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County of Jefferson v. Renz12/22/1999
not follow from this that "probable cause to believe" must mean "probable cause for arrest." There is a great degree of difference between the minimum of suspicion indicated by the language "reason to believe" and "any presence" of alcohol and the degree of proof required to establish probable cause for arrest. As we have just explained, "probable cause to believe" is not a uniform standard, but varies in degree at different stages of criminal proceedings. In light of this, we are not persuaded that because Wis. Stat. § 343.303 describes a lower standard of proof for PBTs of commercial drivers, "probable cause to believe" must mean "probable cause for arrest." Instead, it appears that the legislature intended "probable cause to believe" to mean something between these two levels of proof, more proof than "any presence" of an intoxicant but less than probable cause for arrest.
. This interpretation of "probable cause to believe" is also consistent with the PBT's place in the process of an OWI investigation. First, an officer may make an investigative stop if the officer "reasonably suspects" that a person has committed or is about to commit a crime, Wis. Stat. 968.24, or reasonably suspects that a person is violating the non-criminal traffic laws, State v. Griffin, 183 Wis. 2d 327, 333-34, 515 N.W.2d 535 (Ct. App. 1994). After stopping the car and contacting the driver, the officer's observations of the driver may cause the officer to suspect the driver of operating the vehicle while intoxicated. If his observations of the driver are not sufficient to establish probable cause for arrest for an OWI violation, the officer may request the driver to perform various field sobriety tests. The driver's performance on these tests may not produce enough evidence to establish probable cause for arrest. The legislature has authorized the use of the PBT to assist an officer in such circumstances. If the person stopped is a commercial driver, the officer may request a PBT upon the detection of "any presence" of an intoxicant or if the officer has "reason to believe" the driver has been operating the vehicle while intoxicated. Wis. Stat. § 343.303. For non-commercial drivers, the officer may request a PBT if there is "probable cause to believe" that the person has been violating the OWI laws. § 343.303. If the driver consents to the PBT, the result can assist the officer in determining whether there is probable cause for the arrest. § 343.303. If under the facts there are reasonable grounds to believe that the person has violated the OWI laws, the officer may arrest the driver under Wis. Stat. § 345.22 or Wis. Stat. § 968.07(1)(d). Finally, to bind the defendant over after a hearing, the authorities will need to show probable cause that is greater than that required for the arrest, but less than the guilt beyond a reasonable doubt that must be proven before conviction. Dunn, 121 Wis. 2d at 396 (citing Berby, 81 Wis. 2d at 683).
. In sum, we find that case law does not compel the conclusion that the legislature must have intended "probable cause to believe" to mean probable cause for an arrest.
. We likewise find nothing in the legislative history that compels the interpretation of the statute that the defendant urges us to adopt. The Wisconsin legislature first authorized a preliminary breath test in 1977 as part of Assembly Bill 1 of the November 1977 Special Session. 1977 A.B. 1; § 7, ch. 193, Laws of 1977. That original PBT statute provided " f a law enforcement officer has probable cause to believe that a person has violated s. 346.63(1) . . . , the officer may request the person, prior to arrest and issuance of a citation, to take a preliminary breath test . . . ." Wis. Stat. § 343.305(2)(a)(1
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