State v. Goss, 2010AP1113–CR.

• Decision Date: 23 December 2011
• Docket Number: No. 2010AP1113–CR.,2010AP1113–CR.
• Citation: 338 Wis.2d 72,2011 WI 104,806 N.W.2d 918
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Jason E. GOSS, Defendant–Appellant–Petitioner.
• Court: Wisconsin Supreme Court

2011 WI 104

338 Wis.2d 72

806 N.W.2d 918

STATE of Wisconsin, Plaintiff–Respondent,

v.Jason E. GOSS, Defendant–Appellant–Petitioner.

No. 2010AP1113–CR.

Supreme Court of Wisconsin.

Argued Oct. 5, 2011.Decided Dec. 23, 2011.

For the defendant-appellant-petitioner there were briefs by Dan Chapman and Chapman Law Office, Hudson, and oral argument by Dan Chapman.

For the plaintiff-respondent the cause was argued by David H. Perlman, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.

N. PATRICK CROOKS, J.

This is a review of an unpublished decision of the court of appeals that affirmed the conviction of Jason Goss for fifth offense drunk driving.¹ The case arises from a traffic stop. Goss was stopped by a police officer for having a dirty license plate and a broken license plate lamp. After pulling Goss over, the officer discovered that Goss had a revoked license and had four prior drunk driving convictions and was therefore subject to a .02 prohibited alcohol content (PAC) standard.² In the course of arresting Goss for the license offense, the officer noticed the odor of alcohol and asked Goss to provide a breath sample for a preliminary breath test (PBT), a request that under statute may be made only where there is probable cause to believe the driver is operating a vehicle in violation of one of the statutes related to drunk driving.

¶ 2 We are asked to determine whether the officer's request for the PBT breath sample was made in violation of Wis. Stat. § 343.303, which states that an officer “may request” a PBT breath sample “[i]f a law enforcement officer has probable cause to believe that the person is violating or has violated s. 346.63,” which prohibits driving or operating a motor vehicle with a prohibited alcohol concentration. We agree with Goss that the legislature's intent was to require probable cause for a request for a PBT breath sample for all non-commercial drivers, including those who are subject to a reduced prohibited alcohol content standard. This case presents a question we have not previously addressed: whether probable cause exists to request a PBT breath sample when the driver is known to be subject to a .02 PAC standard, the officer knows it would take very little alcohol for the driver to exceed that limit, and the officer smells alcohol on the driver. We now hold that under these circumstances, there is probable cause to request a PBT breath sample. The PBT breath sample in this case was requested on the basis of probable cause as the statute requires, and we therefore affirm the court of appeals.

I. BACKGROUND

¶ 3 On October 12, 2008, Goss was pulled over by an Eau Claire Police Department officer for an obstructed license plate violation. Goss admitted to the officer that his driver's license was currently revoked, which the officer confirmed by contacting headquarters. The officer was also informed that Goss had four prior drunk driving convictions. The officer then placed Goss under arrest for operating with a revoked license. As the officer placed Goss in the squad car, the officer noticed the smell of alcohol.³

¶ 4 The officer then asked Goss to provide a breath sample for a PBT, and Goss complied.⁴ The PBT indicated a 0.084% blood alcohol content. Following the PBT, the officer asked Goss to perform field sobriety tests and then took him to a local hospital, where a sample of his blood was taken pursuant to Wis. Stat. § 343.305(2).⁵ Chemical analysis of the blood sample revealed a blood alcohol concentration of 0.080%. Goss was subsequently charged with fifth offense drunk driving in violation of Wis. Stat. § 346.63(1)(b).

¶ 5 In pretrial motions before the circuit court for Eau Claire County, the Hon. Lisa K. Stark presiding, Goss asked that the results of the PBT be suppressed on the grounds that probable cause did not exist under these circumstances for the officer to request it.⁶ Goss argued that the only basis for the officer's request was the odor of alcohol; he argued that such a basis is insufficient because this court had stated in County of Jefferson v. Renz that the probable cause required by the PBT statute for a non-commercial driver was intended to mean “more proof than ‘any presence’ of an intoxicant.” ⁷

¶ 6 The circuit court found that probable cause existed to request a breath sample from Goss under these circumstances. The circuit court stated,

The question is then: Based upon the fact that the officer knew this gentleman's license was revoked, he had four prior OWI offenses and he smelled like intoxicants and the officer clearly knew that the blood alcohol content permissible is .02, is that enough to request a preliminary breath test and field sobriety tests?

