State v. Joseph S. Schenian, 2023AP2017-CR, 6/5/24, District II (1-judge decision, ineligible for publication); case activity
Despite Schenian’s best efforts to do away with a damaging PBT result, COA rejects his arguments and affirms.
Schenian drew the attention of police while operating his Jeep, at around 2:30 A.M., with a top-mounted light so bright it “blinded” the sheriff’s deputy who conducted this traffic stop. (¶2). From there, the usual observations were made: odor of intoxicants, bloodshot/watery eyes, and an admission of drinking at a company Christmas party. (¶3). Schenian consented to move to a secondary location for field sobriety testing, which revealed several “clues.” (¶¶4-8). Schenian also admitted he should not have been driving. (¶9). Schenian was then told there was one last “test,” the PBT, which he did not object to. (Id.). The PBT result was .150. (¶10).
Schenian’s legal theory on appeal, following an adverse decision at a suppression hearing, is that he did not freely consent to the PBT. (¶14). He also argues there was no probable cause to arrest. (¶16). COA agrees that the PBT is a “seizure” for the purposes of the Fourth Amendment. (¶20). Thus, it is the State’s burden of proving “more than acquiescence to a claim of lawful authority.” (¶21). Instead, the State must show that consent was given “freely and voluntarily.” (Id.).
COA therefore identifies two question that must be answered: (1) Whether the officer requested the PBT and (2) “whether Schenian freely and voluntarily consented.” (¶23). As the State concedes that Schenian was not asked to specifically consent to the PBT, the case hinges on the interpretation of the officer’s initial request that Schenian perform “tests”–the request that Schenian does not dispute he consented to. (¶24). Ultimately, the standard of review dooms Schenian’s appeal, as the circuit court already made a finding that the reference to “tests” “was a request for all of the pending tests, including the preliminary breath test.” (¶25). While COA believes the officer should have been more precise, the circuit court’s factual finding is not clearly erroneous. (¶27).
Moreover, COA goes on to hold that, even if the PBT evidence was suppressed, there was sufficient probable cause to arrest Schenian. (¶28). Here, police obtained the following evidence: (1) strong odor of intoxicants; (2) it was late at night; (3) Schenian admitted to being at a party and a bar; (4) Schenian admitted to drinking five beers; (5) the officer’s observations during the HGN test; (6) Schenian admitted he should not have been driving. (¶¶29-32).
