                                                                 2015 WI 46

                  SUPREME COURT                OF   WISCONSIN
CASE NO.:                 2013AP2107-CR
COMPLETE TITLE:           State of Wisconsin,
                                    Plaintiff-Respondent-Petitioner,
                               v.
                          Dean M. Blatterman,
                                    Defendant-Appellant.


                              REVIEW OF A DECISION OF THE COURT OF APPEALS
                             (Reported at 354 Wis. 2d 325, 847 N.W.2d 427)
                                        (Ct. App. – Unpublished)

OPINION FILED:            May 5, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:            February 4, 2015

SOURCE OF APPEAL:
   COURT:                 Circuit
   COUNTY:                Dane
   JUDGE:                 William E. Hanrahan

JUSTICES:
   CONCURRED:             ZIEGLER, J., ROGGENSACK, C.J. (joining section
                          II) and PROSSER, J.
     DISSENTED:
     NOT PARTICIPATING:


ATTORNEYS:
         For    the       plaintiff-respondent-petitioner,       the   cause    was
argued by David H. Perlman, assistant attorney general, with
whom on the briefs was J.B. Van Hollen, attorney general.




         For the defendant-appellant, there was a brief by Marcus J.
Berghahn and Hurley, Burish & Stanton, S.C., Madison, and Jonas
B.      Bednarek       and    Bednarek   Law   Office,   S.C.,    Madison.     Oral
argument by Jonas B. Bednarek.
                                                                              2015 WI 46
                                                                     NOTICE
                                                       This opinion is subject to further
                                                       editing and modification.   The final
                                                       version will appear in the bound
                                                       volume of the official reports.
No.         2013AP2107-CR
(L.C. No.      2013CT418)

STATE OF WISCONSIN                                 :            IN SUPREME COURT

State of Wisconsin,

                Plaintiff-Respondent-Petitioner,                          FILED
        v.                                                             MAY 5, 2015
Dean M. Blatterman,                                                     Diane M. Fremgen
                                                                     Clerk of Supreme Court
                Defendant-Appellant.




        REVIEW of a decision of the Court of Appeals.                    Reversed.


        ¶1      PATIENCE DRAKE ROGGENSACK, C.J.              We review a decision
of    the     court   of    appeals1   that   reversed      the    circuit      court's2

ruling that admitted test results from a blood draw conducted
after       police    transported      Dean   M.   Blatterman       to    a   hospital.
Officers conducted an investigatory stop of Blatterman's vehicle
that was grounded in a call from Blatterman's wife.                        Police were
concerned with possible carbon monoxide poisoning and possible

        1
       State v. Blatterman, No. 2013AP2107-CR, unpublished slip
op. (Wis. Ct. App. Apr. 24, 2014).
        2
       The        Honorable     William       E.   Hanrahan       of     Dane      County
presiding.
                                                                         No.     2013AP2107-CR



intoxication        when    they    stopped        him.         After     being     stopped,
Blatterman        did   not    comply      with     police        orders.          Also,    he
complained of chest pain.                 Based on their observations and his
wife's concerns, police transported Blatterman to a hospital for
medical assessment and then conducted a legal blood draw.                                   In
addition,     before       transport,       an     officer       checked        Blatterman's
driving record and learned that he had three prior operating
while intoxicated (OWI) convictions.                     This reduced his threshold
for   a    prohibited      alcohol     concentration3            (PAC)    from     0.08%   to
0.02%.4     Results of the blood test demonstrated Blatterman had
operated his vehicle with a PAC.
      ¶2     We     conclude       that    Blatterman's           stop    and      detention

satisfied the reasonableness requirement of the Fourth Amendment
of the United States Constitution and Article I, Section 11 of
the   Wisconsin         Constitution       because        they     were        supported    by
reasonable        suspicion    to    conduct        an    investigatory           detention.
Blatterman's       arrest,     which      occurred       when    Deputy        James   Nisius
transported         Blatterman       to      the         hospital,        satisfied        the


      3
       Wisconsin Stat. § 340.01(1v) (2011–12) defines alcohol
concentration relative to blood volume as "grams of alcohol per
100 milliliters of a person's blood." All subsequent references
to the Wisconsin Statutes are to the 2011-12 version unless
otherwise indicated.
      4
       Wisconsin   Stat.  § 340.01(46m)(c)  defines  prohibited
alcohol concentration as "an alcohol concentration of more than
0.02" for persons who have three or more "prior convictions,
suspensions or revocations, as counted under s. 343.307(1)."
There is no dispute that Blatterman was subject to the .02 PAC
standard under § 340.01(46m)(c).



                                             2
                                                                        No.    2013AP2107-CR



reasonableness requirement of the Fourth Amendment of the United
States Constitution and Article I, Section 11 of the Wisconsin
Constitution because Deputy Nisius then had probable cause to
arrest     Blatterman.         Furthermore,            the     transportation        to   the
hospital was lawful as a community caretaker function of law
enforcement.          Accordingly,         we       reverse    the     court   of   appeals
decision5     that         reversed      the         circuit     court's       denial     of
Blatterman's motion to suppress.
                                    I.     BACKGROUND
      ¶3     On March 19, 2013, Deputy Nisius of the Dane County
Sheriff's     Department       and       several       other     officers      received     a
dispatch that advised Nisius and the other officers that it had

been reported to law enforcement that Blatterman was bringing
gas into his house through a stove or fireplace to try to blow
up   the    house     or    light     it    on       fire.       The    complainant       was
Blatterman's wife.            While Nisius was responding to the call,
dispatch updated Nisius that Blatterman was leaving the house in
a white minivan, with a specific license plate number.                              Dispatch
informed     Nisius    that    Blatterman            was   possibly      intoxicated      and
had, in the past, mentioned "suicide by cop."
      ¶4     Soon     thereafter,        Nisius       observed       Blatterman's     white
minivan approaching him.                 Nisius allowed the minivan to pass
him, made a U-turn, and followed Blatterman.




      5
          Blatterman, No. 2013AP2107-CR, unpublished slip op., ¶34.



                                                3
                                                          No.    2013AP2107-CR



     ¶5      Blatterman did not violate any traffic laws.                Nisius
did not immediately stop the van because Blatterman may have
been intoxicated, allegedly tried to ignite his house, and had
previously    mentioned   suicide    by   cop.    Instead,      he    contacted
other officers in order to conduct a high-risk stop.6
     ¶6      When other officers arrived, Nisius turned on his red
and blue lights and the van pulled over.           Other officers pulled
up next to Nisius's vehicle on each side, bringing the total
number of officers involved and squad cars present to three.
The back-up officers opened their doors, drew their weapons, and
pointed them at the van.      Nisius directed Blatterman to turn off
the vehicle, to open the driver's side window, and to put his

hands outside.
     ¶7      Instead,   Blatterman   immediately    opened      the    driver's
side door and began walking toward the officers with his hands
in   the   air.     Blatterman's     actions     were    contrary      to   the
instructions yelled by all of the officers.             One of the back-up
officers transitioned from his duty weapon to a Taser, and told
Blatterman that he would use the Taser on him if he did not stop
walking.     Blatterman stopped, approximately six to eight feet
away from the bumper of Nisius's squad car.             A back-up officer
instructed Blatterman to turn away and get down onto the ground.
Blatterman did not turn away, but did kneel down.                Two back-up


     6
       High risk stops involve officers stopping a vehicle in a
safe manner when someone in the vehicle may present harm to
himself, others, or involved officers.



                                     4
                                                                             No.   2013AP2107-CR



officers forced Blatterman to the ground.                                Nisius handcuffed
Blatterman          and    searched      him    for    weapons.         After      the    search,
Nisius asked if Blatterman was okay.                           Blatterman said that his
chest        hurt,       and   the      officers       requested        emergency         medical
services (EMS).
        ¶8       Blatterman was wearing only a short-sleeve shirt and
jeans with boots despite the cold weather at the time of the
stop.        Nisius smelled alcohol on Blatterman and noticed his eyes
were watery.              The officers placed Blatterman in the back of
Nisius's squad car because it was "freezing" outside.                                    The back
doors       of     the    squad   car    did     not   open     from    the     inside.       EMS
arrived several minutes later, but Blatterman refused medical

attention.
        ¶9       Nisius        considered         Blatterman's              possible       carbon
monoxide         poisoning,       his    chest     pain,       that    he    was   potentially
suicidal, and decided Blatterman "should get checked out at the
hospital."           Nisius asked Blatterman what hospital he wanted to
go to and Blatterman responded that his doctor was associated
with St. Mary's.               After EMS was finished and before Blatterman
was     moved        from      the      scene     of     the     stop,       Nisius       checked
Blatterman's driving record.                    He found that Blatterman had three
prior        OWI     convictions.7              Nisius     also       was    concerned       that
        7
       Nisius testified "That [Blatterman] had two prior or three
prior convictions for OWI."    The circuit court found that when
Nisius ran Blatterman's driving record, he found three prior OWI
convictions.   We uphold the circuit court's findings of fact
unless they are clearly erroneous.     State v. Pinkard, 2010 WI
81, ¶12, 327 Wis. 2d 346, 785 N.W.2d 592.


                                                  5
                                                                                 No.     2013AP2107-CR



Blatterman was intoxicated because of "his strange behavior by
not responding to officers who are pointing weapons on you or at
you," the odor of alcohol, watery eyes, and information from
dispatch that he may be intoxicated.
      ¶10     Nisius     took       Blatterman            to     St.       Mary's,       which      was
approximately ten miles from the scene of the stop.                                     He informed
the   staff    that     his     reasons         for    bringing            Blatterman          to    the
hospital were physical and psychological medical concerns, and
that he would "potentially [have] a need for a phlebotomist to
do a legal blood draw."                  While Blatterman remained handcuffed,
St.   Mary's    staff     examined         him       for       potential         carbon     monoxide
poisoning and chest pain and did not find any medical concern.

