Earlier this week, we began a discussion about an important recent ruling by the Wisconsin Supreme Court. Most Wisconsin (non-commercial) drivers are legally allowed to drive if their blood alcohol concentration (BAC) is less than 0.08 percent.

Therefore, during a traffic stop, the smell of alcohol on the driver’s breath alone is not usually enough evidence to establish probable cause for the officer to request a breathalyzer test. However, the Wisconsin Supreme Court ruled that the probable cause standard is lower if the officer knows that the driver is an OWI repeat offender and must maintain a BAC below 0.02 percent while driving.

The case which resulted in the Supreme Court ruling concerned a 2008 traffic stop in Eau Claire. The defendant was originally pulled over because his license plate was obstructed. However, during the stop, the officer noticed the odor of alcohol.

The officer discovered that the man had four prior convictions for OWI and that his license had been revoked. With this information in mind, the officer used the odor of alcohol to establish probable cause for a breathalyzer test. The test showed that the defendant had a BAC of 0.084 percent.

The defendant sought to suppress evidence of the breath test, asserting that the officer lacked sufficient probable cause. However, he was ultimately convicted of his fifth OWI and the state Supreme Court recently upheld that conviction in a unanimous 7-0 ruling.

The Court noted that the officer knew the defendant was subject to a prohibited alcohol concentration of just 0.02 percent, and this knowledge was important. The Court added that in such cases, the standard for establishing probable cause is lessened “because the ordinary physical indications of intoxication are not typically present in a person with that level of blood alcohol content.”

Because of this ruling, repeat offenders in Wisconsin will now need to be especially careful about their alcohol consumption when planning to drive.

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

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