State v. Repenshek

¶1¶ 33. (concurring). Wisconsin Stat. § 343.303 (2001-02)1 provides in pertinent part:

If a law enforcement officer has probable cause to believe that the person is violating or has violated [statutes or ordinances prohibiting driving while intoxicated] . . . the officer, prior to an arrest, may request the person to provide a sample of his or her breath....

¶2¶ 34. By using the word "if," the legislature has predicated an officer's use of a preliminary breath test (PBT) on probable cause. Without probable cause, an officer may not request a person to provide a sample of his or her breath.

¶3¶ 35. I therefore cannot agree with the majority's analysis of Wis. Stat. § 343.303 in ¶ 25 of its opinion. The problematic sentence reads in part: "Wis. Stat. § 343.303 does not contain a general prohibition on police requesting a PBT." Majority at ¶ 25. I am not sure what the majority means by "general prohibition," and I do not see the difference between a "prohibition" and a "general prohibition." But using "prohibition" with or without the modifier "general" still means that something is prohibited.

¶4*800¶ 36. Wisconsin Stat. § 343.303 prohibits law enforcement officers from requesting breath samples from motorists unless the officer has probable cause to believe that a motor vehicle driver is or has been operating while intoxicated. The statute is inapplicable by its terms to teenage drinking parties unless a teenager is operating a motor vehicle. There is no need for the majority to base its decision on a concern that the police need PBTs to break up teenage drinking parties. Police have and continue to have the right to use PBTs for any lawful purpose.

¶5¶ 37. Still, I reach the same conclusion as does the majority. I agree with its analysis of search and seizure law found in ¶ 23 of its opinion. Suppression of evidence is only required if obtained in violation of an applicable constitutional right, or where a statute provides suppression as a remedy for violating the statute. Repenshek does not assert that either constitution requires that the PBT test results be suppressed, or that any statute so requires. I conclude that though the investigating officer improperly requested Repenshek to take a PBT, suppression of Repenshek's statement that he refused to take the test is not required. Accordingly, I respectfully concur.