Dec. 27, 2011 – The probable cause that police must obtain to legally breath test drivers is less onerous if the driver is subject to laws prohibiting a lowered alcohol concentration (PAC) level, the Wisconsin Supreme Court recently concluded.
For Jason Goss, that meant a police officer had probable cause to give him a preliminary breath test (PBT) when he “smelled an odor of intoxicants coming from his person” and knew Goss was subject to a lower level PAC because of previous Operating While Intoxicated (OWI) convictions.
Normally, police officers must have “probable cause to believe” a non-commercial driver is in violation of the state’s OWI laws to legally request a breath sample.
Without more, the mere odor of alcohol may not be enough to give police probable cause, because drivers with two or fewer prior convictions, suspensions, or revocations for operating under the influence of alcohol or drugs can legally drive with a blood alcohol concentration (BAC) level of less than .08 percent. Under Wis. Stat. section 340.01(46m)(c), however, repeat (three or more) OWI offenders are prohibited from driving with a BAC of more than .02 percent.
Under State v. Goss, 2011 WI 104 (Dec. 23, 2011), the odor of alcohol gives police probable cause to request a breath sample if a driver is subject to the .02 percent level and the officer knows it, the supreme court ruled in a unanimous 7-0 decision.
In 2008, an Eau Claire police officer stopped Goss for an obstructed license plate. His license was revoked and Goss had four prior OWI convictions, the officer discovered.
After smelling an odor of alcohol on Goss, the officer conducted a breath test, which showed a BAC level of 0.084 percent. Later, Goss asked the trial court to suppress the breath test, arguing that the officer did not have probable cause to give it.
With four prior convictions, Goss was subject to the .02 percent PAC under section 340.01(46m)(c). The officer’s knowledge of this was important, the court explained.
“In this case, both the smell of alcohol and the officer’s knowledge that Goss could drink only a very small amount before exceeding the legal limit that applied to him make the conclusion that Goss was likely in violation of the statute highly plausible,” Justice N. Patrick Crooks wrote.
The court explained that a lesser probable cause standard is necessary where an officer suspects a violation of a .02 PAC, “because the ordinary physical indications of intoxication are not typically present in a person with that level of blood alcohol content.”
“To hold otherwise would hamstring the ability of law enforcement to investigate a suspected violation of the .02 PAC statute,” Justice Crooks wrote for the court, which upheld Goss's fifth drunk driving offense.
Dan Chapman of Chapman Law Office, Hudson, represented Jason Goss. Assistant Attorney General David Perlman represented the state.
 Wis. Stat. § 343.303. Note that commercial drivers are subject to a PBT if an officer detects “any presence of alcohol.” Id.