Wis. Stat. § 343.303
Preliminary screening test
Find cases:
SyfertCases citing this section
WI-LEGdocs.legis.wisconsin.gov
JustiaChapter on Justia
CornellLII Search
CasesGoogle Scholar
343.303343.303 Preliminary screening test. If a law enforcement officer has probable cause to believe that the person is violating or has violated s. 346.63 (1) or (2m) or a local ordinance in conformity therewith, or s. 346.63 (2) or (6) or 940.25 or s. 940.09 where the offense involved the use of a vehicle, or if the officer detects any presence of alcohol, a controlled substance, controlled substance analog or other drug, or a combination thereof, on a person driving or operating or on duty time with respect to 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, the officer, prior to an arrest, may request the person to provide a sample of his or her breath or oral fluids, or both, for a preliminary screening test using a device approved by the department for this purpose. The result of this preliminary screening test may be used by the law enforcement officer for the purpose of deciding whether or not the person shall be arrested for a violation of s. 346.63 (1), (2m), (5) or (7) or a local ordinance in conformity therewith, or s. 346.63 (2) or (6), 940.09 (1) or 940.25 and whether or not to require or request chemical tests as authorized under s. 343.305 (3). The result of the preliminary screening test shall not be admissible in any action or proceeding except to show probable cause for an arrest, if the arrest is challenged, or to prove that a chemical test was properly required or requested of a person under s. 343.305 (3). Following the screening test, additional tests may be required or requested of the driver under s. 343.305 (3). The general penalty provision under s. 939.61 (1) does not apply to a refusal to take a preliminary screening test. A law enforcement officer may collect and retain a sample of a person’s oral fluids only to the extent necessary to perform a preliminary screening test under this section and shall destroy the sample, or return the sample to the person, after conducting the preliminary screening test. A law enforcement officer may not collect or retain a sample of a person’s oral fluids under this section for any purpose other than a preliminary screening test.
343.303 HistoryHistory: 1981 c. 20; 1985 a. 32 s. 3; 1985 a. 337; 1987 a. 3; 1989 a. 105; 1991 a. 277; 1995 a. 448; 2025 a. 99.
343.303 AnnotationA prosecutor’s statement that the defendant failed a preliminary breath test was improper, but evidence that the defendant refused to take a breathalyzer test was relevant and constitutionally admissible. State v. Albright, 98 Wis. 2d 663, 298 N.W.2d 196 (Ct. App. 1980).
343.303 AnnotationA preliminary breath test result is not determinative of probable cause to arrest for driving while intoxicated. A low test result does not void the grounds for arrest. Dane County v. Sharpee, 154 Wis. 2d 515, 453 N.W.2d 508 (Ct. App. 1990).
343.303 AnnotationThe bar of preliminary breath tests under this section is limited to proceedings related to arrests for offenses contemplated under this statute including those related to motor vehicles and intoxication. State v. Beaver, 181 Wis. 2d 959, 512 N.W.2d 254 (Ct. App. 1994).
343.303 AnnotationThis section bars the evidentiary use of preliminary breath test (PBT) results in motor vehicle violation cases, but not in other actions. Prosecutors who wish to rely on PBT results are required to present evidence of the device’s scientific accuracy as a foundation for admission. State v. Doerr, 229 Wis. 2d 616, 599 N.W.2d 897 (Ct. App. 1999), 98-1047.
343.303 Annotation“Probable cause to believe” refers to a quantum of evidence greater than reasonable suspicion to make an investigative stop, but less than probable cause to make an arrest. County of Jefferson v. Renz, 231 Wis. 2d 293, 603 N.W.2d 541 (1999), 97-3512.
343.303 AnnotationBlood may be drawn in a search incident to an arrest for a non-drunk-driving offense if the police reasonably suspect that the defendant’s blood contains evidence of a crime. This section does not prohibit the consideration of a suspect’s refusal to submit to a preliminary breath test for purposes of determining whether a warrantless involuntary draw of the suspect’s blood was supported by reasonable suspicion. State v. Repenshek, 2004 WI App 229, 277 Wis. 2d 780, 691 N.W.2d 369, 03-3089.