The assessment included questions about whether Blatterman was
suicidal.      Blatterman denied being suicidal and claimed his wife
was just trying to get him in trouble.
      ¶11     After    the    medical          assessment            was    completed,          Nisius
removed     Blatterman's           handcuffs          and       had        him     perform       field
sobriety      tests     in     the       exam        room.            Hospital          staff       drew
Blatterman's        blood.         The     test      of     Blatterman's               blood    sample
showed his blood alcohol concentration was 0.118%, well over the
threshold      of     0.02%    for       the     PAC       imposed         by    his     prior       OWI
convictions.
      ¶12     Blatterman was charged with OWI, fourth offense, in
violation      of      Wis.        Stat.       § 346.63(1)(a)                and        Wis.     Stat.

§ 346.65(2)(am)(4).             Blatterman also was charged with a PAC,
fourth      offense,          in      violation                of      § 346.63(1)(b)               and
§ 346.65(2)(am)(4).                Because        this         was     Blatterman's             fourth
                                                 6
                                                                             No.     2013AP2107-CR



offense under § 346.65(2)(am)(4) and Wis. Stat. § 939.60, the
crime was a misdemeanor.
       ¶13   Blatterman      moved    for       suppression             of    the     blood    test
results,     claiming      that   his       transportation               to        the     hospital
amounted to an arrest unsupported by probable cause.                                      The court
considered whether the transport was within the vicinity under
State v. Quartana, and whether Nisius's purpose in transporting
Blatterman was reasonable.            State v. Quartana, 213 Wis. 2d 440,
570 N.W.2d 618 (Ct. App. 1997).                  The court concluded ten miles
was within the vicinity.             See id. at 446-47.                  As for reasonable
suspicion    for    the    stop   and      transport,             the    court       noted     that
dispatch     said   Blatterman       was    filling           a    house           with    gas,   he

possibly was intoxicated, and he had talked about suicide by cop
in the past.        The court noted that after stopping Blatterman,
"there was       nothing that the defendant did that would dispel the
notion    that     it    was——that    it    was        safe       for        the    officers      to
interact with the defendant," because Blatterman did not follow
instructions.       The court also noted that Blatterman's complaints
of chest pain, his wearing a short-sleeve shirt without a jacket
in cold weather, as well as Nisius's belief that Blatterman may
have exposed himself to carbon monoxide supported transport to
the hospital.           The court concluded that the officer's actions
were     objectively       reasonable.             The        circuit              court     denied
Blatterman's motion to suppress the blood test results and he
pled guilty to the OWI charge.
       ¶14   Blatterman      appealed.           The    court       of        appeals       focused
primarily on whether transportation outside the vicinity of the
                                            7
                                                                             No.     2013AP2107-CR



stop transformed the initial investigatory detention into a "de
facto arrest" in violation of the Fourth Amendment.                                       State v.
Blatterman, No. 2013AP2107-CR, unpublished slip op., ¶18 (Wis.
Ct.   App.     Apr. 24,       2014).             The      court     of   appeals      held      that
Blatterman's transportation to the hospital was not within the
vicinity,      exceeded       the        scope    of      investigatory       detention,         and
violated Blatterman's Fourth Amendment rights.                             Id., ¶¶27, 33.
      ¶15     The State petitioned for review, which we granted.
                                         II.   DISCUSSION
                                A.       Standard of Review
      ¶16     We review the circuit court's denial of Blatterman's
motion to suppress.              When we review a decision on a motion to

suppress      evidence,        we    uphold          a    circuit    court's       findings       of
historical fact unless they are clearly erroneous.                                     State v.
Pinkard,      2010    WI   81,       ¶12,      327       Wis. 2d    346,    785    N.W.2d       592.
However, we review the application of constitutional principles
to    those    facts       independently,                as    questions     of     law.         Id.
Accordingly,         whether     there         was       probable    cause    for     arrest      or
whether an officer's community caretaker function satisfies the
Fourth Amendment and Article I, Section 11 of the federal and
state Constitutions are questions for our independent review.
Village of Elkhart Lake v. Borzyskowski, 123 Wis. 2d 185, 189,
366 N.W.2d 506 (Ct. App. 1985); State v. Kramer, 2009 WI 14,
¶16, 315 Wis. 2d 414, 759 N.W.2d 598.
                           B.       Investigatory Detention
      ¶17     We     assume         without          deciding       that     there        was    not
sufficient         evidence         to     support            probable     cause     to     arrest
                                                  8
                                                                    No.    2013AP2107-CR



Blatterman when the officers stopped his vehicle.                         However, the
officers' temporary investigative stop was a seizure within the
meaning of the Fourth Amendment and Article I, Section 11 of the
federal and state Constitutions.                    See State v. Arias, 2008 WI
84, ¶29, 311 Wis. 2d 358, 752 N.W.2d 748; State v. Williams,
2001 WI 21, ¶18, 241 Wis. 2d 631, 623 N.W.2d 106.                         Accordingly,
the State bears the burden of proving that the seizure complied
with the Fourth Amendment and Article I, Section 11.                         See State
v. Harris, 206 Wis. 2d 243, 263, 557 N.W.2d 245 (1996).
        ¶18   Pursuant to Terry v. Ohio, 392 U.S. 1 (1968), a police
officer may, under certain circumstances, temporarily detain a
person for purposes of investigating possible criminal behavior

even though there is not probable cause to make an arrest.                            Id.
at 22; State v. Chambers, 55 Wis. 2d 289, 294, 198 N.W.2d 377
(1972).         The     Wisconsin       Legislature            codified    the      Terry
constitutional        standard   in     Wis.      Stat.    § 968.24.          When     we
interpret § 968.24, we rely on Terry and the cases following it.
State    v.   Jackson,     147   Wis. 2d         824,   830-31,     434    N.W.2d     386
(1989).
        ¶19   According    to    Wis.       Stat.    § 968.24,      an    officer    may
conduct a temporary investigatory detention when "the officer
reasonably      suspects    that      [a]    person       is    committing    . . .     a
crime."       § 968.24.     Here, dispatch informed the officers that
according to Blatterman's wife, Blatterman had attempted to blow
up their home by drawing gas into the house and that he may be
intoxicated.      The officers reasonably suspected that Blatterman


                                             9
                                                                         No.     2013AP2107-CR



had committed a crime.                 Accordingly, § 968.24 authorized the
officers to temporarily detain Blatterman for questioning.
        ¶20   Working     from        our     conclusion         that     the        officers'
temporary detention of Blatterman was supported by reasonable
suspicion, we next consider whether the length of the stop was
reasonable.         See Florida v. Royer, 460 U.S. 491, 499 (1983)
(stating that unreasonably prolonged detentions may violate the
Fourth Amendment absent probable cause).                        We must "guard against
police    conduct     which      is    overbearing         or    harassing,          or   which
trenches       upon     personal            security       without        the        objective
evidentiary        justification        which       the    Constitution             requires."
Terry, 392 U.S. at 15.             "[T]he police [may not] seek to verify
their     suspicions    by    means          that    approach      the        conditions     of
arrest."      Royer, 460 U.S. at 499.                  Consequently, the detention
"must    be   temporary      and      last    no    longer      than    is     necessary     to
effectuate the purpose of the stop."                   Id. at 500.
        ¶21   In   determining         whether       the     length      of     a    stop    is
permissible, it is "appropriate to examine whether the police
diligently pursued a means of investigation that was likely to
confirm or dispel their suspicions quickly, during which time it
was necessary to detain the [person]."                     United States v. Sharpe,
470 U.S. 675, 686 (1985).                   "In making this assessment, courts
should not indulge in unrealistic second-guessing.                             In assessing
a detention's validity, courts must consider the totality of the
circumstances——the        whole         picture,        because         the     concept      of
reasonable suspicion is not readily, or even usefully, reduced
to a neat set of legal rules."                      State v. Wilkens, 159 Wis. 2d
                                              10
                                                                                No.     2013AP2107-CR



618, 626, 465 N.W.2d 206 (Ct. App. 1990) (internal quotation
marks and citations omitted).
       ¶22     In the instant case, the duration of Blatterman's stop
was reasonable.              Nisius diligently pursued his investigation.
He    called    an        officer    at        Blatterman's         residence          for    further
information;         he     checked       Blatterman's            driving       record;       and    he
interacted          with    Blatterman          due     to       what    appeared       to     be    an
emerging medical concern.                  He also sought medical attention for
Blatterman          and    waited        for     EMS       and     EMS's       interaction       with
Blatterman.          Medical attention is a valid reason to extend an
investigatory detention.                  State v. Colstad, 2003 WI App 25, ¶17,
260 Wis. 2d 406, 659 N.W.2d 394.

       ¶23     In    Colstad,        a    chaotic          accident       scene       required      the
attention      of     the        police    officer          who    stopped        Colstad.          Id.
Colstad had to wait 30 to 45 minutes for questioning to resume.
Id.     The court of appeals held the length of detention was
reasonable and noted that the officer spent considerable time
providing       medical           assistance          to     the        accident       victim       and
investigating         the    scene.            Id.         Similarly,       here,       time    spent
waiting      for     and    attempting          to     provide      medical        assistance        to
Blatterman         did     not    cause     the       length       of    the    stop     to    become
unreasonable.
       ¶24     Blatterman's          stop       and     detention          were       supported      by
reasonable suspicion and lasted a reasonable length of time.                                         We
next consider whether Nisius's transportation of Blatterman was
within the vicinity of the stop and therefore, within the scope
of an investigatory detention.                         Quartana, 213 Wis. 2d at 446.
                                                  11
                                                                  No.   2013AP2107-CR



We also note that the express language of Wis. Stat. § 968.24,
provided in full below,8 authorizes police to question a suspect
"in the vicinity where the person was stopped" during the course
of an investigatory detention.                 The police may, where reasonable
grounds exist, "move a suspect in the general vicinity of the
stop       without   converting     what   would     otherwise    be    a   temporary
seizure into an arrest."             Id.       Therefore, when a person who is
temporarily detained for investigation pursuant to a Terry stop
and is then moved to another location, courts conduct a two-part
inquiry:       "First, was the person moved within the 'vicinity' [of
the stop]?          Second, was the purpose in moving the person within
the vicinity reasonable?"           Id.

