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  • October 24, 2012

    Breath Test by Police at Probation Office not an Unlawful Police Search

    Breath Test by Police at Probation Office not an Unlawful Police Search

    By Joe Forward, Legal Writer, State Bar of Wisconsin

    Breath Test by Police at Probation Office not   an Unlawful Police Search Oct. 25, 2012 – A probation agent called Elkhorn police to perform an alcohol breath test on probationer Marilee Devries. She failed it, and the police officer subsequently arrested her for a sixth drunk driving offense after learning she drove to the probation office. She was later convicted.

    In State v. Devries, 2010AP429-CR (Oct. 24, 2012), the District II Wisconsin Court of Appeals rejected Devries’s argument that the preliminary breath test amounted to an unlawful “police search” because police lacked reasonable suspicion to perform it.

    In general, police officers can request that a driver take a preliminary breath test if there is a basis to make a stop. An arrest must be supported by probable cause to believe someone has violated Wisconsin’s OWI laws. In many cases, the breath test supplies probable cause.

    In Devries, the court rejected the argument that the breath test was a per se police search, performed without probable cause, because it was physically performed by police. Instead, the three-judge appeals panel ruled the search was a lawful “probation search.”

    “Here, the PBT was administered for no independent police purpose, but was instead a limited search executed at the request and on behalf of the probation agent, during a probation meeting in the probation office, and for probation purposes,” wrote Judge Mark Gundrum.

    The appeals panel explained that the police officer merely assisted the probation agent conduct a breath test allowed by state probation rules. Thus, the subsequent arrest did not violate the probable cause requirement of police searches, and the evidence need not be suppressed.

    “Because we conclude that the evidence procured from the PBT administered to Devries was obtained during a probation search, her contention that the test result and any fruits derived from it must be suppressed as an unlawful police search fails,” Judge Gundrum wrote.

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