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County of Jefferson v. Renz12/22/1999
king three beers earlier in the evening. During the one-legged stand test, he was not able to hold his foot up for thirty seconds, and he restarted his count at 10 although he stopped at 18. He appeared unsteady during the heel-to-toe test, left a space between his steps, and stepped off of the imaginary line. He was not able to touch the tip of his nose with his left finger during the finger-to-nose test. On the other hand, his speech was not slurred, and he was able to substantially complete all of the tests.
. The officer was faced with exactly the sort of situation in which a PBT proves extremely useful in determining whether there is probable cause for an OWI arrest. We conclude that the officer had the required degree of probable cause to request the defendant to submit to a PBT.
. In summary, we conclude that the legislature intended "probable cause to believe" in the first sentence of Wis. Stat. § 343.303 to refer to a quantum of proof that is greater than the reasonable suspicion necessary to justify an investigative stop, and greater than the "reason to believe" necessary to request a PBT from a commercial driver, but less than the level of proof required to establish probable cause for arrest. Accordingly, we reverse the decision of the court of appeals and remand the cause to the circuit court for reinstatement of the judgment of conviction.
By the Court. -- The decision of the court of appeals is reversed, and the cause is remanded to the circuit court.
. SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE (concurring). I agree with the majority opinion that if Wis. Stat. § 343.303 (1993-94) is to have meaning in non-commercial motor vehicle cases, the phrase "probable cause to believe" used in that section must mean something different from the same phrase "probable cause to believe" used in § 968.04 to govern the issuance of an arrest warrant. I conclude, in contrast to the standard set forth in the majority opinion, that an officer may request a preliminary breath screening test (PBT) of a driver of a non-commercial motor vehicle under Wis. Stat. § 343.303 when the driver exhibits several indicators of being under the impairment of intoxicants.
. I write for two reasons. First, I do not think the majority opinion sets forth a workable standard to determine what information a police officer must have to request a driver of a non-commercial motor vehicle to submit to a PBT. The standard set forth in the majority opinion is that "probable cause to believe" refers "to a quantum of proof that is greater than the reasonable suspicion necessary to justify an investigative stop, and greater than the `reason to believe' necessary to request a PBT from a driver of a commercial motor vehicle, but less than the level of proof required to establish probable cause for arrest." Majority op. at 25. See also maj. op. at 18, 26-27. This standard does not sufficiently help law enforcement officers or the courts to determine whether a law enforcement officer has sufficient facts to satisfy § 343.303. Indeed the majority opinion does not even attempt to apply this standard to the evidence in the present case. Rather, the majority opinion analyzes the record to determine whether the defendant exhibited several indicators of intoxication in resolving whether the officer had probable cause to request the defendant to submit to a PBT. Majority op. at 26.
. Second, I write to express my concern about this court's evolving jurisprudence that "probable cause to believe" requires varying degrees of evidence depending on the stage of the proceedings. Majority op. at 12, 16, 18. The majority opinion declares that "there is a great degree of difference between the min
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