Wisconsin Approves Lower Probable Cause Standard for Some Drivers

In December of 2011, the Wisconsin Supreme Court issued an opinion regarding the level of probable cause that a police officer needs to test a driver's blood alcohol content when the police officer knows that the driver is subject to the state's lower Prohibited Alcohol Concentration law. The court's decision in this case could have an impact on Wisconsin drivers charged with OWI.

Probable Cause to Test for BAC

Under Wisconsin law, the PAC for most drivers is .08. However, drivers with three or more convictions, suspensions or revocations for OWI are subject to a lower PAC of .02. The law states that an officer needs to have probable cause to believe that a noncommercial driver is violating the state's OWI laws in order to request a Breathalyzer test.

In most cases, the mere smell of alcohol alone is not enough to provide probable cause to request a breath test because a driver could smell like alcohol and still have a BAC lower than .08. However, after the court's decision in State v. Goss, if police know that a driver is subject to .02 PAC, the smell of alcohol may be all the probable cause an officer needs to administer a breath test.

State v. Goss

In 2008, police stopped Jason Goss for an obstructed license plate and smelled alcohol on him during the stop. The police knew Goss was subject to the .02 PAC level after checking his driving record and finding four prior OWI convictions. Police had Goss take a breath test and measured his BAC at .084.

Goss requested the breath test results be suppressed at his hearing, arguing that police did not have probable cause to administer the breath test. The court admitted the test results and Goss was convicted of a fifth OWI.

Goss appealed his conviction all the way to the Wisconsin Supreme Court, and the court upheld his conviction. The court emphasized that since the police knew that Goss could not drive with a BAC higher than .02, the smell of alcohol was sufficient probable cause for the officers to believe that Goss was in violation of the law. The court noted that most people do not show any physical signs of having alcohol in their systems at a .02 BAC, so to demand more for probable cause than the smell of alcohol would make it almost impossible for police to enforce the lower PAC provision of the state's OWI laws.

The court's decision could have an impact on many Wisconsin drivers. Those who cannot drive with a BAC higher than .02 because of prior OWI convictions will be even more susceptible to run-ins with the law because police will need less justification for issuing breath tests.

Wisconsin authorities take OWI charges very seriously. If you are facing OWI charges, do not hesitate to contact an experienced criminal defense attorney who can help defend your rights.