343.303 AnnotationUnder St. George, 2002 WI 50, for a defendant to establish a constitutional right to the admissibility of proffered expert testimony, the defendant must satisfy a two-part inquiry determining whether the evidence is clearly central to the defense and the exclusion of the evidence is arbitrary and disproportionate to the purpose of the rule of exclusion, so that exclusion undermines fundamental elements of the defendant’s defense. In an operating while intoxicated prosecution, even if a defendant establishes a constitutional right to present an expert opinion that is based in part on preliminary breath test results, the right to do so is outweighed by the state’s compelling interest to exclude that evidence. State v. Fischer, 2010 WI 6, 322 Wis. 2d 265, 778 N.W.2d 629, 07-1898. But see Fischer v. Ozaukee County Circuit Court, 741 F. Supp. 2d 944 (2010).
343.303 AnnotationProbable cause exists to request a preliminary breath test sample when the driver is known to be subject to a 0.02 prohibited alcohol content 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. State v. Goss, 2011 WI 104, 338 Wis. 2d 72, 806 N.W.2d 918, 10-1113.
343.303 AnnotationA preliminary breath test may be requested when an officer has a basis to justify an investigative stop but has not established probable cause to justify an arrest. Under the facts of this case, the officer would have been justified in asking the defendant to take a preliminary breath test without asking him to perform any field-sobriety tests. That the defendant successfully completed all properly administered field-sobriety tests did not subtract from the common-sense view that the defendant may have had an impermissible blood-alcohol level. State v. Felton, 2012 WI App 114, 344 Wis. 2d 483, 824 N.W.2d 871, 11-2119.
343.303 AnnotationThe Wisconsin Supreme Court’s decision in Fischer, 2010 WI 6, affirming the exclusion of the defendant’s expert’s testimony using preliminary breath test results involved an unreasonable application of federal law as determined by the U.S. Supreme Court. Fischer v. Ozaukee County Circuit Court, 741 F. Supp. 2d 944 (2010).
Notes of Decisions
Cited in 56
cases (21 in the last 5 years), 1984–2026 · leading case: County of Jefferson v. Renz
County of Jefferson v. Renz (1999)
“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…”
State v. Fischer (2010)
“¶ 2 In its motion in limine, the State sought to exclude the evidence to the extent that it relied on Fischer's PBT results on two grounds: first, that Wis. Stat. § 343.303 , which prohibits admitting PBT results as evidence in drunk driving cases except for limited purposes…”
State v. Repenshek (2004)
“§ 343.303 [1] prohibit consideration of a refusal to submit to a preliminary breath test when police lack "probable cause" within the meaning of that statute? and (4) Did police possess reasonable suspicion that Repenshek's blood contained evidence of a crime? We resolve each of…”
State v. Faust (2004)
“Faust then voluntarily submitted to a preliminary breath test under Wis. Stat. § 343.303 (2001-02), [2] the result of which indicated Faust possessed an alcohol *189 concentration of 0.”
Fischer v. Ozaukee County Circuit Court (2011)
“) The trial court barred this testimony because Wis. Stat. § 343.303 *948 precludes PBT results from being admitted in any action or proceeding except to show probable cause for an arrest.”
State v. Colstad (2003)
“When Colstad's performance of the field sobriety tests is combined with the mild odor of intoxicants and the suspicious circumstance of Colstad's truck colliding with a child on an unobstructed street where Colstad was allegedly watching for children, the totality of the facts…”
State v. Goss (2011)
“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…”
State v. Felton (2012)
“Probable cause under Wis. Stat. § 343.303 to give Felton the preliminary-breath test.”
State v. Jorgensen (2008)
“See Wis. Stat. § 343.303 (rendering a preliminary breath test inadmissible unless certain exceptions apply).”
State v. Gerald P. Mitchell (2018)
“Wis. Stat. § 343.303 . 3 There was no warrant sought prior to drawing Mitchell's blood.”
State v. Doerr (1999)
“Doerr also argues that the admissibility of the PBT is barred by § 343.303, Stats. Although we determine that the trial court erred by admitting evidence of the PBT, we affirm because the error was harmless.”
State v. Luis M. Rocha-Mayo (2014)
“The circuit court reasoned that Wis. Stat. § 343.303 must be read in its entirety, and that the plain language of the statute applies to PBT results obtained by law enforcement.”
— Wis. Stat. § 343.303(3) — 1 case
County of Jefferson v. Renz (1998)
Annotations are extracted automatically from the opinions in the
Syfert caselaw corpus and ranked by authority, recency, and
treatment. Dots show Syfertize treatment of the citing case itself.