Under Wisconsin’s Implied Consent Law,¹ a person who drives or operates a motor vehicle on the public highways of the state “is deemed to have given consent to one or more tests of his or her breath, blood or urine, for the purpose of determining the presence or quantity in his or her blood or breath, of alcohol, controlled substances, controlled substance analogs or other drugs, or any combination of alcohol, controlled substances, controlled substance analogs and other drugs, when requested to do so by a law enforcement officer.”²

The chemical analysis of the amount of alcohol in a person’s blood, breath or urine is admissible on the issue of whether the person was under the influence of an intoxicant or had a prohibited alcohol concentration if the sample was taken within three hours after the event to be proved.³ In fact, when a person’s alcohol concentration is tested under the statutory procedures, the test results are mandatorily admissible.⁴ Thus, the law treats all three tests equally for purposes of obtaining evidence of impairment to prosecute drunk and drug impaired driving cases under sec. 346.63; also commonly referred to as “OWI” for operating while intoxicated/impaired.

However, the current reality in Wisconsin is that all things are not created equal, especially for purposes of obtaining chemical tests for intoxication. The perception is that blood tests are more accurate than breath tests and that OWI cases with a blood test result are easier for the state to prosecute and obtain a conviction. Further, there is a perception among defense attorneys and pro se defendants that it is harder to beat a blood test than it is to beat a breath test.⁵ While a certain amount of perception is based in fact, there are other factors that should be considered in evaluating the available chemical test programs in Wisconsin.

The goal of this article is to provide a general overview of the breath and blood testing programs in Wisconsin. First, the article will provide an historical perspective of both the breath and blood testing programs. Second, it will address the strengths and weaknesses of both programs. Third, the article will provide a national perspective on chemical test evidence in OWI cases. Finally, the article will offer a conclusion that places the respective chemical test programs in the context of the overarching legislative intent.

Historical Perspective

Every breath-testing program owes its existence to Robert F. Borkenstein, “Inventor of the Breathalyzer.” ⁶ He developed the first practical device to be used by law enforcement officers to measure the proportion of alcohol vapors in exhaled air, a proportion that reflects the amount of alcohol in a person’s blood. The Breathalyzer was a portable device that provided tangible evidence of intoxication. In doing so, Dr. Borkenstein changed the landscape of drunk driving enforcement for law enforcement officers and prosecutors. Wisconsin was one of the first states to purchase and utilize the Breathalyzer in 1956. ⁷ The Breathalyzer remained in operation in Wisconsin until approximately 1985, when the state purchased the Intoxilyzer 5000 instrument. The Intoxilyzer 5000 was Wisconsin’s primary evidential breath alcohol instrument until 1999, when the state replaced them with the Intoximeter EC/IR, which currently remains in use throughout Wisconsin. ⁸

The state’s blood testing program has its genesis in the Implied Consent Law, which the legislature enacted in 1970. This law established the conditional use of a motor vehicle on the state’s highways upon the implied consent to chemical testing.⁹ The purpose of this law, as articulated by the appellate courts, is:

Further, the OWI statute defines the prohibited behavior in terms of “alcohol concentration” as expressed by the measurement of alcohol in one’s blood or breath.¹¹

The protocols for both the breath test and blood test programs are established by statute and administrative rule. Specifically, subsection 343.305(6)(b) states, “The department of transportation shall approve techniques or methods of performing chemical analysis of the breath.” Chapter Trans 311 sets out the administration of the approval and permit program for breath alcohol testing.¹² It also designates that the chief of the chemical test section shall approve all instruments for the qualitative or quantitative analysis of alcohol in the breath.¹³ In addition, the department of transportation is responsible for training law enforcement officers to operate the breath test instruments, certify their qualifications, certify the accuracy of the instruments to be used in analyzing a person’s breath, and issue permits for operation.¹⁴

The statute also requires that the breath test be administered using the two breath-test sequence. This means the analyses shall be in the following sequence:

[O]ne adequate breath sample analysis, one calibration standard analysis, and a 2^nd, adequate breath sample analysis.¹⁵

If a person does not provide the requisite two separate, adequate breath samples in the appropriate sequence, it will be considered a refusal under the implied consent law.¹⁶ Finally, the statute defines a breath sample to be “adequate,” if the instrument analyzes it and does not indicate that it is deficient.¹⁷

Likewise, the protocol for blood tests is provided in subsections 343.305(5) and (6). The statutes specify who is qualified to draw the blood; namely, “a physician, registered nurse, medical technologist, physician assistant or person acting under the direction of a physician.”¹⁸ The Court of Appeals has on occasion resolved issues of whether a particular blood draw fit within the meaning of the statute. For example, in State v. Penzkofer¹⁹ the court concluded that blood taken by a certified laboratory assistant satisfied the requirement that it be withdrawn under the direction of a physician. In reaching its conclusion, the court reasoned that the certified lab assistant followed the approved written protocol and that a specific order from a physician was not required in each individual case.²⁰ Additional unpublished cases have reached similar conclusions.²¹

