in standardized test. account did, however, it to an indicator He consider intoxication. finger-to-nose

¶ The 10. fourth test was test. manual, not the officer had This test was from but training through it in his recruit class and learned department. He the sheriff s instructed the defendant together, sides, his to his to stand with feet arms out fingers supposed He was then to tilt with extended. his eyes, tip back, nose, head close his and touch the of his right finger, with his his left. first index then with The right tip defendant touched the of his nose with his finger, upper bridge index but touched the of his nose his left. with The fifth test was another standardized (HGN) nystagmus gaze test,

test, the horizontal which perform twenty-four was the officer certified to after training. requires subject The test hours stand together her with his or feet arms down and follow eyes tip pen of a her the officer with his or as moves pen specially from one side to other. The six intoxication, trained watches for "clues" of relating particular jerkiness eyes. kind defendant all six on The exhibited clues. Based his training, the officer indicated a blood believed this level of at .10. alcohol least administering tests, 12. After the officer these the defendant he a PBT.

asked if would submit to The agreed. PBT defendant The indicated his blood alcohol placed level was .18.3 officer then the defendant County under arrest for OWI in violation Jefferson 346.63(l)(a). adopting 83.16,4 ordinance Stat. In performed, addition, blood after tests had been the county's defendant was cited with of violation the ordi- adopting nance the statute, PAC Wis. Stat. 346.63(l)(b).5 § Through attorney,

¶ 13. his the defendant filed objecting various motions the arrest to the evi- to against including suppress him, dence a motion to evidence because of an unlawful arrest. detention and argued motion, In that he that the lacked the officer requisite probable request a PBT under Wis. § Stat. 343.3036 and that the PBT result therefore "prohibited An level alcohol of .1 or is a alcohol con more 340.01(46m). Stat. centration." Wis. County

4The provides: relevant Jefferson ordinance statutory provisions Chapters [T]he 340 to 348. . .ofthe Wiscon- describing defining regulations respect sin Statutes with traffic,.. adopted.... hereby Any vehicles and are amend- future ments, incorporated or revisions modifications statutes part herein are intended to of be made this code.... County, Wis., 83-16, (January Jefferson No. Ordinance 1§ 1984). 346.63(1) provides:

5§ person may operate No drive or a motor vehicle while: (a) Under the influence of an intoxicant..or (b) person prohibited has a alcohol concentration. provides part: Wis. Stat. 343.303 relevant probable If a officer that law enforcement has cause to believe the 346.63(1).

person. officer, arrest, prior . .has violated s. . .the anto may request person sample provide the ofhis or her breath for using by preliminary screening approved breath the test device department purpose. this of for The result this breath screening be test used the law enforcement officer for the in the determination of not considered could At the cause for the arrest. whether there was Judge objection hearing an motion Ullsvik sustained testimony regarding the the test on the officer's HGN testimony grounds not admissible without that the was validity testimony establishing independent expert the judge Nonetheless, held officer the test. that the of request requisite amount cause to had explained PBT. the definition of He liberty interests cause" varies in relation to governmental stages interac- involved the various judge tion with the accused. The concluded purpose officer had continuing sufficient investigation by requesting PBT. concluding appeals reversed, The court legislature must have that the intended that person probable arrest for of the cause to violation requesting PBT, relevant and that before laws before administering probable PBT, the the officer lacked cause to the defendant. arrest

IL petitioner ¶ 15. We now consider the Jefferson County's probable argument that of cause the level required may request under before an officer a PBT proof is a than Wis. Stat. 343.303 lesser amount of probable interpreta- for arrest. The case turns on cause § 343.303, of the of which that tion first sentence states "[i]f to a law enforcement officer has cause deciding person purpose or not shall be of whether require request . or not tests arrested. .and whether to or chemical 343.305(3). result of as authorized under s. The screening any. .proceeding test shall not admissible in . breath arrest, except to if the arrest is chal- show lenged, properly required prove or to that a chemical test was or 343.305(3). requested.. .under s.

300 person violating that the or believe has violated s. 346.63(1). prior officer, arrest, . to an request person provide a PBT.7 to appeals legisla-

¶ 16. The court of held that the language require ture intended this to an officer to requesting have arrest before PBT. holding Renz, 222 Wis. 2d at 443. The court based this part clearly on its conclusion that case law so defines "probable "probable cause" in context to mean this legislature arrest," cause to that would have indi- apply. cated if it intended other some standard to Id. history legislative sup- The ports also court concluded that interpretation. this Id. petitioner argues interpreta-

¶ 17. The that this contrary legislature tion is intent to the of cannot with be reconciled the rest of Stat. support argument, petitioner In 343.303. of this interpretation provisions insists under this other points of the statute do make case not sense and law establishing cause" refers to different degrees proof stages proceedings. at different Statutory interpretation question

