County of Jefferson v. Renz

• Decision Date: 22 December 1999
• Docket Number: No. 97-3512.,97-3512.
• Citation: 603 N.W.2d 541,231 Wis.2d 293
• Parties: COUNTY OF JEFFERSON, Plaintiff-Respondent-Petitioner, v. Christopher D. RENZ, Defendant-Appellant.
• Court: Wisconsin Supreme Court

231 Wis.2d 293

603 N.W.2d 541

COUNTY OF JEFFERSON, Plaintiff-Respondent-Petitioner, v. Christopher D. RENZ, Defendant-Appellant.

No. 97-3512.

Supreme Court of Wisconsin.

Oral argument September 9, 1999.

Decided December 22, 1999.

For the plaintiff-respondent-petitioner there were briefs and oral argument by David J. Wambach, district attorney.

For the defendant-appellant there was a brief by Stephen E. Mays and Thomas, Kelly, Habermehl & Mays, S.C., Madison and oral argument by Stephen E. Mays.

¶ 1. JON P. WILCOX, J.

The petitioner, Jefferson County, seeks review of a published decision of the court of appeals, County of Jefferson v. Renz, 222 Wis. 2d 424, 588 N.W.2d 267 (Ct. App. 1998), which held that a law enforcement officer must have probable cause for an arrest before asking a driver suspected of driving while intoxicated to submit to a preliminary breath test (PBT) under Wis. Stat. § 343.303 (1993-94).¹ The court of appeals reversed the judgment of conviction against the defendant, Christopher Renz, for driving while intoxicated (OWI) and with a prohibited alcohol concentration (PAC), which was entered in the circuit court for Jefferson County, Judge John M. Ullsvik.

¶ 2. The sole issue on appeal is whether a law enforcement officer is required to have probable cause for arrest before asking a suspect to submit to a PBT. We conclude that the legislature did not intend to require an officer to have probable cause to arrest before requesting a PBT. We therefore reverse the court of appeals and remand the cause to the circuit court for reinstatement of the judgment of conviction.

I.

¶ 3. The parties agree that the facts in this case are as follows. At about 2:00 a.m. on February 12, 1996, Deputy Sheriff David Drayna of the Jefferson County Sheriff's Department was on duty as a patrol officer. As he traveled west on Highway 106, a Chevy Camaro with a loud exhaust passed by heading east. Concluding that the exhaust system was in violation of the law, the officer pulled the Camaro over.

¶ 4. When the officer approached the car, the defendant rolled down his window, presented a Wisconsin driver's license and identified himself as Christopher Renz. The officer informed him that he had been stopped for a defective exhaust, and the defendant acknowledged that the exhaust leaked and was loud. During this initial conversation, the officer smelled a strong odor of intoxicants coming from inside the Camaro.²

¶ 5. The officer returned to his squad car and ran a standard computer check on the defendant and the Camaro. The check yielded nothing of interest, and the officer returned to the driver's side window. The officer again smelled the strong odor of intoxicants. He asked the defendant to step out of the car and inquired whether he had been drinking. The defendant replied that he was a bartender at a tavern and had drunk three beers earlier in the evening. The officer asked the defendant to submit to field sobriety tests, and he agreed.

¶ 6. Officer Drayna had received training on OWI detection, and during his six years with the Jefferson County Sheriff's Department he had made over 200 OWI arrests. His training was based in part on a field sobriety test manual developed by the National Highway Traffic Safety Administration and the U.S. Department of Transportation (DOT).

¶ 7. The first test he administered was the alphabet test. The defendant was able to recite the alphabet correctly. At no time during the test or throughout their conversations did the officer observe the defendant's speech to be slurred.

¶ 8. The next test was the one-legged stand. The officer instructed the defendant to stand with his feet together and his arms directly down at his sides. The defendant was then asked to raise one leg directly out in front of him about six inches off the ground and count from 1001 to 1030 while watching his foot. At 1018, he put his foot down, raised it again, and restarted his count from 1010. He was able to complete the count from 1010 to 1030 without putting his foot down again. The DOT manual lists four standard clues of intoxication to watch for on this test; the defendant only exhibited one clue, putting the foot down.

