We have previously written about the importance of establishing probable cause in DUI traffic stops. If police were not required to establish probable cause, they could pull over drivers for any reason and administer field sobriety and breathalyzer tests just as randomly.

Most Wisconsin drivers are legally allowed to drive after drinking as long as their blood alcohol concentration (BAC) is below 0.08 percent. Therefore, during a traffic stop, Wisconsin law enforcement officers do not generally have probable cause to request a breathalyzer test simply because they smell alcohol on the driver’s breath.

But the Wisconsin Supreme Court recently ruled that the standard for establishing probable cause is lower if the police officer knows that the person he has pulled over has been classified as an OWI repeat offender. In these cases, smelling alcohol on the breath might be enough to establish probable cause.

A driver with three or more OWI convictions is considered a repeat offender. Under Wisconsin law, repeat offenders are not allowed to drive if they have a BAC of 0.02 percent or more. Their prohibited alcohol concentration (PAC) is much lower than for other drivers.

In a recent case involving an OWI repeat offender, the state Supreme Court ruled that if an officer knows that a stopped driver is subject to this 0.02 percent PAC, the odor of alcohol alone can be enough to establish probable cause for requesting a breath test.

Check back later this week as we continue our discussion. We’ll talk more about the case that led the state Supreme Court’s decision.

Source: State Bar of Wisconsin, “Probable cause standard different for .02 PAC cases, the supreme court clarifies,” Joe Forward, Dec. 27, 2011

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