¶ 18. is a Setagord, law that we review de novo. State v. 211 Wis. (1997); City 2d 397, 405-06, 506 Lake Corp. City Mequon, 155, 162, v. 207 Wis. 2d objective statutory interpre N.W.2d give tation is discern effect the intent of the legislature. City, so, Lake Wis. 2d 162. To do we plain language look first to of the statute. Id. When statutory language clearly unambiguously and sets legislative may beyond intent, forth the we not look 7 only While this case involves violations Stat. of Wis. 346.63(1), applies Wis. to suspected Stat. 343.303 violations § 346.63(1), 346.63(2m), 346.63(6), 346.63(2), of Wis. Stat. §§ 940.25, or 940.09. meaning.

language its Id. at 163. How- to determine statutory ambiguous language unclear, is ever, if or may history, scope, context, the statute's we examine subject objective in efforts ascertain matter, and our legislative intent. Id. principles

¶ mind, examine 19. With these we language of Wis. Stat. 343.303. A statute is being ambiguous capable it when is understood in by reasonably well- two or- more different senses persons. Setagord, 406; 2d State informed 211 Wis. at 262, 267, 128 Lucas, ex rel. Neelen v. Wis. 2d provision in this case is the issue language requiring first in the sentence the statute "probable cause to law enforcement officer have person has believe" that a violated law before requesting appeals noted, a PBT. the court As this reasonably sentence could be understood in different Renz, 222 2d at senses. 439. upon reading First, the first sentence of person § 343.303,

Wis. Stat. could con- reasonable "probable "probable clude cause to believe" means that commonly arrest," for case because law defines proof as cause for an arrest would lead a police person proba- officer to that a reasonable believe bly committed a See id. crime. interpre- petitioner's time, 21. At the same

tation, cause to means believe" something arrest, is less than also especially reasonable, when the first sentence read together Ambiguity the next two sentences. with statutory provision itself, arise from the words or provi- from their interaction with relation other Sweat, of the statute other statutes. State v. sions 409, 416, 208 Wis. 2d 561 N.W.2d 695 The first provides § sentence of Stat. 343.303 that an officer may request PBT a when the officer has cause against to believe" the driver has violated the laws provides

OWI.8 second sentence that an help officer use the PBT result determine whether to arrest a driver.9 The third sentence then provides only pro that the PBT is result admissible ceedings to establish cause for an arrest or proper grounds requiring subsequent a chemical test.10

8The first of sentence 343.303 reads in full: § If a law enforcement officer that the has to believe 346.63(1) (2m)' person violating is or has s. or a violated or local 346.63(2) (6) conformity therewith, ordinance in or s. or or 940.25 vehicle, or s. 940.09 where offense involved the use a or if the of any alcohol, presence officer a detects controlled or substance thereof, drug, person driving operat- other a combination on a or or ing duty respect or a on time with to commercial vehicle or motor person violating has reason to believe that the is or violated s. has 346.63(7) conformity therewith, officer, or a ordinance in local prior arrest, may request sample person provide to an a ofhis preliminary screening using or her breath for breath test device approved by department purpose. for this 9The second sentence of 343.303 reads: preliminary screening -may The result ofthis breath test be used purpose deciding law enforcement for the whether or 346.63(1), (2m), person not the be arrested shall for violation of s. (5) (7) therewith, conformity or or a local ordinance in s.or 346.63 (2) 940.09(1) (6), require or or 940.25 and whether or not or 343.305(3). request tests as under chemical authorized s. 10The third sentence 343.303 reads: screening The result of the breath test not shall any proceeding except action or admissible in to show arrest, challenged, prove cause for an if the arrest that a is or to properly required requested person chemical or test was of a under 343.305(3). s. provi- Thus, the overall scheme these PBT officers to use the as a tool sions to allow suspect arrest a to establish determine whether to probable existed, if arrest is that cause for an arrest challenged. most if the This scheme makes the sense establishing probable may request PBT a before help arrest, there determine whether cause for an easily grounds A are for arrest. reader therefore could "probable cause mean conclude that to believe" must something probable than cause for arrest. less interpretation

¶ 23. This is also reasonable that because it is well established in our case law "probable degree cause" does not refer to a uniform degree stages proof, in but instead varies at different proceedings. example, probable cause the required For prob a less than the

for issuance of warrant is a trial able cause needed to bind defendant over for preliminary hearing. Knoblock, a 44 Wis. after State v. (1969); Berby, 130, 81 134, 2d 170 N.W.2d 781 State v. (1977); 677, 683, Wis. 2d State v. 798 Dunn, 389, 396, 121 Wis. 2d 359 N.W.2d 151 Taylor 173, v. State, See also 55 Wis. 2d hearing (1972)(noting N.W.2d 805 that a requires preliminary proba more evidence than other determinations) Wille, ble and State v. 185 Wis. cause (Ct. App. 1994)(holding 673, 682, 2d 518 N.W.2d proof that level of needed to establish hearing on the revocation of driver's license is less than that cause at a needed establish suppression hearing). It is therefore reasonable to interpret cause to believe" the first sen degree tence Wis. Stat. 343.303 to mean lesser required justify than arrest. subject ¶ 24. Because statute is to these con- flicting, interpretations, ambiguous. reasonable it is history, must the context, We therefore purpose examine and legisla- determi ne of the statute order to tive intent.