....

... I'm going to find that it is.

¶ 7 The court went on to distinguish the probable cause needed to request a PBT breath sample from the probable cause needed for arrest on the PAC violation:

I think that is not probable cause for arrest, but it was sufficient basis to continue to conduct additional testing, and it's different from just smelling alcohol on someone with no prior violations or a different applicable statute because you've got the four prior violations that the officer knew about, and I think that makes a difference.

¶ 8 The court of appeals affirmed on the same grounds, holding that probable cause existed to request the PBT breath sample. State v. Goss, No. 2010AP1113–CR, unpublished slip op. (Wis.Ct.App. Nov. 29, 2010). It stated in denying Goss's motion for reconsideration, “[W]e agree with the circuit court that the odor of intoxicants, in conjunction with knowledge that Goss had four prior OWI convictions, provided probable cause to believe that Goss was in violation of the OWI laws.” State v. Goss, No. 2010AP1113–CR, unpublished order (Wis.Ct.App. Jan. 7, 2011). This court granted Goss's petition for review.

II. APPLICABLE LAW

¶ 9 This case requires us to construe a statute, which is a matter of law that we review de novo. Cnty. of Jefferson v. Renz, 231 Wis.2d 293, 301, 603 N.W.2d 541 (1999). It also requires that we make a determination about whether probable cause existed in the particular circumstances presented here. “We uphold the trial court's findings of fact unless they are clearly erroneous.” Id. at 316, 603 N.W.2d 541. “Whether those facts satisfy the statutory standard of probable cause is a question of law we review de novo.” Id. In determining whether probable cause existed, we look to the totality of the circumstances. State v. Babbitt, 188 Wis.2d 349, 356, 525 N.W.2d 102 (Ct.App.1994).

¶ 10 When we construe a statute, we apply the following principles to our analysis.

[S]tatutory interpretation “begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry.” Statutory language is given its common, ordinary, and accepted meaning....

Context is important to meaning. So, too, is the structure of the statute in which the operative language appears. Therefore, statutory language is interpreted in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results. Statutory language is read where possible to give reasonable effect to every word, in order to avoid surplusage.

State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶¶ 45–46, 271 Wis.2d 633, 681 N.W.2d 110 (internal citations omitted).

¶ 11 Wisconsin Stat. § 343.303, the statute we are concerned with here, states in relevant part, “If a law enforcement officer has probable cause to believe that the person is violating or has violated s. 346.63 [which prohibits driving or operating a motor vehicle with a prohibited alcohol concentration] ... the officer, prior to an arrest, may request the person to provide a sample of his or her breath for a preliminary breath screening test....” (emphasis added).

¶ 12 For commercial drivers,⁸ the statute eliminates the requirement of probable cause and permits a PBT request “if the officer detects any presence of alcohol ... on a person driving ... a commercial motor vehicle or has reason to believe that the person is violating or has violated s. 346.63(7) or a local ordinance in conformity therewith....” Wis. Stat. § 343.303 (emphasis added). These two alternatives for commercial drivers are commonly referred to as the “any presence” standard and the “reason to believe” standard to distinguish these standards from the probable cause standard required for non-commercial drivers. See Renz, 231 Wis.2d 293, 603 N.W.2d 541. If either the “any presence” or the “reason to believe” standard is satisfied, the officer may request a PBT breath sample from a commercial driver. Wis. Stat. § 343.303.

¶ 13 We examined this statute in Renz in the context of a challenge to a request by an officer for a PBT breath sample from a non-commercial driver who was suspected of having violated the county OWI ordinance and was subject to what was that time a .10 prohibited alcohol content standard.⁹ Renz, 231 Wis.2d at 299, 603 N.W.2d 541. In Renz, we determined that this statute was ambiguous because it was “subject to ... conflicting, reasonable interpretations,” id. at 305, 603 N.W.2d 541, concerning the meaning of the words “probable cause to believe” and what quantum of evidence satisfied the requirement of probable cause prior to a breath sample request. We determined that a reasonable person could conclude that “probable cause to believe” means “probable cause for arrest” on the grounds that “case law commonly defines probable cause for an arrest as proof that would lead a reasonable police officer to believe that a person probably committed a crime.” Id. at 302, 603 N.W.2d 541. We determined that it was also reasonable to conclude, given the context of the surrounding language, that “probable cause to believe” was intended to mean ...