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[T] State v. Nielson5/1/2003
d limit, an event that occurred shortly after bar time. He also noted that Nielson's eyes were red and bloodshot, he had the odor of intoxicants about him, his speech was slurred and he admitted to drinking. Nielson had also failed the one-leg stand test and had had some confusion about how to order the letter "p" in the alphabet test. These facts were noticed by an officer who had more than eleven years of highway patrol experience, had stopped many drivers in the past and who testified that he believed Nielson was driving while intoxicated. We conclude that these facts were sufficient to satisfy the statutory level of probable cause required by Wis. Stat. § 343.303 in order to request Nielson to take a preliminary breath test.
Consent.
. Nielson contends that he did not consent, in a constitutional sense, to take the preliminary breath test. Taking one's breath for a preliminary breath test is a search under the Fourth Amendment. County of Milwaukee v. Proegler, 95 Wis. 2d 614, 623, 291 N.W.2d 608, 612 (Ct. App. 1980). For a search pursuant to consent to be constitutionally permissible, the consent must be voluntary as determined by the totality of the circumstances. State v. Rodgers, 119 Wis. 2d 102, 114, 349 N.W.2d 453, 459 (1984). Therefore, when the State relies on consent for a search, it must prove by clear and convincing evidence that the consent was voluntarily given and not the product of duress or coercion. See id. As part of the totality of the circumstances reviewed when consent is questioned, we recognize that police need to be able to seek cooperation of and ask questions of individuals and that seeking cooperation is not equivalent to coercion. See State v. Stankus, 220 Wis. 2d 232, 239, 582 N.W.2d 468, 471 (Ct. App. 1998). And finally, consent need not be verbally given; it may be evidenced by conduct. Phillips, 218 Wis. 2d at 197, 577 N.W.2d at 802.
. Here, the interaction between Nielson and Hanson was described as cooperative in all respects, not just the blowing into a device to obtain the preliminary breath test. There is no evidence in the record of any type of coercion or duress placed upon Nielson to get him to perform the preliminary breath test, nor does Nielson suggest that there was. Hanson simply handed the preliminary breath test device to Nielson and asked him to blow into it, and Nielson did so. Accordingly, we conclude that the finding of historic fact that Nielson consented is not clearly erroneous and the constitutional finding that consent was given is supported by ample evidence to meet the State's burden of proof by clear and convincing evidence.
CONCLUSION
. We conclude that the arresting officer had probable cause to believe Nielson was OMVWI and therefore, appropriately requested a preliminary breath test, and because Nielson consented to that test, we affirm the order and judgment of the circuit court.
By the Court. -- Judgment and order affirmed.
This opinion will not be published. Wis. Stat. Rule 809.23(1)(b)(4).
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