HHI—II—I ¶ 25. We first closer make a examination of the statutory language construing in its context. In interpretations yield statute, we must avoid City, absurd or unreasonable results. Lake 207 Wis. 2d attempt give every at 162. must Courts also effect to any portion statute, word of a so as not to render superfluous. statute rel. State ex Reimann v. Circuit County, 605, 619, Court Dane 214 Wis. 2d for (1997); City, N.W.2d 385 Lake 207 Wis. 2d at 162. The reading petitioner argues that, the sentence in first context with the rest appeals' statute, of the the court of

interpretation creates unreasonable results § third of renders the sentence Wis. Stat. 343.303 superfluous. petitioner persuasively argues

¶ 26. The that the interpretation urges adopt the defendant us to would severely application the restrict second sentence § above, of Wis. Stat. 343.303. As noted second sen- the provides may that an tence officer use the PBT result to help suspect decide whether to arrest a for OWI. provision presume § 343.303. This seems to that an request during pro- officer will be able to the PBT the determining probable of cess whether cause for arrest only probable exists, rather than for after cause arrest probable has been for established. After cause arrest really purpose exists, the PBT is not needed "for the deciding person not the shall be arrested." whether or interpretation of first sen- Thus, the the defendant's unreasonably the commonsense seems to restrict tence meaning of the second sentence. argues that under this inter- 27. The defendant

pretation still sentence makes sense the second already probable has cause for an officer who because actually request a PBT an arrest arresting decide to before may occasionally suspect. Although this the unlikely. practical If true, matter, as a it seems the be already probable must have established PBT, arrest the the officer will save time for an without arresting suspect and administer- and resources ing implied upon consent test authorized arrest 343.305(2) (3). reality, In Wis. Stat. the effect under — interpretation this would to restrict the useful- in a manner that conflicts with ness of PBT meaning of the second sentence. commonsense interpretation worse, of the first Even this part in effect writes third sentence out sentence provides part the statute. The third sentence in that proceedings the PBT result will be admissible cause existed for an arrest. establish Yet, inter- Stat. 343.303. under defendant's pretation, the PBT result cannot be admitted until already estab- after arrest has been point, At PBT lished. evidence would be unnecessary cumulative and establish would, PBT Thus, cause for the arrest. result probable fact, not be to that was admissible show there part cause for the arrest. This result renders meaningless. third sentence interpretation, Thus, 29. under the defendant's only request already a PBT after hav- an officer could ing probable arrest, established cause for an even though explicitly provides the statute that the officer may determining use the PBT result whether to presenting Furthermore, make an arrest. before evi- challenge probable PBT dence of the result to rebut a to petitioner arrest, cause for an OWI would have to prove that arrest existed before the though clearly administered, PBT even was the statute states that PBT result will "to be admissible show arrest, cause for an if the arrest chal- lenged." Wis. Stat. 343.303. principles statutory

¶ 30. Basic construction interpretation disfavor an first sentence that yields appeals such unreasonable results. court of acknowledged that its construction "limits the condi requested tions under which a PBT undercuts the use of a PBT to establish arrest," Renz, 2d at but determined circularity necessary "[t]his perhaps that is a but unsatisfactory legislature may result" that wish to consider. Id. at 447 n.22. The that court concluded its only one, construction was nonetheless the reasonable "probable id. at 447, because it believed cause" clearly this was context defined in case law to mean "probable legislative cause to arrest" and that his tory interpretation, supported this id. at 443. agree legisla- We do not that case law and history compel

tive this construction of Wis. Stat. Instead, 343.303. we conclude that our case law establishes cause to believe" has differ- meanings stages ent at different of criminal legislative proceedings. history Furthermore, legislature shows that the intended allow an officer request screening establishing PBTa as a test before probable cause for an arrest. OWI unvarying stan 32. Probable cause is not an stages the "each decision at the various of

dard because proceedings independent with the is an determination varying proof." 44 2d Knoblock, Wis. at 134. burdens of probable proof establish Thus, the level of needed to is than that needed to bind cause for an arrest less trial after a examina defendant over for Taylor, Knoblock, 134; Wis. 2d at 44 Wis. 2d at tion. In 109 Wis. 2d of T.R.B., 173. See also the Interest (1982)(explaining the 188-89, 325 that requisite degree probable of cause varies with the dif probable cause determination at ferent function stages proceedings) Dunn, State v. different of proba (discussing 2d at the function of the 396-98 preliminary hearing cause at a as ble determination stages compared proceedings). Simi other probable larly, proof establish level of needed to hearing at a of a driver's cause on revocation license than that needed to establish cause at less suppression hearing. Wille, 2d State v. 185 Wis. at 682. despite nearly true that 33. This is the fact "probable language, identical to believe" that a cause person law, has violated describes the stages proceedings. inquiry at cause different Cf. 343.305(9)(a) (providing § that Wis. Stat. hearing, at refusal "whether had the issue is the officer person" violating believe the was OWI laws) (providing an with Wis. Stat. 968.04 that arrest "probable warrant issue when there is cause to been believe that offense has committed and it") has committed and Wis. Stat. accused 970.03(1) prelimi- (providing purpose of a nary examination is to determine whether there is "probable felony has committed cause to believe a been defendant"). language, Thus, the same proof believe," indicates different levels stages proceedings. different It is therefore reasona- legislature ble to conclude that intended the language "probable to in cause believe" the first sen- proof § tence of Wis. Stat. 343.303 to mean a level of appropriate stage proceedings to that and less required probable that than to establish cause for arrest. by persuaded reasons, 34. For these we are not argument legislature