       ¶25     In    Quartana,    the     court    of   appeals   referred      to    a
dictionary to define "vicinity" to mean "a surrounding area or
district"       or    "locality."        Id.    (quoting   Webster's        Third   New
International Dictionary:               Unabridged 2550 (1976)).            The court
concluded that the officer's transportation of Quartana between
his house and the accident scene one mile away was within the

       8
           Wis. Stat. § 968.24 provides:

       Temporary questioning without arrest.     After having
       identified himself or herself as a law enforcement
       officer, a law enforcement officer may stop a person
       in a public place for a reasonable period of time when
       the officer reasonably suspects that such person is
       committing, is about to commit or has committed a
       crime, and may demand the name and address of the
       person and an explanation of the person's conduct.
       Such detention and temporary questioning shall be
       conducted in the vicinity where the person was
       stopped.



                                           12
                                                                                 No.        2013AP2107-CR



"surrounding area" or "locality."                            Id. at 447.         The court noted
that the accident scene was within walking distance of the home,
even in the winter, and that Quartana had initially walked from
the scene to his home.                   Id. at 444, 447.
        ¶26        In     the     case     now     before        us,       Nisius        transported
Blatterman from where he was stopped to a hospital ten miles
away.              We     conclude        that     ten        miles       is    too         distant    a
transportation             to     be     within        the     vicinity        so      long     as    the
temporary detention is supported by no more than a reasonable
suspicion.9             A transportation of ten miles from the place of the
stop is not within "a surrounding area or district," or the
"locality."               See     id.     at     446    (quoting          Webster's         Third     New

International             Dictionary:            Unabridged          2550).         We      decline    to
determine           the    precise        outer        limits        of   the       "vicinity"        for
purposes of transportation during an investigatory detention.
        ¶27        Unpublished          cases     interpreting            Quartana,         while     not
precedential, support our interpretation that the vicinity is
less        than    a     ten-mile       distance.             See    State      v.      Burton,      No.
2009AP180,              unpublished       slip         op.,     ¶¶14–15         (Wis.        Ct.     App.
Sept. 23,          2009)        (concluding       officer's          transport         of     defendant
eight       miles       from     accident       scene     to    hospital        to     continue       OWI
investigation, while handcuffed, was not within the vicinity);


        9
       The circuit court concluded that ten miles was within the
vicinity. While the circuit court characterized this conclusion
as a finding of fact, we conclude that it was a conclusion of
law, which we review independently.    Pinkard, 327 Wis. 2d 346,
¶12.



                                                   13
                                                                             No.    2013AP2107-CR



State v. Doyle, No. 2010AP2466–CR, unpublished slip op., ¶13
(Wis.        Ct.     App.      Sept. 22,       2011)     (concluding         that    four     mile
transportation was "at the outer limits of the definition of
'vicinity'").
        ¶28        Since       Nisius     transported           Blatterman          beyond     the
vicinity       of        the   original       stop,     we    need    not    inquire    whether
Nisius's       purpose         in    moving    Blatterman        was    reasonable.10          See
Quartana, 213 Wis. 2d at 446.                     Furthermore, because transporting
Blatterman to the hospital was not in the vicinity of the Terry
stop, in order to be lawful, it must have been supported by
probable cause to arrest or by a reasonable exercise of the
community caretaker function.11

                               C.    Probable Cause to Arrest
        ¶29        Given our conclusion that Blatterman's transportation
was outside the scope of a temporary investigatory detention,
our     next         inquiry         is   whether        Nisius's       transportation          of
Blatterman was supported by probable cause to arrest.                                        It is
necessary           to     determine       when        the    arrest        occurred    because
"[p]robable          cause      to    arrest    . . .        refers    to    that    quantum    of
evidence within the arresting officer's knowledge at the time of


        10
       We note that the parties' arguments seem to assume that
there was a hospital that was closer than ten miles from the
location of the traffic stop in which to address Blatterman's
emerging medical issues.
        11
       We do not address a circumstance wherein exigent
circumstances would bear on the reasonableness of a defendant's
transportation during a Terry stop.



                                                  14
                                                                        No.    2013AP2107-CR



the arrest that would lead a reasonable law enforcement officer
to believe that the defendant was operating a motor vehicle [at
a prohibited alcohol concentration]."12                 State v. Lange, 2009 WI
49, ¶19, 317 Wis. 2d 383, 766 N.W.2d 551.
                              1.    Timing of arrest
      ¶30    In Wisconsin, the test for whether a person has been
arrested     is    whether    a    "reasonable    person          in    the    defendant's
position     would    have    considered      himself    or       herself      to   be   'in
custody,'         given      the    degree       of      restraint             under     the
circumstances."           State v. Swanson, 164 Wis. 2d 437, 447, 475
N.W.2d 148 (1991), abrogated on other grounds by State v. Sykes,
2005 WI 48, 279 Wis. 2d 742, 695 N.W.2d 277.                       "The circumstances

of the situation including what has been communicated by the
police     officers,      either   by   their    words       or    actions,      shall    be
controlling under the objective test."                 Id.
      ¶31    Blatterman       argues    that     his     transportation             to   the
hospital while handcuffed amounted to an arrest.                              Although the
use   of    handcuffs        is    certainly     restrictive,            it     "does    not
necessarily        render     a    temporary     detention             unreasonable      [or
transform a] detention into an arrest."                  State v. Pickens, 2010
WI App 5, ¶32, 323 Wis. 2d 226, 779 N.W.2d 1.                          However, for such
measures to be reasonable, they must be justified by particular


      12
       State v. Lange, 2009 WI 49, 317 Wis. 2d 383, 766 N.W.2d
551, is grounded in "operating while under the influence of an
intoxicant."   Id., ¶19.  Blatterman was arrested for both OWI
and PAC.     Our probable cause analysis focuses on the PAC
violation.



                                         15
                                                                                No.     2013AP2107-CR



circumstances, such as the risk of harm to the officers.                                               See
State    v.    Vorburger,          2002     WI    105,     ¶65,        255     Wis. 2d         537,    648
N.W.2d 829.
        ¶32    Here,     Blatterman          repeatedly               failed     to    follow         the
officers' instructions, and dispatch informed the officers that
Blatterman had mentioned suicide by cop, causing concern that
their     interactions            with    him      could       escalate         into       a    violent
confrontation.          Therefore, the use of handcuffs and detention in
the    squad    car     are       not     sufficient         to       transform        Blatterman's
investigatory          detention         into      an    arrest.             Furthermore,             even
though the officers approached Blatterman at gunpoint, this did
not transform the investigatory stop into an arrest.                                           Jones v.
State, 70 Wis. 2d 62, 70, 233 N.W.2d 441 (1975) (explaining that
an    officer    drawing           a    weapon     during         a    Terry     stop          does    not
transform the stop into an arrest).
        ¶33    Though    Blatterman's             handcuffing           and     detention         alone
did not transform his temporary investigatory detention into an
arrest, we conclude Blatterman was arrested at the time of his
transportation          to        the     hospital.             Upon         transportation,             a
reasonable person in Blatterman's position would have believed
that     he    was      in        custody        due    to     an       arrest        because         his
transportation          was       involuntary,           and      he     had        experienced         a
significant level of force and restraint since the initial stop.
See Vorburger, 255 Wis. 2d 537, ¶68 (concluding that "we use an
objective test, assessing the totality of the circumstances, to
determine      whether        a    seizure       has     escalated           into     an       arrest");
State v. Burton, No. 2009AP180, unpublished slip op., ¶19 (Wis.
                                                  16
                                                                        No.     2013AP2107-CR



Ct.   App.      Sept. 23,      2009)    (concluding        "[a]       reasonable       person
would        [understand]     that    the    level    of       restraint,      duration      of
custody, and diminishing potential for release amounted to a
formal arrest").
                                 2.    Probable cause
        ¶34     Warrantless      arrests      are     unlawful         unless     they      are
supported by probable cause.13                      Lange, 317 Wis. 2d 383, ¶19.
"Probable        cause   to    arrest       . . .    refers      to    that     quantum     of
evidence within the arresting officer's knowledge at the time of
the arrest that would lead a reasonable law enforcement officer
to believe that the defendant was operating a motor vehicle [at
a prohibited alcohol concentration]."                      Id.        "The burden is on
the state to show [it] had probable cause to arrest."                            Id.
        ¶35     In    determining      whether       probable         cause     exists,     we
examine the totality of the circumstances and consider whether
the police officer had "facts and circumstances within his or
her   knowledge        sufficient      to    warrant       a    reasonable       person     to
conclude       that    the    defendant      . . .    committed        or     [was]    in   the
process of committing an offense."                      State v. Richardson, 156
Wis. 2d 128, 148, 456 N.W.2d 830 (1990).                           The probable cause
requirement "deals with probabilities" and must be sufficient


        13
       State v. Secrist, 224 Wis. 2d 201, 209, 212, 589 N.W.2d
387 (1999) ("Under both the Fourth Amendment and Article I, § 11
of the Wisconsin Constitution, probable cause must exist to
justify an arrest. . . . Probable cause is the sine qua non of
a lawful arrest.") (internal quotation marks and citation
omitted).



