State v. Jeffrey I. Quitko

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
May 12, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2019AP200-CR Cir. Ct. No. 2017CF30

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JEFFREY I. QUITKO,

DEFENDANT-APPELLANT

APPEAL from a judgment of the circuit court for Kewaunee
County: DAVID L. WEBER, Judge. Reversed and cause remanded.

Before Stark, P.J., Hruz and Seidl, JJ.

¶1 SEIDL, J. Jeffrey Quitko appeals a judgment, entered upon his
no-contest plea, convicting him of eighth-offense operating a motor vehicle with a
prohibited alcohol concentration (PAC). Quitko contends the circuit court erred in
denying his motion to suppress evidence obtained following his traffic stop for a
No. 2019AP200-CR

speeding violation because law enforcement: (1) unreasonably expanded the
scope of the initial stop in order to conduct a PAC investigation without having
reasonable suspicion to do so; and (2) lacked probable cause to request that Quitko
submit to a preliminary breath test (PBT).

¶2 We agree with Quitko’s latter argument.1 In State v. Goss, 2011 WI
104, ¶2, 338 Wis. 2d 72, 806 N.W.2d 918, our supreme court held, under facts
largely similar to those present in this case, that a law enforcement officer has
probable cause to request that a driver submit to a PBT when three conditions are
met: (1) the driver is known to be subject to a .02 PAC standard; (2) the officer
knows the driver would need to consume very little alcohol to exceed that
limit; and (3) and the officer smells alcohol on the driver. Because we conclude
the State failed to meet its burden to establish that the second condition was
satisfied in this case, we reverse the judgment of conviction and remand with
directions that the circuit court grant Quitko’s suppression motion.

BACKGROUND

¶3 A criminal complaint charged Quitko with eighth-offense PAC and
eighth-offense operating a motor vehicle while intoxicated (OWI). Quitko filed a
suppression motion, challenging the lawfulness of the extension of his traffic stop
and the use of the evidence subsequently obtained. The circuit court held a

1
Because we agree with Quitko that law enforcement lacked probable cause to request
that he submit to a PBT, we do not address his argument that law enforcement unreasonably
expanded the scope of the initial traffic stop. See Turner v. Taylor, 2003 WI App 256, ¶1 n.1,
268 Wis. 2d 628, 673 N.W.2d 716 (court of appeals need not address all issues raised by the
parties if one is dispositive).

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No. 2019AP200-CR

hearing on Quitko’s motion, at which Kewaunee County sheriff’s deputy Jordan
Salentine was the sole witness.

¶4 Salentine began his testimony by stating he had become a sheriff’s
deputy in 2014 and had been performing patrol duties since February 2016. When
asked how many OWI-related arrests he had made, he estimated that a “dozen
would probably be on the lower end.” Regarding his training for the investigation
of such crimes, he explained he had taken “courses in relation to standardized field
sobriety tests” while obtaining his associate’s degree in police science. He had
also participated in various continuing education “refreshers” since beginning his
employment with the sheriff’s department.

¶5 Salentine then testified that on February 13, 2017, at approximately
5:05 p.m., he observed a vehicle traveling seventy-eight miles-per-hour in a
sixty-five miles-per-hour speed zone. After stopping the vehicle, Salentine made
contact with its driver and sole occupant, whom he identified as Quitko.

¶6 During this initial contact, Salentine collected Quitko’s driver’s
license and proof of insurance. Salentine then returned to his patrol car and
entered Quitko’s personal information into his “computer system and notified [his]
dispatch of the traffic stop.” As a result, Salentine learned that “Quitko had seven
prior OWI convictions and [therefore] was not allowed to operate [with] over a
.02” blood alcohol concentration (BAC). See WIS. STAT. § 340.01(46m)(c)
(2017-18).2

2
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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No. 2019AP200-CR

¶7 Salentine then began preparing a written warning to Quitko for his
speeding violation. As he did so, however, he “observed” that he had forgotten to
ask Quitko for one of the items which appeared on the “warning form”—namely,
Quitko’s phone number. Accordingly, Salentine approached Quitko’s vehicle a
second time to obtain that information.

¶8 During this second contact, Salentine “observed a slight odor of an
intoxicating beverage or intoxicants emitting from the vehicle.” Salentine
explained later in his testimony that such an odor could be a factor in determining
whether a person has consumed alcohol. Salentine acknowledged, however, that
he had no training or experience that would allow him to infer a person’s specific
BAC based upon the odor of an intoxicant alone. It is undisputed that Salentine
also failed to provide any testimony indicating he had any training or experience
concerning the amount of alcohol a person could consume before exceeding a .02
BAC.

¶9 After smelling the “slight odor” of an intoxicating beverage emitting
from Quitko’s vehicle, Salentine asked Quitko if he had been drinking. Quitko
denied having done so, but Salentine “did not believe him.” Salentine explained
that he did not believe Quitko’s denial because “there would be no other reason I
would be smelling the odor of an intoxicating beverage coming from the vehicle.”3
Salentine therefore returned to his patrol car a second time and notified dispatch
that he was now “investigating a possibly operating while intoxicated.”