the defendant's that because the proof requirement a created lower for PBT tests of com- "probable § 343.303, mercial under drivers Wis. Stat. "probable to cause believe" must mean for cause regard drivers, With arrest." to commercial an officer may request "any upon pres- a PBT the detection of of ence" an intoxicant or if the officer has "reason operating that believe" the driver is a vehicle while legislature Thus, intoxicated. 343.303. authorizes police request a officers to commercial driver to submit suspicion. to a PBT with a minimum of "probable ¶ 35. It does not follow from this that "probable cause believe" must mean cause for great degree arrest." There is a of difference between suspicion language minimum of indicated "any presence" "reason to believe" and of alcohol and degree proof required to establish cause just explained, "probable for arrest. As have we cause standard, to believe" is not a uniform but varies degree stages proceedings. In different of criminal light persuaded this, are that we not because Wis. proof Stat. 343.303 a lower standard of describes "probable drivers, PBTs of commercial cause believe" "probable Instead, must mean it cause for arrest." appears legislature "probable that the intended something to believe" to two mean between these levels "any presence" proof proof, of an intoxi- more than for arrest. cant but less than interpretation cause to 36. This place in the believe" process also consistent with the PBT's is may investigation. First, an officer of an OWI "reasonably investigative stop if the officer make suspects" person has committed or is about reasonably crime, 968.24,11 sus commit Wis. Stat. or pects person violating the non-criminal traffic laws, 327, 333-34, v. Wis. 2d Griffin, State (Ct. 1994). stopping App. After the car and N.W.2d 535 contacting driver, of the the officer's observations suspect officer to the driver of driver cause the operating the vehicle while intoxicated. If observa his are not sufficient to establish tions driver violation, the cause for arrest for an OWI may request perform to field officer the driver various sobriety performance driver's tests tests. The on these produce enough probable may not evidence to establish legislature cause for arrest. The has authorized the use an in If of the PBT to assist officer such circumstances. person stopped driver, a the the is commercial officer may request upon "any pres a PBT the detection of ence" of an intoxicant or if the officer has "reason operating believe" the driver has been the vehicle while 11 suspi the Wisconsin Stat. 968.24 codifies "reasonable § by Supreme the Court cion" standard articulated United States (1968) 1, 22 Terry Ohio, adopted in v. 392 U.S. this court 294, Chambers, v. 2d State 55 Wis. 198 N.W.2d 377 (1972). Waldner, 51, 55, 556 See v. 206 Wis. 681 State 2d police may in Terry and Chambers hold that "a officer temporarily stop an appropriate circumstances individual when, possesses specific he or stop, at the time of the she belief that articulable facts which would warrant reasonable activity afoot."Id. criminal was § intoxicated. Wis. Stat. 343.303. For non-commercial may request "prob officer if drivers, the a PBT there is person able cause to believe" that the been has violating § If the OWI laws. 343.303. driver con PBT, sents to the result can assist the determining whether there is cause for the § 343.303. If arrest. under the facts there are reasona grounds person ble believe has violated the may laws, OWI the officer arrest the driver under 968.07(l)(d).13 Finally, § § Stat. 345.2212 or Wis. Stat. hearing, over bind the defendant after a the authori greater ties will need to show cause that is required guilt arrest, than that beyond for but less than the proven a reasonable doubt that must be before (citing Derby, Dunn, conviction. 121 Wis. 2d at 396 683). Wis. 2d at In sum, find that law we case does not com-

pel legislature the conclusion that must have intended cause to believe" to mean for arrest.14 provides may person "[a] Wisconsin Stat. 345.22 regula arrested without warrant the violation of a traffic tion if traffic grounds officer has reasonable to believe that person violating regulation." has or violated a traffic 968.07(l)(d) provides

13Wisconsin Stat. that an officer person grounds "[t]here arrest when are reasonable person is committing believe that or has committed a crime." challenge, defendant also raises a constitutional arguing California, that under Schmerber v. 384 757 U.S. (1966) 614, County Proegler, and Milwaukee v. 95 Wis. 2d 291 of (Ct. 1980), App. the PBT a search 608 is warrantless may only and and seizure incident to a lawful conducted However, arrest or with cause for is an arrest. consent exception established warrant 13, 18, requirements. Douglas, 2d State v. 123 Wis. 365 N.W.2d 311 legislative nothing ¶ find in the 38. We likewise interpretation history compels of statute adopt. urges The us to Wisconsin that the defendant legislature preliminary test in first authorized breath Assembly part Bill 1 the 1977 of November as Special §1; 7, 193, ch. Laws 1977. Session. 1977 A.B. provided "[i]f original law PBT statute enforce- That person cause to believe that a ment officer has 346.63(1)..., may request the has the officer violated s. person, prior citation, to to arrest and issuance of a preliminary . ." Wis. Stat. take a breath test. . 1981). 343.305(2)(a)(1977-78)(repealed § subjected test 39. Refusal to take this revocation, to license unless the driver con- driver post-arrest sented to chemical test. Wis. Stat. 1981). 343.305(2)(a), (9)(c)(1977-78)(repealed § (LRB) Legislative analysis of the Reference Bureau's request per- it bill indicated that authorized officers "to driving suspected sons under influence of preliminary intoxicant submit to a breath test." A.B. 1. budget legis- part 1981, bill, In as that,

