Breath Test by Police at Probation Office not an Unlawful Police
Search
By Joe Forward, Legal Writer,
State Bar of Wisconsin
Oct. 25, 2012 – A probation agent called Elkhorn police to
perform an alcohol breath test on probationer Marilee Devries. She failed
it, and the police officer subsequently arrested her for a sixth drunk
driving offense after learning she drove to the probation office. She
was later convicted.
In State
v. Devries, 2010AP429-CR
(Oct. 24, 2012), the District II Wisconsin Court of Appeals rejected
Devries’s argument that the preliminary
breath test amounted to an unlawful “police search” because
police lacked reasonable suspicion to perform it.
In general, police officers can request that a driver take a
preliminary breath test if there is a basis to make a stop. An arrest
must be supported by probable cause to believe someone has violated
Wisconsin’s OWI laws. In many cases, the breath test supplies
probable cause.
In Devries, the court rejected the argument that the breath
test was a per se police search, performed without probable
cause, because it was physically performed by police. Instead, the
three-judge appeals panel ruled the search was a lawful “probation
search.”
“Here, the PBT was administered for no independent police
purpose, but was instead a limited search executed at the request and on
behalf of the probation agent, during a probation meeting in the
probation office, and for probation purposes,” wrote Judge Mark
Gundrum.
The appeals panel explained that the police officer merely assisted the
probation agent conduct a breath test allowed by state probation rules.
Thus, the subsequent arrest did not violate the probable cause
requirement of police searches, and the evidence need not be
suppressed.
“Because we conclude that the evidence procured from the PBT
administered to Devries was obtained during a probation search, her
contention that the test result and any fruits derived from it must be
suppressed as an unlawful police search fails,” Judge Gundrum
wrote.
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