                                             17
                                                                      No.    2013AP2107-CR



"to lead a reasonable officer to believe that guilt is more than
a possibility."         Borzyskowski, 123 Wis. 2d at 189; accord State
v. Drogsvold, 104 Wis. 2d 247, 254, 311 N.W.2d 243 (Ct. App.
1981).        This    standard    is    case-specific:            "[t]he     quantum     of
information which constitutes probable cause to arrest must be
measured by the facts of the particular case."                        State v. Paszek,
50 Wis. 2d 619, 625, 184 N.W.2d 836 (1971) (citing Wong Sun v.
United States, 371 U.S. 471 (1963)).
        ¶36   Police may properly consider prior convictions in a
probable cause determination.                State v. Goss, 2011 WI 104, ¶24,
338 Wis. 2d 72, 806 N.W.2d 918 (evaluating probable cause to
request a preliminary breath test); Lange, 317 Wis. 2d 383, ¶33

(evaluating probable cause to arrest).                        Prior convictions are
especially relevant in this case because the statute reduced the
PAC   threshold       applicable       to    Blatterman       from    0.08%     to    0.02%
alcohol concentration.            Goss, 338 Wis. 2d 72, ¶24; Wis. Stat.
§ 340.01(46m)(c)            (defining       PAC    as     more       than     0.02%     for
individuals with three or more prior convictions).
        ¶37   Here,    Nisius     checked         Blatterman's        driving      record,
which     showed       three     prior       OWI       convictions      that       lowered
Blatterman's          PAC      threshold          to     0.02%.             Wis.      Stat.
§ 340.01(46m)(c).           Nisius observed Blatterman's repeated failure
to    follow    the    officers'        orders.          Nisius      also    knew,     from
dispatch,      that    Blatterman        possibly       was    intoxicated.            Once
officers had restrained Blatterman, Nisius detected the odor of
alcohol on Blatterman's person and observed his watery eyes.


                                             18
                                                                                     No.        2013AP2107-CR



      ¶38     By     the       time        Nisius          transported          Blatterman            to     the
hospital,      Nisius           had           ascertained           Blatterman's                prior        OWI
conviction record and, together with information from dispatch
and   his    own     observations,                  had    established          probable          cause       to
arrest      Blatterman         for        a    0.02%        PAC    violation.               Accordingly,
Blatterman's arrest when he was transported to the hospital was
lawful and did not violate his rights under the Fourth Amendment
and   Section           I,     Article              11      of     the     federal              and        state
Constitutions.            See Lange, 317 Wis. 2d 383, ¶19.
                          D.    Community Caretaker Exception
      ¶39     The       federal       and        state      Constitutions                protect      persons
against unreasonable seizures.                            Arias, 311 Wis. 2d 358, ¶13.                        We

"have recognized that a police officer serving as a community
caretaker          to        protect             persons           and         property            may        be
constitutionally permitted to perform" seizures without probable
cause.        Pinkard,           327          Wis. 2d        346,        ¶14        (citing        Cady       v.
Dombrowski,         413      U.S.         433,       448    (1973));           accord       Kramer,          315
Wis. 2d      414,       ¶18.          A       law     enforcement          officer          exercises          a
community     caretaker           function,               rather    than        a    law     enforcement
function, when an "officer discovers a member of the public who
is in need of assistance."                       Kramer, 315 Wis. 2d 414, ¶32.                           It is
the State's burden to prove that the officer's conduct is a
reasonable community caretaker function.                                 Id., ¶17.
      ¶40     In the case before us, we discuss the applicability of
the community caretaker exception as an alternative ground for
the   officer's          transportation               of     Blatterman             to    the     hospital,
assuming arguendo, that the officer's arrest of Blatterman was
                                                      19
                                                                      No.       2013AP2107-CR



unsupported by probable cause.                    We "interpret the provisions of
the Fourth Amendment and Article I, Section 11 as equivalent in
regard to community caretaker analyses."                      Id., ¶18.          Therefore,
"we look to the United States Supreme Court's interpretation of
the community caretaker exception."                    Pinkard, 327 Wis. 2d 346,
¶14 (citing Kramer, 315 Wis. 2d 414, ¶18).
        ¶41    The community caretaker exception has its origins in
Cady.        In Cady, Dombrowski's car was disabled by an accident and
sitting on the side of a road.                     Cady, 413 U.S. at 435-36.               The
responding officers knew Dombrowski was a Chicago police officer
and believed he was required to carry a service revolver at all
times.        Id. at 436.         The officers conducted a warrantless search

"to    protect       the    public    from   the     possibility     that       a    revolver
would fall into untrained or perhaps malicious hands."                                Id. at
443.         The Court upheld the warrantless search, providing the
following rationale:

        Local   police   officers,   unlike   federal   officers,
        frequently investigate vehicle accidents in which
        there is no claim of criminal liability and engage in
        what, for want of a better term, may be described as
        community caretaking functions, totally divorced from
        the   detection,   investigation,   or   acquisition   of
        evidence relating to the violation of a criminal
        statute.
Id.     at    441.         Soon    after,    we     first   applied       the       community
caretaker exception in Bies v. State, 76 Wis. 2d 457, 251 N.W.2d
461 (1977).           In Bies, we noted that "[a]s a general matter
[checking       noise      complaints]       is    probably   more    a     part      of   the
community caretaker function of the police which, while perhaps


                                              20
                                                                            No.       2013AP2107-CR



lacking in some respects the urgency of criminal investigation,
is nevertheless an important and essential part of the police
role."       Id. at 471.
       ¶42     In     Kramer,     we       adopted     a     three-component            test    for
evaluating potential community caretaker functions.                                Kramer, 315
Wis. 2d 414, ¶21.             When the State asserts a community caretaker
function as the basis for a seizure, the circuit court must
determine:           "(1)    that      a    seizure    within       the     meaning        of    the
[F]ourth [A]mendment has occurred; (2) if so, whether the police
conduct was [a] bona fide community caretaker [function]; and
(3) if so, whether the public . . . interest outweigh[s] the
intrusion [on] the privacy of the individual."                                    Id. (quoting
State v. Anderson, 142 Wis. 2d 162, 169, 417 N.W.2d 411 (Ct.
App. 1987)).          We now apply the Kramer test.
                                           1.   Seizure
       ¶43     A seizure within the meaning of the Fourth Amendment
occurred here.             We assume for the purposes of this discussion
that     the       officer     did     not      have       probable     cause         to   arrest
Blatterman at that time.                   See Vorburger, 255 Wis. 2d 537, ¶68.
Accordingly, our discussion of the community caretaker exception
focuses       on     whether     the       officer     was     exercising         a     community
caretaker function at the time of Blatterman's transportation.
However,       as     we     explain        further        below,     the    officer           began
exercising          his    community        caretaker        function       earlier        in    his
interaction          with      Blatterman        and       therefore,        our        community
caretaker analysis begins before Blatterman's transportation.


                                                21
                                                                    No.     2013AP2107-CR



                 2.   Bona fide community caretaker function
      ¶44    The second component in reviewing whether an officer
was acting as a community caretaker requires the officer to be
engaged     in    a   bona    fide    community    caretaker        function      if    the
officer's conduct is to be upheld.                Kramer, 315 Wis. 2d 414, ¶23
(citing State v. Kelsey C.R., 2001 WI 54, ¶35, 243 Wis. 2d 422,
626 N.W.2d 777).            In evaluating this component, we examine the
totality of the circumstances as they existed at the time of the
police conduct.          Id., ¶30 (citing Cady, 413 U.S. at 440).                           We
have rejected the contention that community caretaker functions
must be totally independent from the detection, investigation,
or   acquisition       of    evidence    relating      to    the    commission         of    a

crime.      Id.       Rather, we have concluded that "in a community
caretaker context, when under the totality of the circumstances
an   objectively        reasonable      basis   for    the    community        caretaker
function    is     shown,    that     determination     is    not       negated   by    the
officer's subjective law enforcement concerns."                     Id.
      ¶45    Here, we conclude that the officer was engaged in a
bona fide community caretaker function.                      The officer began to
exercise     his      community      caretaking   function         shortly     after        he
stopped Blatterman's vehicle.               Our conclusion is based on the
circuit court's findings of fact14 that dispatch informed the
officer     that      Blatterman      attempted   to    blow       up    his   house        by

      14
       The circuit            court did not decide whether Blatterman's
transport to the              hospital was undertaken as a community
caretaker function,           but the court did find that the officer's
medical concern for          Blatterman was justified.



                                          22
                                                                   No.     2013AP2107-CR



filling it with gas, that Blatterman may be intoxicated, and
that Blatterman had, in the past, talked of suicide by cop.15
The circuit court also found that Blatterman exhibited erratic
and disoriented behavior, he complained of chest pain, and he
was wearing only a short-sleeve shirt and jeans in very cold
weather.
     ¶46    The officer kept Blatterman handcuffed, placed him in
the back of a squad car, called EMS, and transported Blatterman
to the hospital after he refused EMS attention.                          The handcuffs
kept Blatterman from hurting himself or others if concerns about
his mental state were correct.                  Placing Blatterman in the back
of a squad car kept him out of the cold weather.                     Calling EMS to

assess     his     medical     condition       and    transporting        him     to    the
hospital         also   addressed        the         officer's     concerns            about
Blatterman's        possible    carbon     monoxide          poisoning,     his        self-
reported chest pain, his possible alcohol use, and his mental
health.      The totality of circumstances demonstrates that the
officer's        actions     were   undertaken          as    community         caretaker



     15
       Wisconsin's emergency detention statute, Wis. Stat.
§ 51.15, authorizes police officers to take an individual into
custody if they have "cause to believe that the individual is
mentally ill" and if that individual has demonstrated "[a]
substantial probability of physical harm to himself or herself"
or "[a] substantial probability of physical harm to other
persons."   § 51.15(1)1.-2. Though neither party addressed this
statute, it is worth noting that according to Horngren, police
action pursuant to § 51.15 is a community caretaker function.
State v. Horngren, 2000 WI App 177, ¶11, 238 Wis. 2d 347, 617
N.W.2d 508.



                                           23
                                                                             No.    2013AP2107-CR



functions, directly related to concern for Blatterman's physical
and mental health.        See Kramer, 315 Wis. 2d 414, ¶30.
       ¶47   We conclude that although Nisius held subjective law
enforcement      concerns,        as        we        have    explained          above,    those
subjective concerns did not negate the objectively reasonable
basis for a community caretaker function.                                  Id.     Officers may
base    their    actions        simultaneously               on     law      enforcement     and
community     caretaker    functions.                  We    have    repeatedly       explained
that    officers    are        charged       with           both     law     enforcement     and
community caretaker functions as part of their service of the
public.      Pinkard, 327 Wis. 2d 346, ¶53; Kramer, 315 Wis. 2d 414,
¶32.