lature amendments to the OWI laws enacted changes, among other removed the PBT from Wis. Stat. §§ 343.305 and created Wis. Stat. 343.303. 1568b 20, first d, ch. Laws of 1981. Senator Adelman substantially changes in Bill introduced similar Senate LRB which was never enacted. 1981 S.B. 310. The part: analysis stated, Senate Bill 310 relevant BREATH TEST PRELIMINARY proposal present option This retains the for law to use a breath enforcement officers Since the defendant this case consented to submit PBT, we need not reach this issue. potential out test to screen violators. The results any will still inadmissible in related O.W.I.or give case, officer but the need not a written noticeto person regarding pen- the the test. There will nobe refusing alty preliminary for to take a test. breath (emphasis original). 1981 S.B. 310 ¶ Thus, 41. both and the 1981 LRB analyses legislature indicate that intended the preliminary screening PBT tool, to as a function to be investigation during person used an officer of a sus- pected of an OWI violation. language legislature

¶ Likewise, 42. that the chose to the test describe confirms that it intended the screening prior PBT to as a tool function to be used to legislature arrest. The entitled Wis. Stat. 343.303 "Preliminary screening test," text breath and the "preliminary statute also describes the screening as a test breath "preliminary" "[p]rior test." word means preparing matter, action, to or for business; the main or introductory prefatory." Heritage or The American Dic (3d 1992). tionary English Language ed. "preliminary," Thus, when test it described the as legislature clearly indicated that it the test intended to preparation something be a else. It seems obvious something else—the main matter —is arrest itself. PBT 43. The will not function as a

screening request if an PBT tool officer cannot until already after cause for the arrest has been language analyses LRB established. The and the the,test legislature strongly chose describe therefore suggest legislature that the intended to authorize request establishing a PBT before cause for arrest. drafting process during It is true that Drafting believe," LRB Record "reason 1 to 310, Draft of Senate Substitute Amendment

S.B. (LRBs0150/l), "reasonably S.B. 310 sus pects," Drafting LRB Record to S.A. 125 to 1981 A.B. (LRBbl636/l), proposed as for 66, "probable were substitutes However, to this fact does not

cause believe." legislature persuade us that the must have intended "probable "probable to for cause to believe" mean explained, "probable we cause to arrest." As have proof degrees of believe" refers to different different proceedings. stages It is of therefore reasonable to con cause, legislature clude the intended proof greater to mean a than the rea believe" level necessary justify suspicion investigative sonable stop required than that but less establish for arrest. 45. We also note the 1981 amendments separated against driving laws while intoxicated the provision, § 343.303, PBT the Wis. Stat. from provision, implied § 343.305, Wis. consent test Stat. any penalty refusing for PBT. and removed Wis. Cf. 1981) 343.305(2)(a), (9)(c)(1979-80)(repealed § Stat. legis § The fact that the with Stat. 343.303 penalty refusing to take a PBT lature removed legislature further evidence that intended the preliminary, investigative Moreover, PBT to be a test. since 343.305 authorizes chemical tests of drivers 343.305(2)-(3), upon violations, arrest for OWI use PBT is of little they to law enforcement officers after have cause for arrest. established legislature's explicit Furthermore, 46. purpose supports statement of the of the 1981 act petitioner's interpretation provision The statute. states:

(13) OPERATING A MOTOR VEHICLE UNDER THE OF INFLUENCE INTOXICANT OF CON- TROLLED SUBSTANCE

(a) ...

(b) legislature passage this act: intends provide safety 1. maximum To for all users of the highways this state. provide penalties

2. To sufficient to the oper- deter by persons ation of motor vehicles who are intoxicated. deny privileges operating To motor vehi- persons operated

cles to who have their motor vehicles while intoxicated. vigorous prosecution

4. To encourage per- operate sons who motor vehicles while intoxicated. promote improvement, through To driver both, appropriate treatment or education or of per- operate sons who motor vehicles while intoxicated. 2051(13)(b), purposes 20, ch. Laws of 1981. These appear request be best if an officer to served can a PBT investigating while whether a driver has violated probable laws, OWI before cause for been arrest has petitioner's interpre- above, established. As stated highway safety, tation maximizes because it makes PBT an effective tool for law enforcement officers investigating possible OWI It violations. also encour- ages vigorous prosecution violations, of OWI it because PBT to to allows results be used show the existence of probable cause for an arrest.

