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COURT OF APPEALS
DECISION
NOTICE
DATED AND FILED
This opinion is subject to further editing. If
published, the official version will appear in the
bound volume of the Official Reports.
January 26, 1999
A party may file with the Supreme Court a
                                                                                       Marilyn L. Graves         petition  to  review  an  adverse  decision  by  the
                                                                                       Clerk, Court of Appeals   Court of Appeals.  See § 808.10 and RULE 809.62,
                                                                                       of Wisconsin              STATS.
No.                                                                                    98-2463
STATE OF WISCONSIN                                                                     IN COURT OF APPEALS
                                                                                       DISTRICT III
COUNTY OF MARINETTE,
PLAINTIFF-RESPONDENT,
V.
ROBERT A. GREENE,
DEFENDANT-APPELLANT.
APPEAL from a judgment of the circuit court for Marinette County:
TIM A. DUKET, Judge.  Affirmed.
MYSE, P.J.    Robert A. Greene appeals a judgment of conviction for
operating a motor vehicle while intoxicated based on the trial court’s denial of his
motion  to  suppress  evidence  gathered  following  the  administration  of  a
preliminary breath test (PBT).   Greene contends the officer lacked probable cause
to administer the PBT and that even if the officer had probable cause to administer
the test, the  0.09% PBT result compelled the officer to stop his investigation.




No. 98-2463
Greene also contends the trial court erred by refusing to submit Greene’s challenge
to the reliability and accuracy of the Intoxilyzer  5000 to the jury.    This court
concludes there was probable cause to administer the PBT, the officer was not
required to stop his investigation after a  0.09% PBT result, and the trial court
properly exercised its discretion by relying upon the presumption of accuracy and
reliability accorded recognized methods of testing authorized by §343.305(6)(b),
STATS.    Accordingly, the judgment of conviction is affirmed.
Deputy  Michael  Sievert  was  investigating  a  reported  car/deer
accident.   As Sievert was removing the deer from Highway 141, Greene pulled his
pickup truck behind Sievert’s squad car.   Greene’s truck was equipped with lifts,
making it taller than a normal pickup truck.   As Greene stepped out of the truck,
Sievert observed Greene stumble into the lane of traffic.   Greene told Sievert that
he had just struck the deer.   Sievert also observed Greene lean forward and then
step  backwards  as  he  attempted  to  show  Sievert  the  damage  to  his  vehicle
resulting from his collision with the deer.    Sievert intentionally got closer to
Greene to see if he could make any further observations.   He noted the odor of
intoxicants and observed that Greene’s eyes were half-closed, red and glassy.   He
also noted that, while not slurred, Greene’s speech was “real slow.”   Sievert asked
Greene if he had been drinking and Greene admitted he had.   At that point, Sievert
administered a preliminary breath test which resulted in a 0.09% reading.   Sievert
then asked Greene to perform various field sobriety tests. After administering the
field  sobriety  tests,  Sievert  arrested  Greene  for  operating  his  vehicle  while
intoxicated.
Following his arrest, Greene was administered a breath test on an
Intoxilyzer 5000 machine.   A jury convicted Greene of operating his motor vehicle
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No. 98-2463
while under the influence of an intoxicant, but acquitted him of operating a motor
vehicle with a prohibited alcohol concentration.
Greene first contends the trial court erred by refusing to suppress the
evidence of intoxication gathered following the administration of the PBT because
the officer lacked probable cause to administer the PBT.   In this case, the question
of probable cause requires the application of undisputed facts to principles of law.
Whether the established facts constitute probable cause presents a question of law
this court decides without deference to the trial court’s determination.   State v.
Babbitt, 188 Wis.2d 349, 356, 525 N.W.2d 102, 104 (1986).
An officer may request an individual to submit to a PBT if the
officer has probable cause to believe that the individual has been driving while
intoxicated in violation of § 346.63(1)(a), STATS.   See § 343.303, STATS.     This
court  has  recently  concluded  that  the  probable  cause  standard  required  to
administer a PBT under § 343.303 is the same standard as probable cause to arrest
for a violation of § 346.63(1)(a).   County of Jefferson v. Renz, 1998 WL 751239
(Ct. App. 1998).1   In the context of arrest, probable cause refers to that quantum of
evidence that would lead a reasonable  police officer to believe  that a person
probably committed a crime.   County of Dane v. Sharpee, 154 Wis.2d 515, 518,
453 N.W.2d 508, 510 (Ct. App. 1990).   Probable cause is a question of probability
and plausibility and is a common sense test based on “considerations of everyday
life on which reasonable and prudent persons, not legal technicians, act.”   State v.
Truax,  151  Wis.2d  354,  360,  444  N.W.2d  432,  435  (Ct.  App.  1989).    The
objective facts before the officer need only lead to the conclusion that guilt is more
1 This court of appeals decision was ordered published on November  18,  1998.    A
petition for review was granted December 17, 1998.