       As an officer goes about his or her duties, an officer
       cannot always ascertain which hat the officer will
       wear——his   law  enforcement   hat   or her  community
       caretaker hat. . . .     Accordingly, the officer may
       have law enforcement concerns, even when the officer
       has an objectively reasonable basis for performing a
       community caretaker function.

            To   conclude    otherwise   would    ignore the
       multifaceted nature of police work and force police
       officers to let down their guard and unnecessarily
       expose themselves to dangerous conditions.
Kramer, 315 Wis. 2d 414, ¶¶32-33.                       Accordingly, we conclude that
the    officer   was   engaged         in    a        bona    fide    community       caretaker
function when he transported Blatterman to the hospital.
                          3.    Reasonableness balance
       ¶48   We now consider the third component:                                  "whether the
officer's exercise of a bona fide community caretaker function
was reasonable."       Id., ¶40 (citing Kelsey C.R., 243 Wis. 2d 422,


                                                 24
                                                                          No.    2013AP2107-CR



¶35).        We consider the third component by "balancing a public
interest      or    need    that    is    furthered      by    the       officer's   conduct
against the degree of and nature of the restriction upon the
liberty       interest      of    the    citizen."         Id.      (citing      Arias,   311
Wis. 2d 358, ¶32).               "The stronger the public need and the more
minimal the intrusion upon an individual's liberty, the more
likely the police conduct will be held to be reasonable."                                 Id.,
¶41.    We balance these interests by weighing four factors:

             (1) the degree of the public interest and the
        exigency   of  the    situation;   (2)   the  attendant
        circumstances surrounding the seizure, including time,
        location, the degree of overt authority and force
        displayed; (3) whether an automobile is involved; and
        (4) the availability, feasibility and effectiveness of
        alternatives  to   the   type   of  intrusion  actually
        accomplished.
Id. (quoting Kelsey C.R., 243 Wis. 2d 422, ¶36).
                       a.    public interest and exigency
        ¶49    The first factor is "the degree of the public interest
and    the    exigency      of     the   situation."          Id.         An    individual's
physical and mental health status is an issue of public interest

and presents an exigency when an officer reasonably determines
that    physical       or   mental       health    could      be    in     jeopardy.      See
Pinkard, 327 Wis. 2d 346, ¶¶47-48.
        ¶50    In   Pinkard,       officers       entered     a     residence      when   two

occupants       were     unconscious.             Id.,   ¶5.       In     weighing     public
interest and exigency as a factor to determine whether exercise
of     the     community         caretaker        function         was     reasonable,      we
considered the medical consequences of officers not exercising


                                             25
                                                                      No.   2013AP2107-CR



the community caretaker function.                    Id., ¶¶47-48.          "If Pinkard
and his companion had been suffering from a cocaine overdose, a
reasonable inference based on these facts, the officers were
presented with a significant exigency, for every passing minute
could have been the difference between life and death."                                Id.,
¶47.       Similarly,       here,   the    officer       reasonably     inferred       that
Blatterman         could    have    been    suffering        from    carbon     monoxide
poisoning or other serious illness, given the information from
dispatch that he had been exposed to some kind of gas and his
own statement that he had chest pain.
       ¶51    In State v. Horngren, 2011 WI App 177, 238 Wis. 2d
347, 617 N.W.2d 508, officers entered a residence in response to

a   call     that    an    individual      there     was    threatening        to   commit
suicide.       Id., ¶2.        When the court of appeals weighed public
interest and exigency as a factor to determine whether exercise
of the community caretaker function was reasonable, the court
stated that "the public good involved preventing a suicide, and
securing      medical      assistance      for   a   troubled        individual. . . .
The exigency of such a situation is obvious."                       Id., ¶¶14-15.
       ¶52    In    the    case     now    before    us,     the     officer    knew    of
Blatterman's previous remarks about suicide by cop.                          Though the
circumstances        here     differ      from     the     threats    of    suicide     in
Horngren, nevertheless they evidence a similar public interest
at stake and exigency presented to the officer.                        The public has
a substantial interest in police ensuring the well-being and
safety of citizens who may be suffering from health concerns
that present exigencies.               Accordingly, the first factor favors
                                            26
                                                                          No.   2013AP2107-CR



the     conclusion         that     the     officer       reasonably       performed      his
community caretaker function.
                             b.     attendant circumstances
        ¶53       In considering the second factor, whether the time,
location,         and     degree    of     authority      and   force      displayed    were
appropriate under the circumstances, we refer to the information
available to the officer at the time of the investigatory stop
and observations by the officer subsequent to the stop.                                      In
Pinkard, we "first note[d] that the officers did not control the
time of day or location," but were responding to a phone call.
Pinkard, 327 Wis. 2d 346, ¶49.                      Similarly, here, Blatterman's
seizure       stems     from      Nisius    being    dispatched      in    response     to    a

phone call by Blatterman's wife.
        ¶54       Nisius    and    the     other    officers       undeniably     displayed
overt        authority      and    force    when     they      stopped     Blatterman     and
handcuffed         him.      This    initial       show   of    authority,      exerted      by
three officers who were involved in the investigatory stop, was
based        on   reasonable       suspicion.16           Nisius    placed      Blatterman,
handcuffed, in the back of his squad car while he waited for EMS

        16
       The involvement of several officers during the stop does
not foreclose their exercise of a community caretaker function.
In Pinkard, we held that officers reasonably exercised their
community caretaker function when they entered and searched a
residence for two unconscious individuals. Pinkard, 327 Wis. 2d
346, ¶2. After receiving an anonymous tip about the unconscious
individuals, an officer thought the residence sounded like a
"drug house."    Id., ¶54.  We held that sending five officers
from the unit that performed narcotics investigations "was a
reasonable   precautionary  measure   to  prepare  for  another
eventuality." Id.



                                               27
                                                                     No.    2013AP2107-CR



because it was very cold outside and Blatterman was wearing a
short-sleeve       shirt    and    jeans        without     a   jacket       or    coat.
Blatterman     was   transported        to      the     hospital,      following      his
refusal to accept medical treatment from EMS, because Nisius
remained     concerned.           His      concern        was   reasonable         given
Blatterman's wife's report that he had attempted to blow up his
house by drawing gas inside; he possibly was intoxicated; he may
have had thoughts of suicide; he failed to follow the officer's
directives; and he had chest pain.
     ¶55     The   degree    of   force      and      display   of    authority     were
reasonable     given       the    officer's        concerns      for       Blatterman's
physical and mental health.                Therefore, we conclude that the

second factor favors the conclusion that the officer reasonably
performed his community caretaker function.
                                   c.   vehicle
     ¶56     The third factor addresses whether a person's privacy
interests were being invaded while he or she was in a vehicle.
Here, Blatterman's comments that his chest hurt could evidence a
heart condition, and his wife had reported that he may have been
drunk.     Medical assessment of both concerns was required because
if Blatterman were to have a heart attack or was intoxicated, he
could cause harm to other drivers, as well as to himself.                             See
Kramer, 315 Wis. 2d 414, ¶44.                   Furthermore, "a citizen has a
lesser   expectation       of    privacy     in    an   automobile."          State    v.
Ziedonis, 2005 WI App 249, ¶31, 287 Wis. 2d 831, 707 N.W.2d 565.
Accordingly, this factor weighs in favor of the conclusion that
the officer reasonably performed a community caretaker function.
                                           28
                                                                      No.     2013AP2107-CR



                                  d.    alternatives
      ¶57    Under the fourth factor, "we consider the feasibility
and availability of alternatives" to taking Blatterman to the
hospital.     Kramer, 315 Wis. 2d 414, ¶45.                   Blatterman argues that
calling the EMS was sufficient to address any medical concern.
However,     this       alternative,       which       stops      short       of      Nisius
transporting Blatterman to the hospital, fails to acknowledge
the circumstances surrounding Blatterman's stop.                             At the time
that officers took Blatterman into custody, he had refused to
comply    with    the    officers'       commands;      the     officers       also      were
concerned    about      possible       carbon    monoxide       poisoning,         possible
suicidal thoughts, and his chest pain.

      ¶58    As   we    have     explained       previously,         "[p]rinciples         of
reasonableness         demand     that    we     ask    ourselves           whether      'the
officers would have been derelict in their duty had they acted
otherwise.'"        Pinkard, 327 Wis. 2d 346, ¶59 (quoting State v.
Deneui, 775 N.W.2d 221, 239 (S.D. 2009)) (additional internal
quotation marks omitted).              For example, if the officer, despite
the   information       relayed    by    dispatch       and    his    observations         of
Blatterman    during      the    investigatory         stop,    had    facilitated         no
medical     assessment     and     Blatterman      or    another       member       of    the
community     were      injured,       Blatterman       and     others        would      have
understandably viewed the lack of medical assessment as shoddy
police work.      Id.     That Blatterman did not require treatment at
the hospital for any physical or mental health issue is not
relevant to our consideration.                  See id. (stating "'that, as it
turned out, no one was injured is of no moment'") (quoting State
                                           29
                                                                                No.     2013AP2107-CR



v. Hedley, 593 A.2d 576, 582 (Del. Super. Ct. 1990)).                                     Hindsight
is often 20/20.               Based on the circumstances relevant to this
inquiry, we conclude that the fourth factor also weighs in favor
of     concluding        that      the     officer             reasonably        exercised        his
community caretaker function.
       ¶59   We conclude that the officer was engaged in a bona
fide    community        caretaker       function          and      that    he    exercised        the
community caretaker function reasonably under the totality of
the    circumstances.              Therefore,             Nisius's         transportation           of
Blatterman    to        the     hospital       was    a    lawful        community        caretaker
function.
                                    III.       CONCLUSION

       ¶60   We     conclude        that       Blatterman's              stop    and      detention
satisfied the reasonableness requirement of the Fourth Amendment
of the United States Constitution and Article I, Section 11 of
the    Wisconsin        Constitution           because          they      were        supported     by
reasonable        suspicion       to     conduct          an     investigatory           detention.
Blatterman's        arrest,       which        occurred          when      Nisius       transported
Blatterman        to     the      hospital,           satisfied          the      reasonableness
requirement        of     the     Fourth       Amendment            of    the     United     States
Constitution        and       Article      I,        Section        11     of    the      Wisconsin
Constitution because Nisius then had probable cause to arrest
Blatterman.        Furthermore, the transportation to the hospital was
lawful as a community caretaker function of law enforcement.

