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County of Iowa v. Bilse9/30/1999
APPEAL from a judgment of the circuit court for Iowa County: WILLIAM D. DYKE, Judge. Affirmed.
Brock T. Bilse appeals from a judgment convicting him of operating a motor vehicle while under the influence of an intoxicant, contrary to § 346.63(1)(a), Stats. Bilse argues that the trial court erred by not granting his motion to suppress all evidence gathered after his preliminary breath test (PBT). He contends that the PBT was not supported by probable cause because it was administered before the field sobriety tests. We disagree and affirm. Bilse also challenges the constitutionality of a blood test administered pursuant to Wisconsin's implied consent law, § 343.305, Stats. Since Bilse has not shown that he provided notice to the attorney general, as required when challenging the constitutionality of a statute, we do not review the issue.
I. Background
On August 23, 1998, at approximately 2:05 a.m., Iowa County Sheriff's Deputy Lin Gunderson observed a car weaving back and forth in its lane in front of him. Gunderson followed the vehicle and saw it drive onto the shoulder four times. Gunderson pulled the car over and approached it on the passenger side. While talking with the three occupants, Gunderson noticed the odor of intoxicants coming from inside the car. Bilse, the driver, said that he had not been drinking and explained that someone who had been in the car earlier had spilled some beer. Gunderson asked Bilse to get out of the car. When he did so, Bilse swayed back and forth and had difficulty maintaining his balance. Gunderson noted that he was not wearing shoes. Bilse again denied consuming alcohol, but Gunderson observed that Bilse's speech was slurred, his breath smelled of intoxicants, and his eyes were slightly bloodshot and glassy.
At that point, Gunderson administered a PBT. He then asked Bilse to perform several field sobriety tests. After Bilse performed poorly on the sobriety tests, Gunderson placed him under arrest for operating a motor vehicle while intoxicated. Gunderson brought him to the hospital in order to obtain a blood sample. Gunderson read Bilse the "Informing the Accused" statement as required by Wisconsin's implied consent law, § 343.305(4), Stats., and Bilse consented to a blood test. After Bilse's blood was drawn, Gunderson returned him to the Sheriff's department.
Bilse filed pretrial motions to suppress all evidence gathered as a result of his arrest and to suppress the blood sample. Bilse argued that, since the PBT had been administered before the sobriety tests, it was not supported by probable cause and amounted to an unlawful arrest. He also argued that Gunderson could have required Bilse to take a breath test instead of a blood test. The blood test was therefore unreasonably intrusive and violated the Fourth Amendment because it was not necessitated by exigent circumstances. The trial court denied the motions. After a stipulated trial, the court found Bilse guilty of operating a motor vehicle while under the influence of an intoxicant. Bilse appeals his conviction.
II. Analysis
A. Probable Cause for the PBT
Bilse argues that the trial court erred when it determined there was probable cause for Gunderson to administer the PBT. Bilse points out that Gunderson did not administer the sobriety tests until after the PBT, so they cannot be a factor in a probable cause analysis. Without the sobriety tests, Bilse argues, the circumstances would not allow a reasonable officer to conclude that he had been driving while intoxicated.
In order to administer a PBT, a police officer must have probable cause to arrest. See County of Jefferson v. Renz, 222 Wis.2d 424, 443, 5
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