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No. 98-2463
than a possibility.   State v. Richardson, 156 Wis.2d 128, 148, 456 N.W.2d 830,
838 (1990).   The quantum of information constituting probable cause to arrest is
measured by the facts of the particular case.    State v. Wilks, 117 Wis.2d 495, 502,
345 N.W.2d 498, 501 (Ct. App. 1984).   In making that measurement, this court
considers all the facts and circumstances within the officer’s knowledge at the
time.   State v. Paszek, 50 Wis.2d 619, 625, 184 N.W.2d 836, 840 (1971).
Section                                                                                  346.63 (1)   (a),   STATS.,   prohibits   driving   “[u]nder   the
influence of an intoxicant … to a degree which renders [one] incapable of safely
driving.”     Therefore,  to  determine  whether  Sievert  had  probable  cause  to
administer the PBT, this court considers the evidence prior to the PBT that would
lead Sievert to believe that Greene probably was driving under the influence of
alcohol to a degree that affected his ability to drive safely.   In this case, Sievert
observed Greene stagger into the traffic lane as he stepped out of his vehicle.
Sievert also observed Greene lean forward and then step backward as he attempted
to demonstrate the damage to his truck resulting from his collision with a deer.
Sievert described this motion as if Greene  “was losing his balance.”    This is
evidence Greene was unsteady.   It is common knowledge that unsteadiness is one
symptom of intoxication and may impair a person’s ability to drive safely.   Renz,
1998 WL  751239 at  *8.    In addition, upon approaching Greene more closely,
Sievert detected an “obvious” odor of intoxicants, observed Greene’s speech to be
slow and noticed that Greene’s eyes were half-closed, red and glassy.    When
questioned, Greene admitted he had been drinking.   Considering the totality of
these circumstances, this court concludes the evidence is sufficient to establish that
Sievert   had   probable   cause   to   believe   Greene   was   probably   violating
§ 346.63(1)(a) and therefore had probable cause to administer the PBT.
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No. 98-2463
The PBT resulted in a 0.09% reading.   Greene maintains that even if
Sievert had probable cause to administer the PBT, the recording of a result less
than  0.10% dispelled Sievert’s probable cause and compelled Greene’s release.
This court disagrees.    The test result does not require that the officer stop his
investigation because the PBT is not the sole determinant of probable cause to
arrest.   Sharpee, 154 Wis.2d at 520, 453 N.W.2d at 511.   A low test result does
not void grounds for an arrest.   Id.   Rather, the PBT becomes part of the totality of
circumstances the officer considers in determining whether to effectuate arrest.
Id. This court concludes, therefore, that Sievert had probable cause to administer
the  PBT  and  that  the  result  did  not  compel  that  Sievert’s  investigation  stop.
Accordingly, the trial court properly denied Iversen’s motion to suppress evidence
obtained following the administration of the PBT.
Greene next claims that the court erred in applying the presumption
of reliability and accuracy to the breath analysis obtained from an Intoxilyzer 5000
machine.   This court has previously stated that a recognized method of testing
authorized  by  statute  is  afforded  a  prima  facie  presumption  of  accuracy  and
reliability.   State v. Disch, 119 Wis.2d 461, 475, 351 N.W.2d 492, 499 (1984);
see also § 343.305(6)(b), STATS.   Greene contends that the presumption does not
attend the  Intoxilyzer  5000 because  of  various software changes  made in the
machine after its initial certification.
In State v. Busch,  217 Wis.2d  429,  576 N.W.2d  904  (1998), our
supreme court concluded that an Intoxilyzer 5000 was entitled to the presumption
if  the  machine  retained  its  analytical  process  despite  alterations  made  in  the
machine following its initial certification.   Id. at 435, 576 N.W.2d at 906.     In
Busch,  changes  made  to  the  Intoxilyzer                                                 5000  were  determined  not  to  have
changed the machine’s analytical process.   The court concluded that the machine
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No. 98-2463
was entitled to the presumption of accuracy and reliability notwithstanding the
changes that had been made.   Id. at 438, 576 N.W.2d at 907.
Here, Greene contends that software changes made to the Intoxilyzer
5000 preclude the presumption of accuracy and reliability.   The senior electronics
technician for the Wisconsin State Patrol Chemical Test Section testified that the
software changes did not alter the machine’s analytical process.   No evidence was
received that suggested the software changes did alter the machine’s analytical
process.    Accordingly, and consistent with  our supreme court’s conclusion in
Busch, the trial court did not err by applying the presumption of accuracy and
reliability to this Intoxilyzer 5000 notwithstanding the software changes made.
Because Sievert had probable cause to administer the PBT and was
not compelled to halt his investigation, the trial court did not err by refusing to
suppress the evidence obtained following the administration of the PBT.   Further,
the trial court properly accorded the Intoxilyzer 5000 test results the presumption
of reliability and accuracy.   Accordingly, the judgment of conviction is affirmed.
By the Court.—Judgment affirmed.
This opinion will not be published.   RULE 809.23(1)(b)4, STATS.
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