¶ 47. We therefore determine that neither case legislative history compels interpret law nor us to first Stat. a sentence of Wis. 343.303 in manner that meaning and of the second third undermines that the Instead, sentences of the statute. we conclude history suggest purpose of all context, and the statute quantum to a cause believe" refers necessary suspicion proof greater than the reasonable stop, greater justify investigative and than the necessary request PBT that is "reason believe" driver, a commercial but less than the level from probable proof required to establish cause arrest. construction, the second and third Under this sensibly. request An function sentences help is PBT to determine whether there cause suspected PBT OWI, to arrest a driver result arrest, for an will be admissible to show challenged. history, The context, if is the arrest purpose strongly support of the statute this reasonable construction.

IV. application ¶ 48. We now turn to the of this stan uphold dard to the facts of the case. We the trial court's findings they clearly of fact unless are erroneous. State 128, Richardson, v. Wis. 2d satisfy statutory Whether those facts stan question de dard of oflaw we review Id. novo. at 137 — 38.

¶ 49. The defendant exhibited indicators several strongly of intoxication. His car smelled of intoxicants. drinking in eve- He admitted to ning. During three beers earlier one-legged test, he able stand was not up thirty seconds, he to hold his foot and restarted appeared although stopped He count at 10 he at 18. his unsteady during space test, the heel-to-toe left steps, imaginary stepped of between his off tip of his with line. He was not able to touch the nose finger during finger-to-nose his left On test. speech hand, slurred, other his was not and he was able substantially complete all of the tests. exactly ¶ was 50. faced with the sort proves extremely in PBT situation which a useful determining whether there is cause for an OWI arrest. We conclude that the officer had the required degree request cause to the defen- dant to to PBT.15 submit summary, legisla- In we conclude that the

ture intended cause to believe" in the first quantum sentence of Wis. refer Stat. 343.303 to to a proof greater suspicion is than the reasonable necessary justify greater investigative stop, necessary request than the "reason to believe" a PBT driver, from a commercial but less than the level of proof required to establish cause for arrest. Accordingly, we reverse the decision of the court of appeals and remand the cause to circuit court for judgment reinstatement of the of conviction.

By appeals the Court.—The of the court decision reversed, and the cause is remanded to the circuit court. ABRAHAMSON, 52. SHIRLEY S. CHIEF agree (concurring). majority opin-

JUSTICE I with the (1993-94) ion that meaning if Wis. Stat. 343.303 is to have non-commercial cases, motor vehicle phrase "probable used in believe" that section proba Because we had conclude the officer sufficient results, request ble cause to the PBT even without the HGN test we do not need to reach issue of whether those test results properly were excluded. phrase something mean different from same

must govern "probable § to cause to believe" used in 968.04 conclude, I in con- the issuance of an arrest warrant. majority opinion, set forth in the trast to the standard may request an a breath that officer (PBT) screening a test of driver of a non-commercial under Wis. Stat. 343.303 when the

motor vehicle being several indicators of under the driver exhibits impairment of intoxicants. I First, two not 53. I write for reasons. do think majority opinion a sets forth workable standard to police must

determine what information a have request to a a driver of non-commercial motor vehicle

to a PBT. The standard set forth in the submit to majority opinion "probable cause to believe" quantum proof greater "to than the refers a that is necessary suspicion justify investiga- reasonable to greater stop, than the 'reason to tive necessary believe' request a PBT to from driver of commer- proof vehicle, cial motor but less than the level of required Major- to establish cause arrest." ity maj. op. op. at also 316. See 317. This sufficiently help standard does not law enforcement to officers or the courts determine whether law satisfy officer has sufficient to enforcement facts majority opinion Indeed the not 343.303. does even attempt apply to this standard the evidence in the present majority opinion analyzes Rather, the case. record determine whether defendant exhibited resolving several indicators of intoxication in whether request the officer had the defendant Majority op. to submit to a PBT. at 316-17. my express Second, I write concern about evolving jurisprudence

this court's requires varying degrees to believe" of evidence depending stage proceedings. Majority op. on the majority opinion 308, 309. The declares that great degree "there is a of difference between the mini- suspicion by language mum of indicated the 'reason to 'any presence degree believe' and of alcohol' the of proof required probable to establish cause for arrest." Majority op. at 309. degrees proof required As I it, see the of may,

various life, cause" standards in real be indistinguishable. Although may people planet on the by degrees separation, be connected no than more six of play popular picture as the demonstrate, and motion I degrees separation am not sure what of exist the probable various of sure, manifestations cause. I am degrees any, separation, however, that the of if are spectrum.1 a crammed on narrow supports ¶ 56. Our case law the conclusion demanding quantum proof, probable the most of necessary trial, cause to bind over for is not defendant very demanding magistrate at all. The must determine only any plausible whether under facts the accused probably felony. Dunn, committed a v. 121 Wis. State 389, 397-98, 2d 357 N.W.2d 151 ¶ 57. our Furthermore case law demonstrates varying degrees proof very that the of are fact simi Taylor, 168, 173, 197 lar. In v. State 55 Wis. 2d (1972), preliminary the court noted that "while way hearing require more of evidence than probable other of determinations pretrial [citations proceedings omitted], these are simi they practical lar in that are all concerned with spectrum range 1 A quantity is defined as "a of values of a or quantities." Dictionary Heritage set of related The American of (3rd 1992). English Language ed. probabilities everyday of íife in determin- nontechnical ing the existence of cause." appended diagram ¶ 58. I have to this concur- spectrum of rence to demonstrate the diagram however, not, an exact determinations. degrees varying representation of all the probable cause determi- cause determinations. Some may missing. I Furthermore, unsure of nations am spectrum placement all the determina- on example, majority tions opinion are shown. For quantum proof does not tell us where the comparison quan- required in this fits in case with (see proof note tum of needed to issue a search warrant diagram) quantum proof #5 in the and the needed to (see license note #6 in revoke individual's driver's diagram). interpretation stringent ¶ 59. Because the most trial) (the only requires bindover for "plausible commission of a account of defendant's felony," question this case raises the of the usefulness jurisprudence regarding degrees proof prob- of our able cause. I stated, 60. For the in the reasons concur

