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2010 WI 132
Issue: Out-of-state priors for penalty enhancement purposes.
Holding: The Wisconsin Supreme Court held that a violation of the Illinois “zero tolerance law” is included under Wis. Stat. §343.307(1), and therefore counts as a prior conviction for penalty enhancement purposes in Wisconsin.
Summary: Defendant was arrested on August 25, 2007 and charged with operating while under the influence of an intoxicant, second offense. The State amended the charge to a fourth offense when it discovered two prior suspensions of defendant’s license for violating the Illinois “zero tolerance law”. The Illinois “zero tolerance law” applies to a person under 21 who engages in certain prohibited conduct that results in license suspension or revocation. See State v. Carter, 2010 WI 132, at ¶2, n.2, Dec. 2, 2010. A suspension occurs if a driver under 21 suspected of driving while intoxicated either refuses to submit to a chemical test, or submits and tests between 0.00 and 0.08 BAC. The driving record in this case did not indicate which of these two situations resulted in the defendant’s license being suspended. Id. at ¶24.
Defendant challenged the State’s characterization of these suspensions as convictions for sentence enhancement purposes under Wis. Stat. §346.65(2). Defendant argued these suspensions are not “convictions” under Wis. Stat. §343.307(1) because Wisconsin’s version of the “zero tolerance law” (Wis. Stat. §346.63(2m)) does not count for purposes of penalty enhancement.
The court examined Wis. Stat. § 343.307(1)(d) and (1)(e) individually to determine whether the “zero tolerance” violations are counted for penalty enhancement purposes. Wis. Stat. §343.307(1)(e) applies to cases where a driver refuses to submit to chemical testing. Because defendant’s driving record did not provide sufficient information to determine the underlying reason for the suspension, the court examined Wis. Stat. §343.307(1)(d) which relates to “convictions” in jurisdictions outside of Wisconsin. The court held that the definition of “conviction” in Wis. Stat. §340.01(9r) applies to “conviction” as it is used in Wis. Stat. §343.307(1)(d), based on the legislative history surrounding Wis. Stat. §340.01(9r) and other canons of legislative interpretation. In reaching this decision, the court overruled State v. Machgan, 2007 WI App 263, 306 Wis. 2d 752, 743 N.W.2d 832, which held that Wis. Stat. §340.01(9r) did not apply to Wis. Stat. §343.307(1)(d), because Wis. Stat. §343.307(1)(d) is the specific statute addressing out-of-state convictions. Carter, 2010 WI 132 at ¶43.
The Wisconsin Supreme Court held that because the definition of Wis. Stat. §340.01(9r) applies, Wis. Stat. §343.307(1)(d) encompasses laws in other jurisdictions regarding refusing chemical testing, operating while intoxicated, operating while under the influence of a controlled substance or controlled substance analog, operating with an excess or specified range of alcohol concentrations, operating while under the influence of any drug to a degree that renders the person incapable of driving safely, or operating while having a detectable amount of a restricted controlled substance in his or her blood. See Carter, 2010 WI 132 at ¶45; Wis. Stat. §343.307(1)(d).
The supreme court reasoned that the administrative suspension of the defendant’s license for violating the “zero tolerance law” is a “conviction” under Wis. Stat. §343.307(1)(d) because it prohibits either refusing a chemical test or operating with an excess or specified range of alcohol concentrations. The administrative suspension is counted as an administrative determination by an authorized tribunal that the defendant violated the law, and therefore falls within Wis. Stat. §343.307(1)(d).
Finally, the court acknowledged defendant’s argument of unfairness. In response, the court concluded that the legislature has expressly chosen to exclude revocations under Wisconsin’s absolute sobriety law from being counted as priors for penalty enhancement purposes while not making the same exclusion for suspensions of out-of-state zero tolerance statutes. “Under these circumstances, the court cannot usurp the role of the legislature and carve out an exception for suspensions under the Illinois ‘zero tolerance’ laws.” Carter, 2010 WI 132 at ¶63.
In the matter of amendment of Wis. Stat. § (Rule) 809.23(3) regarding citation to unpublished opinions, 2009 WI 2, no. 08 - 02.
The Wisconsin Supreme Court has accepted a petition to modify § 809.23(3) to allow unpublished decisions issued on or after July 1, 2009 to be used for persuasive value.
2010 WI 6
Issue: Admissibility of a Preliminary Breath Test (PBT) result at an OWI trial.
Holding: The Wisconsin Supreme Court
upheld the appellate court's decision that affirmed the trial court's ruling that excluded an expert's report and opinion testimony based in part on preliminary breath test (PBT) results.
Summary: Officers An officer pulled Fischer over on suspicion of driving while intoxicated. After Fischer failed a field sobriety test, the officer administered a PBT, which registered a .112 percent. A chemical blood test, administered an hour later, resulted in a .147 percent BAC. Fischer was charged with OWI and OWI-PAC. At trial, Fischer retained an expert witness who, by comparing the PBT result to the blood test result, extrapolated a probable BAC at the time Fischer was initially pulled over. The expert planned to testify that Fischer’s BAC may have been below 0.08 when he was first stopped. The State filed a motion to exclude the testimony, specifically the use of the PBT result. Acknowledging that PBT results are inadmissible evidence in prosecutions for OWI, Fischer argued he had a Sixth Amendment right to present the expert’s evidence. In rejecting Fischer’s claim, the circuit court looked to the legislative intent behind Wis. Stat. § 343.303 and found that the legislature never intended a PBT result to be an evidentiary test. While the legislature deemed the PBT reliable enough for a probable cause determination, it did not consider it reliable enough to be admitted into evidence for purposes of determining guilt or innocence.
The questions before the Wisconsin Supreme Court are (1) whether Wis. Stat § 343.303 creates an absolute bar on the admission of PBT results in OWI cases, even when used as the basis for an expert's opinion offered under Wis. Stat. § 907.03; (2) if so, whether such an application of the statute violates a defendant's constitutional right to present a defense; and (3) whether the court should revisit and reject Wisconsin case law that establishes that "the reliability of the evidence is a weight and credibility issue for the fact finder”. The supreme court found that the circuit court properly granted the State’s motion to exclude the report and the expert opinion testimony.
The court concluded that Wis. Stat.§ 343.303 expressly bars PBT results in OWI cases, and courts cannot allow Wis. Stat. § 907.03 to trump that prohibition in § 343.303 because it would present needless obstacles in the investigation, prosecution, and defense of drunk driving cases.
Fischer argues that excluding the expert’s opinion violates his constitutional right to present a defense. The court did not agree, citing United States v. Scheffer which held that the exclusion of defense evidence is constitutionally valid “so long as they are not ‘arbitrary’ or ‘disportionate to the purposes they are designed to serve.’ ” The Wisconsin Supreme Court turned the Scheffer holding into a two-part test in State v. St. George, 2002 WI 50, ¶52, 252 Wis. 2d 499, 643, N.W.2d 777; the second part of the St. George test involves weighing the defendant’s right against the State’s interest in excluding the evidence. The Wisconsin Supreme Court found that the state’s compelling interest in excluding the PBT results promotes efficient investigations of suspected drunk driving incidents and successfully outweighs Fischer’s right to present this evidence.
Note 1: The court’s holding does not speak to the reliability of the PBT results in general
Note 2: Wis. Stat. § 343.303 states in relevant part: "The result of the preliminary breath screening test shall not be admissible in any action or proceeding except to show probable cause for an arrest, if the arrest is challenged, or to prove that a chemical test was properly required or requested of a person under s. 343.305(3).