COURT OF APPEALS
DATED AND FILED
January 20, 2010
David R. Schanker
Clerk of Court of Appeals
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
STATE OF WISCONSIN
IN COURT OF APPEALS
Bradley J. Tadych,
from a judgment of the circuit court for
¶1 NEUBAUER, P.J. Bradley J. Tadych appeals from a judgment of conviction for operating while under the influence, second offense, contrary to Wis. Stat. § 346.63(1)(a). Tadych raises two challenges on appeal. First, Tadych contends that the trial court erred in denying his motion to suppress evidence based on lack of sufficient probable cause to believe Tadych had violated § 346.63 prior to requesting preliminary breath test (PBT). Second, Tadych contends that the results of the preliminary breath test were erroneously admitted into evidence at the motion hearing. We conclude that the arresting officer had the requisite degree of probable cause to request a PBT. We further conclude that the results of the PBT were appropriately admitted for purposes of establishing probable cause to arrest. We therefore uphold the trial court’s ruling and affirm the judgment.
¶2 On May 15, 2008, the State filed charges against Tadych for operating while intoxicated and operating with a prohibited alcohol concentration, both as a second offense. Shortly thereafter, Tadych filed a motion to suppress evidence based on lack of reasonable suspicion to believe that he had committed a crime and lack of probable cause to arrest. The trial court held a motion hearing on June 25, 2008, at which the facts underlying the charges were testified to by the arresting officer, Deputy Rick Sieracki of the Manitowoc County Sheriff’s Department.
¶3 Sieracki testified that on April 26, 2008, shortly after 4:30
a.m., he was dispatched to a rollover accident. Sieracki arrived at around 5:00 a.m., and
found a truck overturned in a ditch.
There were no occupants in the vehicle or at the scene, but the
registration plates on the vehicle indicated that it belonged to Tadych. After determining Tadych’s address, Sieracki
went to his residence which was located one-quarter mile south of the accident
scene. Sieracki spoke to Tadych’s sister
who indicated that Tadych was at
¶4 Sieracki arrived at the hospital at approximately 5:15 a.m. and located Tadych. Sieracki asked Tadych whether he was the driver of the vehicle in question and what had caused his vehicle to enter the ditch. Tadych responded that he had swerved to avoid a deer. During this exchange, Sieracki noted a “slight odor of intoxicant” on Tadych’s breath and asked whether Tadych had been drinking. According to Sieracki, Tadych responded that he had been drinking but “had stopped drinking by 1:30” in the morning, Sieracki did not request field sobriety testing because of the medical treatment Tadych was receiving. Sieracki informed Tadych that “he would be requesting him to take a PBT, a preliminary breath test, to kind of gauge where he was at.” Tadych complied and the result indicated a PBT of .10. Sieracki then made the decision to arrest Tadych for operating under the influence of an intoxicant.
¶5 At the close of the motion hearing, the court requested
briefing from the parties on the issue of whether there was sufficient probable
cause to justify the administration of the PBT under County of Jefferson v. Renz,
¶6 After hearing arguments, the trial court issued an oral ruling on September 22, 2008, finding that Sieracki had probable cause to administer the PBT and that the results of the PBT were properly admitted for purposes of determining whether the officer had probable cause to arrest. Tadych later pled guilty to OWI, second offense. He now challenges on appeal the trial court’s order denying his motion to suppress.
¶7 When reviewing the denial of a motion to suppress evidence,
we will uphold the circuit court’s findings of fact unless they are clearly
erroneous. State v. Eckert, 203
¶8 Tadych’s first argument stems from Wis. Stat. § 343.303, which states that before an officer
administers a PBT, the officer must have “probable cause to believe that the
person” has operated while intoxicated in violation of Wis. Stat. § 346.63. Tadych contends that Sieracki administered
the PBT without the requisite “probable cause” to administer a PBT under
§ 343.303, which he correctly identifies as “a quantum of proof greater than
the reasonable suspicion necessary to justify an investigative stop, and
greater than the ‘reason to believe’ that is necessary to request a PBT from a
commercial driver, but less than the level of proof required to establish
probable cause for arrest.” See Renz,
¶9 Tadych contends that the facts in this case do not rise to the requisite level of proof under Wis. Stat. § 343.303. In issuing its ruling, the trial court made specific findings as to the facts relevant to its determination of probable cause to administer the PBT: (1) there was a single vehicle rollover accident resulting in injury to the driver requiring hospitalization, (2) although Tadych indicated that the accident was caused by a deer crossing the road, there was no other evidence of the cause of the accident, (3) Sieracki observed a slight odor of alcohol on Tadych, and (4) Tadych admitted consuming alcohol shortly before the accident—Sieracki testified that Tadych stated he had “stopped drinking” at 1:30 a.m. Tadych points out that Sieracki failed to notice any speech impairment, bloodshot eyes, incoherence, and lacked any knowledge as to how much alcohol he had consumed. Tadych argues that when compared to the facts in Renz, the facts here fall short. We disagree.