mandate. I am authorized state that JUSTICE joins BRADLEY concurrence. ANN WALSH this DIAGRAM Cause Degrees of Probable (see bind Note below) -Probable cause to over for trial #1 approve complaint -Probable cause to issuance of criminal (see Note #2 below) #3 (see below) -Probable issue arrest warrant cause to Note (see below) -Probable cause for warrantless arrest Note #4 -Probable issue (see below) cause to search warrant Note #5 #6 (see below) -Probable cause at driver's license revocation Note hearing THIS CASE: request - Probable cause PBT from driver of a non-commercial motor (see vehicle #7 below) Note - "Any required request believe" reason to a PBT from a driver of a commercial motor #8 vehicle (see below) Note #9 stop suspicion -Reasonable for (see below) Note investigative 321 THE PROBABLE CAUSE DIAGRAM NOTES TO for "A defendant bound over 1. Bind Over. be presented preliminary at the trial when evidence support hearing inference sufficient to reasonable is felony." probably State that the defendant committed (Ct. App. 34, 414 45 Leist, 40, 141 Wis. 2d v. 1987).". hearing .[P]robable cause at a . [and the defendant can thus be bound over satisfied plausible trial] there exists a believable or when felony." aof account of the defendant's commission Dunn, 389, 397-98, 121 2d 359 N.W.2d State v. Wis. 970.03(1)(1997-98). (1984); § 151 See Wis. Stat. also plausibility and credibil "The distinction between ity may degree." Dunn, fine; is one the distinction judge A not into 121 2d does delve credibil Wis. ity Vigil State, 133, 144, of a v. 76 Wis. 2d witness. (1977). N.W.2d 378 principles governing preliminary hear

The same felony prosecutions apply ings in also 980.04(2) hearings pursuant § held to Wis. Stat. (1995-96) a sexu determine whether defendant is ally person. Watson, violent State v. 227 Wis. 2d 201-05, 595 N.W.2d preliminary hearing applies standard also hearings regarding involuntary

probable cause mental Chapter Watson, commitment under 51 the statutes. (referring 2d at 201 to Wis. Stat. 51.20(7)(1995-96)). Complaint. 2. Criminal Pursuant to Wis. Stat. (1997-98) judge if a does find 968.03 not has committed or cause to believe that offense been judge it," the accused has committed shall finding complaint. indorse such on the complaint "A must state facts sufficient in them admitting or to reasonable inferences are selves which admitting sufficient in themselves or to reasonable inferences which are sufficient to establish 'probable contemplates term, cause,' cause. . . .The existence of facts and circumstances which would acting man, incite an honest belief in a reasonable charges circumstances, all under that the made are complaint magis A true. is sufficient if a fair-minded reasonably alleged trate could conclude that the facts justify proceedings further criminal and that charges merely capricious." Becker, are not v. State 51 659, 662-63, 188 Wis. 2d N.W.2d 449 sufficiency "The test under Wisconsin law of the complaint adequacy, the hypertechnical is one of 'minimal in a not evaluation,

but in a common sense setting establishing probable forth the essential facts State, 179, 189, cause.'" T.R.B. v. 109 Wis. 2d 325 (1982) (quoting Olson, N.W.2d 329 State v. 75 Wis. 2d (1977)). 575, 580, 250 12 N.W.2d comparative degree In terms, "the required greater for a bindover is than that required support complaint." State, T.R.B. v. 109 Wis. 2d at 188. applied complaint

The standard to a be the same as the standard set forth in notes #3 and #4 Olson, 583; v. 2d at State ex rel. below. State 75 Wis. County, County v. Court Dane 36 Wis. 2d Pflanz (1967); 550, 554-57, 153 State ex rel. White N.W.2d Simpson, 590, 594-95, v. (1965). 28 Wis. 2d 3. Arrest Warrant. Pursuant to Wis. Stat. 968.04 (1997-98), complaint appears if it from the and accom- panying probable cause to affidavits that there is that an offense has been committed and that believe judge issue a war- it, the shall the accused committed for the arrest of the defendant. rant quantum that to arrest refers to