Accordingly,       we     reverse        the    court          of   appeals       decision        that
reversed the circuit court's denial of Blatterman's motion to
suppress.
                                                30
                                                           No.   2013AP2107-CR



     By   the   Court.—The   decision   of   the   court    of   appeals   is
reversed.




                                   31
                                                               No.    2013AP2107-CR.akz


      ¶61    ANNETTE KINGSLAND ZIEGLER, J.                  (concurring).      I join
the majority opinion.           I write further to briefly explain why
the   officer    here     was   not     required       to     first    administer    a
preliminary breath test ("PBT") to Dean Blatterman in order to
have his blood tested at the hospital.1                 I also concur and write
separately      to   further     discuss     why       odor    alone     establishes
probable     cause   to   arrest      and   test   a    serial        offender,   like
Blatterman, who smells of intoxicants and is driving.                         We took
this case to do more than apply previously existing probable

cause principles.         We accepted review in this case to decide
whether there is probable cause to arrest and test a driver, who
is subject to the .02% alcohol concentration limit,2 based upon

odor of alcohol alone.

      1
       Blatterman's blood draw occurred before the United States
Supreme Court's decision in Missouri v. McNeely, 569 U.S. ___,
133 S. Ct. 1552 (2013).     In McNeely the United States Supreme
Court held that "the natural metabolization of alcohol in the
bloodstream [does not present] a per se exigency that justifies
an exception to the Fourth Amendment's warrant requirement for
nonconsensual   blood   testing  in  all   drunk-driving  cases."
Missouri v. McNeely, 569 U.S. ___, 133 S. Ct. 1552, 1556 (2013).
Thus, under McNeely, "[i]n those drunk-driving investigations
where police officers can reasonably obtain a warrant before a
blood sample can be drawn without significantly undermining the
efficacy of the search, the Fourth Amendment mandates that they
do so."   Id. at 1561 (citation omitted).     A warrantless blood
draw is constitutional under McNeely if justified by exigent
circumstances.    State v. Tullberg, 2014 WI 134, ¶¶41-51, 359
Wis. 2d 421, 857 N.W.2d 120.     However, we need not determine
whether exigent circumstances justified Blatterman's blood draw
because he does not rely on McNeely.     Further, the good faith
exception to the exclusionary rule would apply because the blood
draw occurred before McNeely.     See State v. Kennedy, 2014 WI
132, ¶¶35-37, 359 Wis. 2d 454, 856 N.W.2d 834; State v. Foster,
2014 WI 131, ¶¶47-58, 360 Wis. 2d 12, 856 N.W.2d 847.
      2
          "Alcohol concentration" means "[t]he number of grams of
                                                       (continued)
                                  1
                                                                     No.    2013AP2107-CR.akz


        ¶62    Why is it important to address this issue?                          The courts
and law enforcement face these real life determinations when
evaluating whether probable cause to arrest exists for a .02%
prohibited alcohol concentration ("PAC") offense, especially in
light of Missouri v. McNeely, 569 U.S. ___, 133 S. Ct. 1552
(2013).       For example, what if the officer had sought a warrant
to draw a suspected .02% PAC offender's blood based upon odor
alone?        Does     probable    cause       exist    or    not?         What    if   a   law
enforcement officer had asked a suspected offender——known to be

a repeat operating-while-intoxicated ("OWI") offender, subject
to a .02% PAC legal limit and smelling of intoxicants——to submit
to a PBT, and the PBT was refused?                   Would the suspect be free to
leave?        Are officers on scene always required to obtain a PBT
from a suspected .02% PAC offender?                       If a PBT is refused, is
that, coupled with odor, enough for probable cause?                               What if the
officer does not have a PBT device?                       Are officers without the
lawful       ability    to   pursue      whether       such   chronic       offenders       are

committing the crime of operating with a .02% PAC or above?3
What exactly is required to establish probable cause for the
stand-alone crime, operating in violation of a .02% PAC limit?
We should explain what we expect of our law enforcement and the
courts.       Now is the time to answer those pressing questions.                             I
would       conclude     that     odor    of       intoxicants       alone        establishes


alcohol per 100 milliliters of a person's blood" or "[t]he
number of grams of alcohol per 210 liters of a person's breath."
Wis. Stat. § 340.01(1v)(a), (b).
        3
            Contrary to Wis. Stat. §§ 346.63(1)(b) and 340.01(46m)(c).


                                               2
                                                                       No.    2013AP2107-CR.akz


probable         cause    for    the   crime       of    operating         with    an    alcohol
concentration of .02% or above.
      ¶63        I    reach     my   conclusion      because         the    legislature      has
spoken      by       enacting    legislation        that      prohibits       a    serial    OWI
offender, like Blatterman, from operating a motor vehicle with
this exceedingly small amount of alcohol, .02%, in his system.
The   legislature             essentially      imposed          an     absolute         sobriety
standard by adopting the .02% limit for serial OWI offenders
while they are operating a motor vehicle.4                            The legislature did

not   set    such        an   extraordinarily           low   legal        limit   for    first,
second, or third offenders.                 In fact, most drivers are subject
to a PAC legal limit of .08%, not a limit of .02%.                                 Blatterman,
however, was subject to this low legal limit, .02%, because he
had   three          prior      OWI-related        convictions.5              When      officers
encountered him driving on March 19, 2013, knowing that he was
subject     to       a   .02%    PAC   legal   limit          and    that    he    smelled    of

      4
       "Beginning on January 1, 2001, [1999 Wis.] Act 109
require[d] that drivers with three or more prior convictions may
not exceed an absolute sobriety standard of .02 BAC. (A BAC of
.02 is considered 'absolute sobriety' because of the limitations
in breath testing devices and the fact that the slight alcohol
content of mouthwash or some medications can influence a test.)"
Legislative Briefs, OWI Laws Revised, LB-00-7, at 1 (July 2000),
available   at  http://legis.wisconsin.gov/lrb/pubs/lb/00lb7.pdf.
The Legislative Reference Bureau's "statements carry some
weight" and its "analyses are entitled to consideration."
Schilling v. State Crime Victims Rights Bd., 2005 WI 17, ¶22
n.7, 278 Wis. 2d 216, 692 N.W.2d 623 (citation omitted).
      5
       OWI-related   convictions  include   "prior   convictions,
suspensions or revocations, as counted under [Wis. Stat.
§] 343.307(1)."   See Wis. Stat. § 340.01(46m)(c). Specifically,
Blatterman previously violated the OWI laws once in 1991 and
twice in 1992, which makes the present offense a fourth offense.


                                               3
                                                                       No.       2013AP2107-CR.akz


intoxicants,         the    officers       were     not   wrong        to    pursue        whether
Blatterman was operating with a PAC.                        I would not limit this
case to a discussion of probable cause for Blatterman.                                          This
court's role is not that of error correcting. We accept cases to
discuss broader issues.               I would do so and conclude that those
serial offenders, such as Blatterman, who are subject to a .02%
PAC limit, may be arrested and tested if they are operating a
motor vehicle and smell as if they have been drinking alcohol.
In    other    words,       courts    and    law    enforcement         should          know    that

probable cause, for these serial offenders, is established based
upon odor of intoxicants alone.

       I.     THE OFFICERS HAD PROBABLE CAUSE TO ARREST AND TEST
                  BLATTERMAN UNDER THE FACTS OF THIS CASE
       ¶64     Blatterman's      traffic          stop    was    not        an    ordinary      OWI
investigation.             Blatterman       was    pulled       over    because         his     wife
called police to report that he had driven away from their house
after he tried to blow it up or start it on fire by drawing in
carbon monoxide.            She also reported that he might be intoxicated
and    that    he     had     mentioned       "suicide      by       cop"        in    the     past.
Officers subsequently found Blatterman's vehicle and performed a
"high risk" traffic stop.                  Immediately after being pulled over,

Blatterman      exhibited       odd     and       potentially        dangerous          behavior.
Contrary to the officers' orders, Blatterman exited his vehicle
and    began    to    approach       the    officers.           He   was         wearing     jeans,
boots, and a short-sleeve shirt without a coat, although the
temperature outside was freezing cold.                           Even more curiously,
Blatterman      continued       walking       toward      the    officers             despite    the
fact that the officers were pointing guns at him and had ordered
                                4
                                                       No.   2013AP2107-CR.akz


him to stop moving.       His behavior was consistent with a desire
to die through "suicide by cop."            Blatterman finally stopped
walking when he was six to eight feet from the front squad car.
The officers told him to turn away and get onto the ground, but
he continued facing the officers and knelt down.               The officers
then put Blatterman to the ground and handcuffed him.                 Deputy
James Nisius later testified that "I smelled alcohol on him when
I got up close to him."6
     ¶65    After Blatterman was placed in handcuffs, he told the

officers that his chest hurt.            Based on his chest pain, the
officers were reasonably concerned that he may have impending
health issues.       Due to his wife's report that he had mentioned
"suicide by cop" in the past and that he had been drawing carbon
monoxide into the house, the officers were reasonably concerned
that he may have been suicidal.            Clearly, the officers were
concerned    about   Blatterman's    well-being.      The    officers    then
summoned    emergency     medical    services      ("EMS")    to    evaluate

Blatterman's health, namely, his chest pain.            In the meantime,
the officers placed Blatterman in the back of a squad car, as he
was not dressed appropriately for the cold weather.                 When EMS
arrived,    Blatterman   refused    attention.      After    EMS   talked   to
Blatterman, but before leaving the scene of the traffic stop,
Deputy Nisius checked Blatterman's driving record and discovered
that Blatterman, who smelled of intoxicants, had three prior

     6
       This quote comes from Deputy Nisius's testimony at a
hearing on Blatterman's suppression motion, held on July 22,
2013.