3
Salentine did acknowledge on cross-examination, however, that he was not certain
whether the odor of alcohol was coming from Quitko himself or from garbage inside of Quitko’s
vehicle.

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No. 2019AP200-CR

¶10 Salentine began his new investigation by asking Quitko if he was
willing to submit to a PBT to “check” if it was true that he had not been drinking.
Quitko informed Salentine that he was not interested in doing so, but he agreed to
perform field sobriety tests (FSTs). Quitko successfully completed the FSTs
without showing any signs of impairment. Following the FSTs, Salentine again
requested that Quitko submit to a PBT. Quitko then agreed to do so, and the PBT
yielded a result of .112. Salentine therefore placed Quitko under arrest.

¶11 After briefing, the circuit court orally denied Quitko’s suppression
motion. The court determined that although the FSTs did not yield “any additional
probable cause or anything else,” Salentine had probable cause to request that
Quitko submit to a PBT once he smelled the slight odor of intoxicating beverages
emitting from Quitko’s vehicle. The court explained:

[U]nder Goss … I believe the speeding,[4] the smell of
alcohol, the knowledge of the reduced blood alcohol level
because of the prior convictions, all converged in this case
in a way very similar to Goss, or at least [in] this Court’s
opinion sufficiently similar to Goss as to establish probable
cause to give the PBT.

The court rejected Quitko’s attempt to distinguish Goss on the basis that Salentine
had not testified that he had any knowledge that it took only a small amount of
alcohol consumption for a person to reach a .02 BAC. The court reasoned, “I
think it’s common sense…. It doesn’t take a lot of alcohol to go over .02.”

4
We observe that the State does not argue on appeal that speeding, uncoupled with any
other act of poor or suspicious driving, provides any basis to request that an individual submit to a
PBT. Consequently, we will not further discuss the undisputed fact that Quitko was speeding
when Salentine initiated the traffic stop.

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No. 2019AP200-CR

¶12 Quitko subsequently pleaded no contest to eighth-offense PAC, and
the circuit court imposed a sentence consisting of four years’ initial confinement
and four years’ extended supervision. Quitko now appeals, challenging the denial
of his suppression motion. See WIS. STAT. § 971.31(10).

STANDARD OF REVIEW

¶13 When reviewing a circuit court’s denial of a motion to suppress
evidence, we will uphold the court’s findings of fact unless those findings are
clearly erroneous. Goss, 338 Wis. 2d 72, ¶9. Whether the facts fulfill the
statutory standard to request a PBT, however, is a question of law we review de
novo. Id.

DISCUSSION

¶14 As a threshold matter, we address a theme that runs throughout the
arguments in the State’s response brief. Specifically, relying on deputy
Salentine’s testimony that Quitko initially informed Salentine he was not
interested in submitting to a PBT, the State casts this as a refusal case. But the
State not only failed to argue below that Quitko refused a valid PBT request, it
argued at the conclusion of the suppression hearing that the circumstances
surrounding Quitko’s so-called refusal were a “red herring.”

¶15 Presumably as a result of the State’s “red herring” argument, the
circuit court never even considered in its decision—much less found—whether
Quitko’s statement that he was not “interested” in initially submitting to a PBT
constituted a refusal. Thus, by suggesting that this case involved a refusal, the
State is essentially asking us to decide—based on a record that is undeveloped due
to the State’s own actions—an issue that was not considered by the circuit court.

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No. 2019AP200-CR

Even though we recognize that a respondent may generally “employ any theory or
argument on appeal that will allow us to affirm the trial court’s order, even if not
raised previously,” Finch v. Southside Lincoln-Mercury, Inc., 2004 WI App 110,
¶42, 274 Wis. 2d 719, 685 N.W.2d 154, we decline to consider the State’s newly
raised refusal argument under these circumstances.

¶16 We now turn to Quitko’s argument that Salentine did not have
probable cause to request that he submit to a PBT, and that the circuit court
therefore erred by denying his suppression motion. For the reasons that follow,
we agree with Quitko.

¶17 WISCONSIN STAT. § 343.303 provides that an officer “may request”
that an individual submit to a PBT “[i]f a law enforcement officer has probable
cause to believe that the person is violating or has violated [WIS. STAT. §] 346.63.”
In this context,

“[P]robable cause to believe” refers to a quantum of proof
greater than the reasonable suspicion necessary to justify an
investigative stop, and greater than the “reason to believe”
that is necessary to request a PBT from a commercial
driver, but less than the level of proof required to establish
probable cause for arrest.

County of Jefferson v. Renz, 231 Wis. 2d 293, 316, 603 N.W.2d 541 (1999)
(citing WIS. STAT. § 343.303).