"Probable cause police officer to lead a reasonable evidence which would probably defendant committed a crime. believe that the necessary only the information lead a . . .It is guilt is more than a officer to believe reasonable possibility, it is well established that mere hearsay may part upon predicated in informa belief Paszek, 619, 25, Wis. 2d 184 tion." State v. 50 624 — (1971). 836 N.W.2d comparative terms, "the cause needed In than the to issue a criminal warrant is less to be shown to bind a defen cause needed to be shown over preliminary hearing." after a State v. dant for trial (1969). 130, 134, 170 781 Knoblock, 44 Wis. 2d N.W.2d Berby, 677, 683, 260 also State v. 81 Wis. 2d See (1977). N.W.2d 798 applicable an

The standard arrest warrant as set forth in note #2 above. be the same standard 575, 12 Olson, 583, State 75 Wis. 2d 250 N.W.2d v. (1977); County rel. v. Court Dane State ex Pflanz County, 550, 554-57, 36 Wis. 2d 153 N.W.2d (1967); Simpson, 590, v. 28 Wis. 2d State ex rel. White (1965). 594-95, 137 applicable to an arrest warrant is The standard applicable #4 State the same standard as note below. (1997). 627, 184 Paszek, 619, v. 50 Wis. 2d N.W.2d 836 A enforcement officer 4. Warrantless Arrest. may law person when "there are reasonable arrest grounds person committing is or has to believe com regulation. a traffic mitted a crime" or violated (1997-98) (1997-98) (crimes); § Stat. (traffic violations). 968.07 345.22 being person arrested, Within 48 hours after is brought magistrate to determine before whether there is cause to believe offense was com suspect. Koch, mitted See State v. 2dWis. 684, 698, 499 N.W.2d cert. denied 510 U.S. 880 (1993). comparative suspect terms,

In when a is arrested quantum proof appli warrant, without same is applicable suspect cable as is to a arrested with a Loveday warrant; State, see note #3 above. v. 74 Wis. 503, 523, 2d 247 N.W.2d 116 persuasion suppression "The State's burden of at a arrest] hearing [challenging signifi a warrantless cantly greater persuasion than its at a burden hearing" [license revocation] refusal under note #6 Wille, 673, 682, State v. 2d below. 185 Wis. 517 N.W.2d (Ct. 1994). App. 700 issuing

5. Search Warrant. a Before search warrant magistrate "apprised a must be sufficient facts to an excite honest belief a reasonable mind that the objects sought are linked with the commission of a objects sought crime, and that the will be found in the place Higginbotham, to be searched." State v. 162 Wis. (1991) (internal quotations 978, 989, 2d omitted). A deferential standard of review is Accorded warrant-issuing judge's finding probable to the Higginbotham, cause. 162 Wis. 2d at 989. An affidavit interpreted manner, should in a commonsense not hypertechnical must a manner. The defendant clearly sup establish that the facts are insufficient to finding Higginbotham, port probable a cause. 2d Wis. at 990-92. comparative quantum terms,

In of evidence to required to issue a search warrant is less than that support exami- at the a for trial bindover Higginbotham, 2d at 162 Wis. nation. 989. hearing held At a License Revocation.

6. Driver's under Wis. Stat. driver's license to revoke a 343.305(9X1997-98), the State must show the driver was cause to believe had "The trial an intoxicant. the influence of under plausibility .simply of a must ascertain the court. . police Nordness, 128 Wis. 2d account". State v. officer's 2d Nordness, 128 Wis. 15, 36, 381 N.W.2d 300 proba distinguishes between certainty. a reasonable ble cause to Screening (PBT) Preliminary Test Breath 7. Request: a Non-Commercial Motor Driver of under Stat. cause to believe Vehicle. Probable (1993-94)(requesting a PBT of a driver of 343.303 vehicle) quantum "a motor refers to non-commercial proof necessary suspicion greater than the reasonable below] [note justify investigative stop #9 necessary greater the 'reason to believe' than request of a commercial motor a PBT from driver required below] [note than that #8 but less vehicle above]." [note arrest #3 cause for establish Maj. op. at 317. (PBT) Screening Preliminary Breath Test

Request: Motor Vehicle. Driver of Commercial (1993-94) § 343.303 an officer Pursuant to Wis. Stat. may request motor vehi- that a driver of a commercial any presence a PBT if the officer "detects cle take any person" intoxicants" or "has reason to believe driving prohibiting under the laws while has violated influence intoxicants. Suspicion. stop person

9. Reasonable In order to specific grounds an officer must be able to articulate having suspicion" a "reasonable that the individual is engaged activity. criminal See Wis. Stat. 968.24 (1997-98) maj. op. description at 310 n.11 for a suspicion the reasonable standard. suspicion adopted

The reasonable standard was (1997), Wisconsin, Richards v. 520 U.S. 385 in another Supreme context. In case, the U.S. Court held that police before execute a search warrant without knock ing announcing presence, their the officers must suspicion," have a "reasonable under the circum knocking dangerous stances, that would be or futile or investigation that it would inhibit the effective Richards, crime. 520 U.S. at 394.

Case Details

Case Name: County of Jefferson v. Renz

Court Name: Wisconsin Supreme Court

Date Published: Dec 22, 1999

Citation: 603 N.W.2d 541

Docket Number: 97-3512

Court Abbreviation: Wis.