COA: Driver suspected of operating under the influence not entitled to alternative test to measure intoxication until arrest.
Portage County v. Adam N. Dombrowski, 2025AP204, 5/21/26, District IV (ineligible for publication); case activity
The COA held that a driver suspected of operating while intoxicated was not entitled to an alternative test to measure the driver’s blood, breath, or urine until he was arrested. The circuit court’s order denying the defendant’s motion to suppress the results of his blood test were therefore affirmed.
While Adam Dombrowski was stopped by a Portage County sheriff’s deputy for a traffic offense, the deputy detected signs that Dombrowski was intoxicated. After he failed a field sobriety test, the deputy asked Dombrowski to perform a preliminary breath test (PBT). Dombrowski said he was willing to take a “calibrated one at the station.” The deputy told him, “[w]e don’t have one down at the station so I am asking if you’d be willing to do [a] preliminary breath test right now.” (¶ 5).
Dombrowski refused to take the PBT, was arrested, and transported to a hospital; where the deputy reviewed the Informing the Accused form and asked if he would submit to a blood test. Dombrowski consented to the blood test and did not ask to take an additional test. He was charged with an ordinance violation for operating with a prohibited alcohol concentration. (¶ 6).
Dombrowski filed a motion to suppress the results of the blood test because the deputy did not honor his request for an alternative test under Wis. Stat. § 343.305(5)(a), and because the deputy was not prepared to administer two of the three tests for blood alcohol content listed in § 343.305(2). The circuit court denied the motion and Dombrowski was found guilty at a court trial. (¶¶ 1,7). On appeal, Dombrowski challenged the circuit court’s order denying his motion to suppress.
The implied consent statute provides that a person who operates a motor vehicle on a public highway is “deemed to have given consent to one or more tests of his or her breath, blood or urine . . . when requested to do so by a law enforcement officer.” “Upon arrest of a person” for driving under the influence, law enforcement “may request the person to provide one or more samples of his or her breath, blood or urine.” § 343.305(3). A person who submits to a requested blood, breath, or urine test is “permitted, upon his or her request, the alternative test provided by the agency under sub. (2)” (blood breath, or urine). § 343.305(5)(a). The law enforcement agency “shall be prepared to administer, either at its agency or any other agency or facility, 2 of the 3 tests under sub. (3)(a), (am), or (ar).” § 343.305(2).
Dombrowski argued that he requested an alternative test when he offered to take a calibrated test in lieu of a PBT, that the deputy unlawfully denied his request, and that the remedy was suppressing the results of his blood test. The COA acknowledged that suppression is an appropriate remedy when an arresting agency does not meet its statutory duty to provide a requested alternative test. (¶ 10). However, the COA concluded that Dombrowski had not been arrested when he asked for the breath test and the right to ask for and receive an evidentiary breath test does not arise until the person “has been arrested and submits to the test requested by a law enforcement officer.” (¶ 12).
The COA also rejected Dombrowski’s argument that his blood test should be suppressed because the sheriff’s department was not prepared to administer two of the three tests for blood alcohol content. The COA affirmed the circuit court’s factual findings that the deputy was referring to a PBT device when he said “we don’t have one” at the station and the department was prepared to offer a breath test as an alternative test after Dombrowski submitted to the requested blood test. (¶ 18). The COA did not address whether suppression would have been an available remedy if the sheriff’s department had not been prepared to offer two of the three tests.