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County of Walworth v. Aarud12/11/2002
. Jason M. Aarud appeals from a judgment of conviction for driving while intoxicated, first offense. Aarud argues that he was seized without reasonable suspicion or probable cause when he was asked to take a preliminary breath test (PBT) and to perform field sobriety tests. We disagree and affirm the judgment.
FACTS
. At approximately 12:15 a.m. on May 20, 2001, Walworth County Deputy Sheriff Cheryl Schmidt observed a car weaving over the fog line three separate times. Schmidt stopped the car and asked the driver, identified as Aarud, why he was weaving. Aarud said that he was tired and had just gotten off work. Schmidt felt that Aarud sounded "confused" when he tried to explain why he was tired. Schmidt asked Aarud if he had had anything to drink, which Aarud denied. She did not observe any odor of intoxicants on Aarud at that time.
. Schmidt continued talking with Aarud about why he was tired and "still felt uncomfortable with him, with my liability if he drove. I wanted to make sure there would be no liability that way. So ... I asked him to submit" to a PBT. Aarud informed Schmidt that he had some tobacco in his mouth; Schmidt told him to get rid of it and "then rather than taking the P.B.T. at that time we should do field sobriety tests to give the residual mouth alcohol a chance to dissipate." Aarud spit out the tobacco and exited the vehicle. At some point after exiting the vehicle, Aarud admitted having three beers after work.
. Schmidt had Aarud perform some field sobriety tests and based upon his performance on those tests, Schmidt concluded that Aarud was under the influence of an intoxicant and asked him to submit to a PBT, which yielded a result of .16% alcohol concentration. Aarud was then arrested and cited for operating a motor vehicle while intoxicated.
. On October 4, 2001, Aarud filed a motion to suppress the alcohol concentration test results, arguing that at the time Schmidt first asked him to provide a PBT, she did not have probable cause to believe he was operating a motor vehicle while intoxicated; Schmidt had not detected any odor of intoxicants and at the time of the request had not yet administered any field sobriety tests. After a hearing on this matter on December 14, 2001, the trial court denied this motion. After a bench trial on the stipulated facts, Aarud was found guilty. Aarud appeals.
DISCUSSION
. Aarud argues that he was seized without reasonable suspicion or probable cause when he was asked to take a PBT and to perform field sobriety tests. He argues that asking a person to submit to a PBT is effectively an arrest. Aarud cites no authority for this proposition and, in fact, such a proposition is in direct conflict with established law.
. Wisconsin Stat. § 343.303 addresses preliminary breath tests and states, in relevant part:
If a law enforcement officer has probable cause to believe that the person is violating or has violated s. 346.63(1) or (2m) or a local ordinance in conformity therewith ... the officer, prior to an arrest, may request the person to provide a sample of his or her breath for a preliminary breath screening test using a device approved by the department for this purpose. The result of this preliminary breath screening test may be used by the law enforcement officer for the purpose of deciding whether or not the person shall be arrested.
Thus, this statute makes clear that a person is not yet under arrest when asked to take a PBT. This statute simply allows the officer to use the PBT as a tool to determine whether or not to arrest a suspect. County of Jefferson v. Renz, 231 Wis. 2d 293, 304, 603 N.W.2d 541 (1999). If
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