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County of Jefferson v. Renz12/22/1999
parated the PBT provision, Wis. Stat. § 343.303, from the implied consent test provision, Wis. Stat. § 343.305, and removed any penalty for refusing the PBT. Cf. Wis. Stat. § 343.305(2)(a), (9)(c)(1979-80)(repealed 1981) with Wis. Stat. § 343.303 (1981). The fact that the legislature removed the penalty for refusing to take a PBT is further evidence that the legislature intended the PBT to be a preliminary, investigative test. Moreover, since § 343.305 authorizes chemical tests of drivers upon arrest for OWI violations, § 343.305(2)-(3), the PBT is of little use to law enforcement officers after they have established probable cause for arrest.
. Furthermore, the legislature's explicit statement of the purpose of the 1981 act supports the petitioner's interpretation of the statute. The provision states:
(13) OPERATING A MOTOR VEHICLE UNDER THE INFLUENCE OF INTOXICANT OF CONTROLLED SUBSTANCE
(a) . . .
(b) The legislature intends by passage of this act:
1. To provide maximum safety for all users of the highways of this state.
2. To provide penalties sufficient to deter the operation of motor vehicles by persons who are intoxicated.
3. To deny the privileges of operating motor vehicles to persons who have operated their motor vehicles while intoxicated.
4. To encourage the vigorous prosecution of persons who operate motor vehicles while intoxicated.
5. To promote driver improvement, through appropriate treatment or education or both, of persons who operate motor vehicles while intoxicated.
§ 2051(13)(b), ch. 20, Laws of 1981. These purposes appear to be best served if an officer can request a PBT while investigating whether a driver has violated the OWI laws, before probable cause for arrest has been established. As stated above, the petitioner's interpretation maximizes highway safety, because it makes the PBT an effective tool for law enforcement officers investigating possible OWI violations. It also encourages vigorous prosecution of OWI violations, because it allows PBT results to be used to show the existence of probable cause for an arrest.
. We therefore determine that neither case law nor legislative history compels us to interpret the first sentence of Wis. Stat. § 343.303 in a manner that undermines the meaning of the second and third sentences of the statute. Instead, we conclude that the context, history and purpose of the statute all suggest that "probable cause to believe" refers to a quantum of proof greater than the reasonable suspicion necessary to justify an investigative stop, and greater than the "reason to believe" that is necessary to request a PBT from a commercial driver, but less than the level of proof required to establish probable cause for arrest. Under this construction, the second and third sentences function sensibly. An officer may request a PBT to help determine whether there is probable cause to arrest a driver suspected of OWI, and the PBT result will be admissible to show probable cause for an arrest, if the arrest is challenged. The context, history, and purpose of the statute strongly support this reasonable construction.
IV.
. We now turn to the application of this standard to the facts of the case. We uphold the trial court's findings of fact unless they are clearly erroneous. State v. Richardson, 156 Wis. 2d 128, 137, 456 N.W.2d 830 (1990). Whether those facts satisfy the statutory standard of probable cause is a question of law we review de novo. Id. at 137-38.
. The defendant exhibited several indicators of intoxication. His car smelled strongly of intoxicants. He admitted to drin
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