                                     5
                                                                   No.    2013AP2107-CR.akz


OWI-related convictions and was therefore subject to a PAC legal
limit        of        .02%.         Deputy    Nisius     subsequently       transported
Blatterman to a hospital for an evaluation regarding his chest
pain.        Once at the hospital, Deputy Nisius informed the hospital
staff that Blatterman had chest pain, was possibly suicidal, and
had been exposed to carbon monoxide.                       Deputy Nisius also told
the     hospital            staff,     "there's      potentially     a     need    for    a
phlebotomist to do a legal blood draw."7                    Hospital staff examined
Blatterman and found no concern with his chest pain.                           Blatterman

told hospital staff that he was not suicidal.                             Deputy Nisius
then        removed         Blatterman's      handcuffs    and    administered       field
sobriety tests in the hospital examination room.8                         Hospital staff
drew        Blatterman's        blood.9        Blatterman's       blood    test    results
revealed that he had a blood alcohol concentration of .118%,
well over the .02% limit to which he was subject while driving.
        ¶66       Under the facts of this case, the officers could not
be expected to request a PBT before transporting an offender

like Blatterman to the hospital.                     Officers stopped Blatterman in
response          to    a    serious   domestic      complaint.      Although      he    was
driving        normally,         Blatterman         exhibited    undeniably       strange,

        7
       This quote comes from Deputy Nisius's testimony at a
hearing on Blatterman's suppression motion, held on July 22,
2013.
        8
       The record does not reflect why Deputy Nisius removed
Blatterman's handcuffs and administered field sobriety tests,
and the record does not reflect how Blatterman performed on the
tests.
        9
       This blood draw occurred before the United States Supreme
Court's decision in Missouri v. McNeely. See supra note 1.


                                                6
                                                             No.    2013AP2107-CR.akz


disobedient, and volatile behavior.               He exited his vehicle after
being told not to do so.           He then walked straight toward the
officers, who were pointing guns at him, after being told not to
do so.      He was wearing a short-sleeve shirt without a coat in
freezing cold weather.         His unusual behavior was consistent with
the   unusual     behavior    reported       by    his   wife.       In   light     of
Blatterman's      strange    behavior    and      reported   past    remark    about
"suicide by cop," the officers had plenty of reason to take him
into custody.       Blatterman was also complaining of chest pain.

The officers were certainly reasonable to transport him to the
hospital and not administer any tests at the scene——even a PBT.
To require an officer to ignore these facts and request a PBT,
instead of responding to the immediate needs of the situation at
hand, is inconsistent with our case law and common sense.10

      ¶67    In the case at issue, these legitimate concerns alone
support     the   officers'   decision       to   transport      Blatterman    to    a
hospital for testing without first requesting that he submit to

a PBT.      Should officers be expected to request a PBT breath
sample from a driver who smells of alcohol, is subject to a .02%
PAC legal limit, acts very strangely, is potentially dangerous,


      10
       Standard field sobriety tests are not required in order
to arrest a suspect for an OWI-related offense.    Tullberg, 359
Wis. 2d 421, ¶40 & n.22.    A PBT is not required either.    See
Cnty. of Dane v. Sharpee, 154 Wis. 2d 515, 519, 453 N.W.2d 508
(Ct. App. 1990) ("There is no question that, absent the
preliminary breath test, probable cause existed for the
arrest."); Cnty. of Jefferson v. Renz, 231 Wis. 2d 293, 316, 603
N.W.2d 541 (1999) ("An officer may request a PBT to help
determine whether there is probable cause to arrest a driver
suspected of OWI . . . ." (emphasis added)).


                                         7
                                                          No.    2013AP2107-CR.akz


and has chest pain?        No.    Our precedent does not require a PBT
under these circumstances, and the majority opinion is correct
not to require that here.          However, we did not accept review of
this case to recite existing precedent or to apply previously
existing   probable      cause   principles.     Hence,     I    engage   in   the
following analysis to address the more pressing issue——why we
accepted review.

      II. AN OFFICER HAS PROBABLE CAUSE TO ARREST AND TEST
     A MOTORIST IF THE MOTORIST EMITS AN ODOR OF INTOXICANTS
  AND THE OFFICER KNOWS THE MOTORIST IS SUBJECT TO A PROHIBITED
            ALCOHOL CONCENTRATION LEGAL LIMIT OF .02%
     ¶68   I write separately because I conclude that odor of
intoxicants alone is sufficient to establish probable cause to
arrest and further test an operator of a motor vehicle when the
officer knows that the operator has three or more previous OWI-
related convictions.         When practical, a PBT will be a useful
tool in determining whether to arrest and further test.                         In
general,   PBTs   serve    to    bolster   the   probable       cause   analysis.
However, a PBT is not always required and if it is refused by
the chronic offender who is required not to exceed a .02% PAC

while driving, I would conclude that probable cause to arrest
exists based upon odor alone.          Field sobriety tests may also be
administered, but are not required, for the seemingly obvious
reason that in order to exceed the .02% PAC legal limit, the
operator   need    not     exhibit   any   indicia    of    intoxication       or
impairment.   Because the law requires that this class of serial
drunk drivers maintain an alcohol concentration of less than
.02% if operating a motor vehicle, probable cause must exist


                                       8
                                                                 No.   2013AP2107-CR.akz


based on the odor of alcohol alone.                    These repeat drunk drivers
are already on notice that they place themselves at great risk
of arrest if they ingest any amount of alcohol and get behind
the wheel.
        ¶69     The        law    concerning     probable   cause      is    not      new.
Probable cause is required for an arrest to be valid.                           State v.
Secrist,       224       Wis. 2d 201,    212,    589   N.W.2d 387      (1999)     (citing
State v. Mitchell, 167 Wis. 2d 672, 681, 482 N.W.2d 364 (1992)).
"Probable cause to arrest is the quantum of evidence within the

arresting officer's knowledge at the time of the arrest which
would        lead    a     reasonable   police    officer   to    believe     that     the
defendant probably committed or was committing a crime."                               Id.

(citations omitted).               "There must be more than a possibility or
suspicion           that    the   defendant     committed   an    offense,      but   the
evidence need not reach the level of proof beyond a reasonable
doubt or even that guilt is more likely than not."                          Id. (citing
Mitchell,       167        Wis. 2d at   681-82).       Probable    cause     to    arrest

depends on the totality of the circumstances.                     State v. Kennedy,
2014 WI 132, ¶21, 359 Wis. 2d 454, 856 N.W.2d 834.                          An officer
may have probable cause to arrest a person for an OWI-related
offense without administering a PBT.11                      See Cnty. of Dane v.

        11
       There are many reasons why an officer might not request a
PBT. Perhaps a motorist who is suspected of committing an OWI-
related offense is unconscious or otherwise incapable of
submitting to a PBT. See State v. Disch, 129 Wis. 2d 225, 236,
385 N.W.2d 140 (1986) (holding that the defendant was not
conscious enough to give or withhold consent to submit to
testing under Wis. Stat. § 343.305, Wisconsin's implied consent
law).   Perhaps the motorist is in need of medical care.     See
Tullberg, 359 Wis. 2d 421, ¶¶48-51 (upholding a blood draw of a
suspected drunk driver who was hospitalized and in need of a CT
                                                     (continued)
                               9
                                                           No.   2013AP2107-CR.akz


Sharpee, 154 Wis. 2d 515, 519, 453 N.W.2d 508 (Ct. App. 1990)
("There is no question that, absent the preliminary breath test,
probable cause existed for the arrest."); Cnty. of Jefferson v.
Renz, 231 Wis. 2d 293, 316, 603 N.W.2d 541 (1999) ("An officer
may request a PBT to help determine whether there is probable
cause to arrest a driver suspected of OWI . . . ." (emphasis
added)).
      ¶70    Given     that    a    law   enforcement     officer    must    have
probable cause in order to arrest, it is important to pay heed

to   the    elements    of    the   PAC   offense   and   then   evaluate    what
quantum of evidence satisfies probable cause for each element.
This crime is not complex.            The legislature enacted Wis. Stat.
§ 346.63(1)(b), which has only two elements: (1) operating a
motor vehicle; (2) with a PAC.                 See State v. Alexander, 214



scan).    Perhaps the motorist is hospitalized and receiving
medical attention.   See State v. Seibel, 163 Wis. 2d 164, 182-
83, 471 N.W.2d 226 (1991) (upholding a blood draw of a suspected
drunk driver who was receiving treatment at a hospital for an
automobile accident).      Perhaps the motorist is seriously
injured.   See State v. Wille, 185 Wis. 2d 673, 678-79, 682-85,
518 N.W.2d 325 (Ct. App. 1994) (upholding a blood draw of a
suspected drunk driver who was admitted to an emergency room for
injuries sustained in an automobile accident). Perhaps officers
will encounter an accident scene that possibly resulted from
drunk driving but they may not immediately know the identity of
the driver responsible for the accident.    See State v. Gracia,
2013 WI 15, ¶¶6-7, 40-41, 345 Wis. 2d 488, 826 N.W.2d 87
(upholding the arrest of a suspected drunk driver who fled the
scene of an automobile accident); see also Tullberg, 359
Wis. 2d 421, ¶¶12-16 (explaining that the defendant and a
passenger in his truck falsely told a detective that the
defendant had not been driving his truck when it was involved in
an OWI-related accident).   For these reasons and many more, an
officer might choose not to request a PBT.


                                          10
                                                                          No.   2013AP2107-CR.akz


Wis. 2d 628, 651, 571 N.W.2d 662 (1997); Wis JI——Criminal 2696.
If a person has "3 or more prior convictions, suspensions or
revocations, as counted under [Wis. Stat. §] 343.307(1)," his or
her PAC is .02%.                Wis. Stat. § 340.01(46m)(c).
        ¶71       Specifically, the legislature has determined that for
this unique group of repeat drunk drivers, .02%, not .08%, is a
PAC.         See 1999 Wis. Act 109, §§ 16d, 16e.12                        In adopting such a
low legal limit, the legislature essentially required absolute
sobriety of this group of drivers.                               The Legislative Reference

Bureau has explained that "Act 109 require[d] that drivers with
three        or    more     prior    convictions           may     not   exceed       an   absolute
sobriety standard of .02 BAC.                             (A BAC of .02 is considered
'absolute sobriety' because of the limitations in breath testing
devices           and     the    fact   that        the     slight       alcohol      content     of
mouthwash           or      some     medications            can     influence          a   test.)"
Legislative Briefs, OWI Laws Revised, LB-00-7, at 1 (July 2000),

available at http://legis.wisconsin.gov/lrb/pubs/lb/00lb7.pdf.