¶10 In Renz, the defendant was stopped because of loud exhaust coming
from his vehicle. Renz, 231
¶11 In addressing the defendant’s argument, the supreme court
addressed the purpose of the PBT, which is “to help determine whether there are
grounds for arrest.”
¶12 Tadych essentially argues that he was not in that ambiguous area—that the quantum of proof was not greater than needed for reasonable suspicion, that there were not sufficient facts to give rise to the required degree of probable cause for a PBT. However, we conclude that the rollover accident and odor of intoxicants coupled with Tadych’s admission that he had consumed alcohol but “stopped drinking” at 1:30 a.m. were sufficient to provide an officer with not only reasonable suspicion to believe that Tadych may have committed a crime, but also a quantum of proof greater than that. See id. at 317 (probable cause to administer a PBT refers to a quantum of proof greater than reasonable suspicion). Any doubt fostered by the lack of speech impairment and the officer’s inability to request field sobriety testing was properly resolved by the administration of the PBT. See id.
¶13 Tadych next argues that the numerical results of the PBT (.10) were improperly admitted at the motion hearing because it is only approved for qualitative testing (the presence or absence of alcohol). Tadych relies on Wis. Admin. Code § Trans 311.03(12) and (13) for the proposition that because a PBT is a qualitative testing device, as opposed to a quantitative testing device, the “result” is defined in terms of “the presence or absence of alcohol.” Tadych argues that the use of the word “result” in Wis. Stat. § 343.303 is constrained by the definition set forth in § Trans 311.03(12). Again, we disagree.
¶15 We conclude that there was sufficient probable cause under Renz to administer a PBT to Tadych. We further conclude that the numeric result of that PBT was properly admitted for purposes of showing probable cause to arrest. We therefore uphold the trial court’s order denying Tadych’s motion to suppress and affirm the judgment.
By the Court.—Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
 This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2)(c) (2007-08). All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
 Wisconsin Stat. § 343.303 provides in relevant part:
breath 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 s. 346.63(2) … 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 using a device approved by the department
for this purpose. The result of this
preliminary breath 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
s. 346.63(1), (2m), (5) or (7) … and whether or not to require or request chemical tests as authorized under s. 343.305(3). The result of the preliminary breath 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) ….
additionally points us to the facts presented in State v. Colstad, 2003 WI
App 25, 260
court found sufficient probable cause to request a PBT even without the results
of the horizontal gaze nystagmus test during which the defendant exhibited all
six clues for intoxication. Renz,
 Tadych implies in his brief that the Intoxilyzer SD-2 is not a DOT-approved qualitative or quantitative testing device. However, the State introduced as evidence at the motion hearing a printout from the DOT Web site entitled “List of Approved Preliminary Breath Test Instruments,” which included the SD-2. Tadych objected based on lack of authentication and the trial court took his objection under advisement. The trial court subsequently ruled that the listing was admissible under Wis. Stat. § 909.02(5), which provides that extrinsic evidence of authentication as a condition to admissibility is not required with respect to official publications or publications purporting to be issued by public authority. Because Tadych does not develop any argument with respect to the listing or the trial court’s ruling, we need not address the issue further. See State v. Gulrud, 140 Wis. 2d 721, 730, 412 N.W.2d 139 (Ct. App. 1987) (proper appellate argument contains the contention of the party, the reasons therefore, with citation of authorities, statutes and that part of the record relied on; inadequate argument will not be considered).
(12) “Qualitative breath alcohol analysis” means a test of a person’s breath, the results of which indicate the presence or absence of alcohol.
(13) “Quantitative breath alcohol analysis” means a chemical test of a person’s breath which yields a specific result in grams of alcohol per 210 liters of breath.
Insofar as the parties
disagree as to whether a PBT is a qualitative or quantitative test, this court
has stated that a PBT “is a ‘qualitative test.’” See
v. Fischer, 2008 WI App 152, 314
 For example, if Tadych’s result had been a .01 as opposed to a .10, Sieracki (or the trial court) might have made a different determination in weighing the existence of probable cause.
supports the conclusion that a PBT may be used for more than simply determining
the presence or absence of alcohol. In
that case, the facts suggest that the police already knew that some amount of
alcohol was present in the defendant’s blood, both by the defendant’s own
admission to having consumed alcohol and the odor of intoxicants in the
vehicle. Renz, 231