¶ 9. The third test was the heel-to-toe walking test. The officer instructed the defendant to walk nine steps on an imaginary line, heel to toe, with his arms directly down at his sides, then to turn back and walk another nine steps. The defendant left a half inch to an inch of space between his heel and toe on all of the steps. On his way back, the defendant stepped off the imaginary line on step seven. He then restarted and completed the test. The manual lists eight possible clues of intoxication for this test; the defendant exhibited two of these, stepping off of the line, and leaving more than a half inch between steps. The officer also observed that the defendant swayed from left to right while performing the test, but because swaying is not one of the clues in the manual, the officer did not account for this in calculating the standardized test. He did, however, consider it to be an indicator of intoxication.

¶ 10. The fourth test was the finger-to-nose test. This test was not from the manual, but the officer had learned it in his recruit class and through training at the sheriff's department. He instructed the defendant to stand with his feet together, arms out to his sides, with fingers extended. He was then supposed to tilt his head back, close his eyes, and touch the tip of his nose, first with his right index finger, then with his left. The defendant touched the tip of his nose with his right index finger, but touched the upper bridge of his nose with his left.

¶ 11. The fifth test was another standardized test, the horizontal gaze nystagmus (HGN) test, which the officer was certified to perform after twenty-four hours of training. The test requires a subject to stand with his or her feet together and arms down and follow the tip of a pen with his or her eyes as the officer moves the pen from one side to the other. The specially trained officer watches for six "clues" of intoxication, relating to a particular kind of jerkiness in the eyes. The defendant exhibited all six clues. Based on his training, the officer believed that this indicated a blood alcohol level of at least .10.

¶ 12. After administering these tests, the officer asked the defendant if he would submit to a PBT. The defendant agreed. The PBT indicated his blood alcohol level was .18.³ The officer then placed the defendant under arrest for OWI in violation of Jefferson County ordinance 83.16,⁴ adopting Wis. Stat. § 346.63(1)(a). In addition, after blood tests had been performed, the defendant was cited with violation of the county's ordinance adopting the PAC statute, Wis. Stat. § 346.63(1)(b).⁵

¶ 13. Through his attorney, the defendant filed various motions objecting to the arrest and to the evidence against him, including a motion to suppress evidence because of an unlawful detention and arrest. In that motion, he argued that the officer lacked the requisite probable cause to request a PBT under Wis. Stat. § 343.303⁶ and that the PBT result therefore could not be considered in the determination of whether there was probable cause for the arrest. At the motion hearing Judge Ullsvik sustained an objection to the officer's testimony regarding the HGN test on the grounds that the testimony was not admissible without independent expert testimony establishing the validity of the test. Nonetheless, the judge held that the officer had the requisite amount of probable cause to request the PBT. He explained that the definition of "probable cause" varies in relation to the liberty interests involved at the various stages of governmental interaction with the accused. The judge concluded that the officer had sufficient probable cause for the purpose of continuing the investigation by requesting the PBT.

¶ 14. The court of appeals reversed, concluding that the legislature intended that an officer must have probable cause to arrest a person for violation of the relevant laws before requesting a PBT, and that before administering the PBT, the officer lacked probable cause to arrest the defendant.

II.

¶ 15. We now consider the petitioner Jefferson County's argument that the level of probable cause required before an officer may request a PBT under Wis. Stat. § 343.303 is a lesser amount of proof than probable cause for arrest. The case turns on interpretation of the first sentence of § 343.303, which states that "[i]f a law enforcement officer has probable cause to believe that the person is violating or has violated s. 346.63(1)...," the officer, prior to an arrest, may request the person to provide a PBT.⁷

¶ 16. The court of appeals held that the legislature intended by this language to require an officer to have probable cause to arrest before requesting a PBT. Renz, 222 Wis. 2d at 443. The court based this holding in part on its conclusion that case law so clearly defines "probable cause" in this context to mean "probable cause to arrest," that the legislature would have indicated if it intended some other standard to apply. Id. The court also concluded that legislative history supports this interpretation. Id.

¶ 17. The petitioner argues that this interpretation is contrary to the intent of the legislature and cannot be reconciled with the rest of Wis. Stat. § 343.303. In support of this argument, the petitioner insists that under this interpretation other provisions of the statute do not make sense and points to case law establishing that "probable cause" refers to different degrees of proof at different stages of the proceedings.

¶ 18. Statutory interpretation is a question of law that we review de novo. State v. Setagord, 211 Wis. 2d 397, 405-06, 565 N.W.2d 506 (1997); Lake City Corp. v. City of Mequon, 207 Wis. 2d 155, 162, 558 N.W.2d 100 (1997). The objective of statutory interpretation is...