Updated on February 3rd, 2021 at 10:49 pm

 Wisconsin Supreme Court OK’s Police Whiff Test

Generally, a police officer may request a preliminary breath test (PBT, commonly known as a roadside breath test) only if they have established probable cause to believe that a driver is under the influence of alcohol or has a prohibited amount of alcohol in their body.  This would typically include officer observations and instructing the driver to perform standardized field sobriety tests.

Not anymore though! The Wisconsin Supreme Court just affirmed a ruling out of Eau Claire where a police officer smelled a “mere whiff” of alcohol on a driver known to have three prior Drunk Driving convictions. This ruling is directed at drivers with a minimum of three prior Drunk Driving convictions. After a third drunk driving conviction, the State of Wisconsin limits the motorists legal blood alcohol concentration to .02, instead of the traditional .08 limit. This case, which specifically targets the .02 Prohibited Alcohol Concentration limit, now allows officers who detect even the slightest amount of alcohol on a driver’s breath to conduct a PBT.

I will be curious to watch how this affects 4th offense and higher drunk driving related charges in the future. Field sobriety tests are designed to be non-subjective or objective tests that, if performed correctly, guide an officer to establishing probable cause for requesting a motorist to take a roadside breath test. I understand the Supreme Court ruling and the legislative intent behind the .02 Prohibited Alcohol Concentration for repeat DUI offenders, but in my opinion this ruling is providing too much subjective power to police officers.

Nathan J. Dineen