¶18 In Goss, our supreme court considered whether this standard was
met when an officer smelled the odor of alcohol on a driver subject to a .02 PAC
standard. Goss, 338 Wis. 2d 72, ¶1. As indicated, the court held that it was met,
so long as: (1) the investigating officer knows the driver is subject to the .02 PAC
standard; (2) the officer knows the driver would need to consume very little

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No. 2019AP200-CR

alcohol to exceed that limit; and (3) and the officer smells alcohol on the driver.
Id., ¶2.

¶19 As set forth above, Salentine testified to having taken “courses in
relation to standardized field sobriety tests,” receiving periodic “refreshers,” and
conducting upwards of twelve OWI-related arrests. But, as the State tacitly
acknowledges, nothing about this testimony concerned Salentine’s knowledge of,
or experience with, how much alcohol an individual may consume before
exceeding a .02 PAC standard. Because the Goss court held that such knowledge
is necessary to satisfy the probable cause standard set forth in WIS. STAT.
§ 343.303, we conclude that the standard was not met in this case.

¶20 A further distinction between this case and Goss is that here, unlike
the officer in Goss, Salentine did not testify that he smelled the odor of alcohol
coming from Quitko’s person. See Goss, 338 Wis. 2d 72, ¶17. Rather, Salentine
testified that he smelled the odor coming from the car, but he was unable to tell
whether it was coming from garbage in the car or from Quitko himself.

¶21 To be sure, “an officer is not required to draw a reasonable inference
that favors innocence when there also is a reasonable inference that favors
probable cause.” State v. Nieves, 2007 WI App 189, ¶14, 304 Wis. 2d 182, 738
N.W.2d 125. But, in the specific context concerning probable cause and the odor
of a controlled substance, our supreme court has counseled that subtle differences
may either raise or lower the probability that the driver of the car from which the
odor is emitting has committed a crime:

If under the totality of the circumstances, a trained and
experienced police officer identifies an unmistakable odor
of a controlled substance and is able to link that odor to a
specific person or persons, the odor of the controlled
substance will provide probable cause to arrest. The strong

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No. 2019AP200-CR

odor of marijuana in an automobile will normally provide
probable cause to believe that the driver and sole occupant
of the vehicle is linked to the drug. The probability
diminishes if the odor is not strong or recent, if the source
of the odor is not near the person, if there are several
people in the vehicle, or if a person offers a reasonable
explanation for the odor.

State v. Secrist, 224 Wis. 2d 201, 218, 589 N.W.2d 387 (1999). As such, the fact
that Salentine did not smell the odor of an intoxicating beverage coming from
Quitko himself—but instead inferred from the generalized “slight odor of an
intoxicating beverage or intoxicants emitting from the vehicle” that Quitko may
have consumed an unknown amount of alcohol—further supports our conclusion
that there was not probable cause to request that Quitko submit to a PBT.

¶22 On appeal, the State urges us to adopt the circuit court’s rationale
that it is “common sense” to conclude that someone who has consumed only a
small amount of alcohol is likely to have exceeded the .02 PAC standard. We
decline to so do for three reasons. First, to so conclude would ignore that the Goss
court avoided making such a statement and instead focused on the officer’s actual
knowledge. Stated differently, the Goss court established that the probable cause
standard set forth in WIS. STAT. § 343.303 is subjective—not the objective
standard that would result from accepting the State’s “common sense” test.

¶23 Second, a common sense test would, perhaps, be logical if a driver
with multiple OWI-related convictions, such as Quitko, was subject to an absolute
sobriety condition. But the legislature has chosen to allow such persons to operate
a vehicle with a .02 PAC standard; it has not imposed the absolute sobriety
condition that is applicable to commercial drivers. See Goss, 338 Wis. 2d 72, ¶12.
Notably, the legislature has established that an officer need not have probable
cause under WIS. STAT. § 343.303 to request that a commercial driver submit to a

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No. 2019AP200-CR

PBT, whereas the statute’s probable cause requirement, as defined by Goss, still
exists for a driver subject to a .02 PAC standard. Goss, 338 Wis. 2d 72, ¶12.

¶24 Finally, we disagree with the State that it is “common sense” to
conclude that someone who has consumed only a small amount of alcohol is likely
to have exceeded the .02 PAC standard. Such a conclusion oversimplifies the
relevant factors that must be considered before even a trained individual can
estimate a person’s BAC, primarily what type of alcohol the person consumed and
when and under what circumstances they consumed it. See, e.g., State v. Vick,
104 Wis. 2d 678, 683, 312 N.W.2d 489 (1981). Again, Salentine was not aware of
any of these factors, as Quitko denied that he had consumed any alcohol prior to
the PBT request.

¶25 In sum, this case is controlled by Goss. Where, like here, the State
relies on the odor of an intoxicating beverage to argue that the probable cause
standard set forth by our legislature in WIS. STAT. § 343.303 has been satisfied, it
must show that the three Goss conditions have been met. Because the State did
not do so here, we reverse the judgment of conviction and remand with directions
that the circuit court grant Quitko’s suppression motion.

By the Court.—Judgment reversed and cause remanded.

Not recommended for publication in the official reports.

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