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County of Walworth v. Aarud12/11/2002
the results of the PBT are to help an officer determine whether or not to arrest a suspect, a suspect is logically not under arrest when asked to provide a PBT. An officer must simply have "probable cause to believe" that a person is operating a motor vehicle while intoxicated to request a PBT. We shall assume that Aarud is arguing that Schmidt did not have probable cause to believe he was intoxicated and therefore could not ask him to take a PBT.
. Aarud's entire argument is premised on the fact that Schmidt first requested a PBT prior to the administration of field sobriety tests. Schmidt did first ask Aarud to take a breath test after pulling him over and Aarud consented to this test. However, Schmidt then changed her mind and decided to do field sobriety tests instead. In essence, Schmidt rescinded her request for a PBT and simply asked Aarud to perform field sobriety tests.
. An officer may make an investigate stop if the officer "reasonably suspects" that a person is violating the traffic laws. Id. at 310. After stopping a car and contacting a driver, an officer's observations of the driver may cause the officer to suspect the driver of operating while intoxicated. Id. If the officer's 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. Id. Here, that is exactly what Schmidt did.
. Schmidt had observed Aarud weave and cross the fog line several times and Aarud implicitly admits he did so. Schmidt observed Aarud's confusion in response to questions. After rescinding her request for a PBT, Schmidt then asked Aarud to perform various field sobriety tests. In light of Aarud's confusion and traffic violations on a major roadway at 12:15 a.m., it was appropriate and prudent for Schmidt to ask Aarud to perform field sobriety tests. Aarud does not argue that there was insufficient evidence to ask him to perform field sobriety tests and implicitly admits that said request was appropriate. As Aarud concedes in his brief, field sobriety tests are simply a part of a traffic stop and are allowed to occur on less than probable cause. See State v. Swanson, 164 Wis. 2d 437, 444, 475 N.W.2d 148 (1991) (a person is not under arrest when asked to perform field sobriety tests during a routine traffic stop).
. Aarud was not under arrest when initially asked for a PBT. In any event, Schmidt thereafter rescinded the PBT request and instead asked Aarud to perform field sobriety tests. Such a request was reasonable under the circumstances, as Aarud implicitly acknowledges. We therefore affirm the judgment.
By the Court. -- Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
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