        ¶72       Operating a motor vehicle with a PAC is a stand-alone
crime.            See     Wis.     Stat.    § 346.63(1)(b).               As    for    the   first
element, if one is driving, probable cause undoubtedly exists
with respect to this element.                        The second element becomes the
issue        before        the     court.       What        information         would      lead   a
reasonable              police    officer      to        believe     that      the    defendant's

        12
       The 02% PAC legal limit took effect on January 1, 2001.
See 1999 Wis. Act 109, § 91.   This court decided Renz in 1999,
and the traffic stop at issue in that case occurred in 1996,
several years before the .02% PAC legal limit took effect. See
Renz, 231 Wis. 2d at 296.


                                                    11
                                                                        No.    2013AP2107-CR.akz


alcohol concentration probably is .02% or above?                                  Not much.       In
my    view,    odor     of    intoxicants           must     be    sufficient.           No   other
indicia of intoxication can be required to establish probable
cause for this crime for which intoxication has no significance.
Clearly,       the    legislature       did         not     contemplate       intoxication        or
impairment when it chose .02% as the legal limit.                                  As the court
in State v. Goss aptly recognized, "[t]he ordinary investigative
tools employed in an investigation of an OWI case with a .08 PAC
standard are of little or no use where the PAC standard is [.02]

because the ordinary physical indications of intoxication are
not    typically       present    in       a    person       with    that     level      of   blood
alcohol       content."         State          v.    Goss,       2011   WI    104,    ¶27,       338

Wis. 2d 72, 806 N.W.2d 918.
       ¶73     Simply      stated,     a       person       can     commit    a    PAC     offense
without being or appearing intoxicated or impaired.                                       A person
who is subject to a .02% PAC legal limit could rarely, if ever,
exhibit any sign of intoxication or impairment when operating

with a PAC.           To require more than odor of an intoxicant would
require more than is legislatively contemplated.
       ¶74     Specifically, an operator who is subject to this low
legal limit can certainly reach a .02% PAC without exhibiting
any of the traditional indicia of intoxication.                                   See State v.
Muehlenberg,         118     Wis. 2d 502,            505,    347    N.W.2d 914        (Ct.     App.
1984).        In     other    words,    such         a    prior     offender       need    not    be
intoxicated or otherwise impaired in order to be in violation of
the PAC law.          Id.; see also State v. Bohacheff, 114 Wis. 2d 402,
414,     338       N.W.2d 466     (1983).                  For     these      offenders,         the

                                                    12
                                                            No.   2013AP2107-CR.akz


legislature must have intended that odor of intoxicants alone
raises a red flag.         A PAC violation is "highly plausible" when a
person who is subject to a PAC legal limit of .02% operates a
motor vehicle and smells of alcohol.               Goss, 338 Wis. 2d 72, ¶26.
An officer certainly has probable cause to arrest when a law
violation is "highly plausible."              See Secrist, 224 Wis. 2d at
212 (citation omitted) (explaining that probable cause to arrest
requires more than suspicion or a possibility, but the evidence
need not establish that guilt is more likely than not).                     Indeed,

in Secrist we held that probable cause to arrest may be based on

odor.     See id. at 217-18 ("We hold that the odor of a controlled
substance may provide probable cause to arrest when the odor is
unmistakable       and    may   be   linked   to     a    specific       person   or
persons . . . .").         To conclude that the odor of alcohol alone
establishes probable cause to arrest and test an offender who is
subject to a .02% PAC limit, is to afford proper deference to
the   legislature's       determination     that    operating     with    even    the

smallest amount of alcohol——an alcohol concentration of .02%——is
prohibited for those serial drunk drivers.
        ¶75    Thus,     the    legislature    has       spoken    and      set    a
particularly low PAC limit for a driver who has three or more
prior OWI-related convictions.            In other words, the legislature
sent a strong message to those serial offenders not to drink and
drive.        Those serial offenders who want to test what amount of
alcohol they can have and not reach .02% do so at great risk.
Those drivers know that they place themselves at great risk of
arrest if they have any alcohol in their system and get behind

                                       13
                                                            No.    2013AP2107-CR.akz


the wheel.     If this court were to conclude that more than the
odor of intoxicants is required to arrest a motorist subject to
a .02% PAC legal limit, we would undermine, if not invalidate,
the .02% PAC offense as a stand-alone crime.                      See Wis. Stat.
§§ 346.63(1)(b), 340.01(46m)(c).            Our court is to listen to the
policy choices of the legislature, and here the law is clear.
     ¶76    Blatterman argues that Goss requires a PBT under all
circumstances.         It    does   not.     In    fact,    Goss    supports     the
conclusion that I reach today.              The sole question before the

Goss court was whether the officer had probable cause to request

a PBT.     Goss, 338 Wis. 2d 72, ¶2.              The court concluded that a
PBT may be requested of a prior offender who is subject to a
.02% PAC legal limit based upon odor alone.                   Id., ¶¶2, 25-27.
The Goss court did not address whether a PBT was required in
order to arrest someone for a PAC offense.                  The Goss court did
not decide what happens if the operator refuses a PBT.                     Under a
natural    extension    of    Goss,   an   officer    has   probable     cause    to

arrest a driver who smells of alcohol and is subject to a PAC
legal limit of .02%, even if the driver does not exhibit strange
behavior like Blatterman did.              Although Blatterman is correct
that probable cause to request a PBT is a lower standard than
probable cause to arrest,13 his grounds for arguing that odor

     13
       Probable cause to request a PBT requires "'a quantum of
proof that is greater than the reasonable suspicion necessary to
justify an investigative stop, and greater than the "reason to
believe" necessary to request a PBT from a commercial driver,
but less than the level of proof required to establish probable
cause for arrest.'"     State v. Goss, 2011 WI 104, ¶25, 338
Wis. 2d 72, 806 N.W.2d 918 (quoting Renz, 231 Wis. 2d at 317).


                                       14
                                                      No.   2013AP2107-CR.akz


alone is not probable cause to arrest a .02% PAC offender are
not particularly persuasive.14      Although those two standards are
different, each standard is satisfied by the odor of alcohol on
a driver who is subject to a .02% PAC legal limit.
     ¶77    Finally, I address why, even if we were to conclude
that odor alone is sufficient in .02% PAC cases, law enforcement
will most often resort to using a PBT first, if practicable.              As
a practical matter, an officer will likely request a PBT from a
driver who smells of alcohol and who is subject to a PAC legal

limit of .02%.       Goss allows officers to do so based on odor

alone.     Requesting a PBT can help to resolve doubt as to whether
such a driver has a .02% PAC or above.            If the PBT results
reveal that a motorist does not have a PAC, the officer may
release the motorist, save time, and proceed onto other duties.
An officer would not likely prefer to arrest such a driver, go
through     the   required   paperwork,   transport     the    suspect    to
testing, perhaps spend time and significant resources to get a

search warrant from a judge, sit at a hospital waiting for a

     14
       It may be worthwhile to spend a few moments considering
the facts of Goss and the case now before the court. Goss and
Blatterman were both pulled over for reasons unrelated to
suspicion of OWI.   Neither Goss nor Blatterman were originally
being investigated for OWI. Each of them was placed in a squad
car for reasons unrelated to suspicion of OWI.     Officers began
to suspect both Goss and Blatterman of a PAC violation after
placing them in squad cars. In each of the cases, the officers
knew that the defendant was subject to a .02% PAC legal limit
before requesting sobriety testing.        In Goss the officer
requested Goss to submit to a PBT, the results of which
indicated that further testing could be pursued. In the present
case, the officers did not ask Blatterman to submit to a PBT——
for good reason (see section I of this concurrence.).


                                   15
                                                                No.     2013AP2107-CR.akz


blood draw, and all the time take one more officer off the
street, when a PBT is a quick and easy tool at the officer's
disposal.       The practical nature of a PBT being used in most
circumstances involving such a driver is apparent.                              Although
Goss   does    not    require     an    officer       to    request     a    PBT     before
arresting a driver who smells of alcohol and is subject to a PAC
legal limit of .02%, Goss certainly instructs that an officer is
allowed to do so.          I have no doubt that law enforcement will
most often request that a suspected .02% PAC offender submit to

a PBT in lieu of all that ensues when someone is otherwise taken
into custody.
       ¶78    When   we   decline      to    answer    the    issues    for    which     we
accepted review in this case, we leave significant uncertainty
for the courts and law enforcement.                    We should answer whether
odor   of    intoxicants       alone   is     probable     cause   to       arrest    those
operators who are subject to a .02% PAC legal limit.                                 If the
officers had requested that Blatterman submit to a PBT, what

would have happened if he refused?                    Goss does not answer that;
we should.      Could a driver like Blatterman, who exhibited very
odd and potentially dangerous behavior, avoid being arrested and
tested for a PAC violation because a PBT was not administered?
Goss does not answer that; we should.                      Law enforcement and the
courts could benefit from us answering whether odor alone is
sufficient      to    establish        probable       cause     for     these        serial
offenders.
       ¶79    Although     I    join        the   majority      opinion,        I     write
separately to explain that Deputy Nisius had probable cause to

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arrest and test Blatterman based on the facts of this case.                 I
would     further    conclude   that     odor    of    intoxicants      alone
establishes      probable   cause   sufficient    to    arrest    and    test
operators of motor vehicles who are subject to the .02% PAC
legal limit.     For the foregoing reasons, I respectfully concur.
        ¶80   I am authorized to state that Justice DAVID T. PROSSER
joins this concurrence and that Chief Justice PATIENCE DRAKE
ROGGENSACK joins section II of this concurrence.




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