In addition, the statute requires that for the chemical analyses of blood to be considered valid, it must be performed substantially according to methods approved by the laboratory of hygiene and by an individual possessing a valid permit to perform the analyses.²² Further, the department of health and family services is responsible for approving the laboratories that perform the chemical analyses as well as developing and administering a program that regularly monitors the laboratories. Law enforcement agencies are provided with a list of the approved laboratories and an ample supply of blood specimen collection kits.²³

Both blood and breath test results are given prima facie effect if the sample was taken within three hours of the event to be proved; namely, the OWI offense.²⁴ This is buttressed by case law. Specifically, in State v. Ehlen,²⁵ the Wisconsin Supreme Court held that when blood alcohol content is tested under statutory procedures, results of the test are mandatorily admissible. In State v. Disch,²⁶ the Wisconsin Supreme Court held that the importance of sec. 885.235(1)(c) is that blood alcohol test results are admissible into evidence and it is error to exclude them because they are authenticated tests by legislative edict. Further, in State v. Dwinell,²⁷ the court held that chemical tests specified by statute are reliable as a matter of law.²⁸ As such, the court recognized that “breathalyzer tests carry a prima facie presumption of accuracy” and the question of how accurately the test was performed goes to the weight to be given the test, not to the admissibility.²⁹

Strengths and WeaknessesThere are three compelling advantages of having a person submit to a breath test. First, a breath test can usually be obtained closer to the time of driving or operation, which may help to diminish potential alcohol curve arguments; for example, the person’s alcohol concentration was substantially lower at the time of driving or operation. Second, breath tests provide immediate results. The officer is able to process the appropriate paperwork commensurate with the arrest; namely, the Notice of Intent to Suspend Operating Privilege Temporary Driving Permit (MV 3519) and Administrative Review Request (MV3530) on site rather than at a later date when he or she receives the blood test results. Third, a breath test can be administered with the least amount of intrusion to the subject being tested.

In addition, prosecutors have indicated that it is easier to schedule a chemical test coordinator to testify than a chemist from the State Laboratory of Hygiene. Likewise, the breath test results can often get admitted into evidence through the testimony of one officer.³⁰ And while breath tests seem to be less complicated; approximately 80% of breath test cases in one city go to trial, compared to only 20% of blood cases.³¹ Therein lies one of the biggest weaknesses of breath tests.

An assistant district attorney summed up the problem, “Like it or not, blood tests are thought to be highly reliable and most people have at least some experience with them. Over the last decade, there have been many more legal issues with breath testing than there have been with blood tests.”³² This was not an isolated comment. Rather, other prosecutors echoed the same sentiment. For example, another assistant district attorney said, “There’s nothing inherently wrong with breath testing, but blood always sells better to juries and is much less susceptible to attack… It is true that chem test coordinators are available to testify as experts in appropriate cases, but even then, jurors see that computerized mystery machine (Intoximeter) as harder to understand and more susceptible to errors of various kinds than the testing methods used in blood test cases.”³³ A city attorney observed, “I found that juries (at least in the north woods) mistrusted the technology of the Intoxilyzer, but could identify, and therefore trust, the blood test.”³⁴

The reality is that the breath test instrument used in Wisconsin in the 1990s came under attack in a court case that went up to the state supreme court. Specifically, defendants Randall S. Baldwin and Gregory A. Busch challenged the admissibility of “breath test results from an untested, unevaluated and unapproved Intoxilyzer Model 5000, Series 6400.”³⁵ The defendants argued that the numerous changes made to the Series 6400 resulted in a new quantitative breath testing instrument Series 6600 that had not been evaluated and approved. As such, they argued that the breath test results should not be afforded a presumption of accuracy and admitted into evidence.³⁶ The defendants prevailed at the appellate level creating headlines that read, “Blood-alcohol challenges have DAs worried;”³⁷ “Ruling: Breath test must be DOT-certified;”³⁸ “Putting a Ford engine in a Chevy chassis—is it a Forlet or a Chevord? The unapproved ‘upgrading’ of the 6400 series Intoxilyzer 5000.”³⁹

The state did its best with the damage control; but in many ways the damage was already done. John Sobotik, attorney with the Wisconsin Department of Transportation’s Office of General Counsel, authored a column reassuring prosecutors that the court’s decision only affected the “hybrid” instruments challenged in the State v. Baldwin⁴⁰ decision. Subsequent to the decision, the devices in question were evaluated and certified by the Chemical Test Section. To the extent a case involving a hybrid instrument went to trial, the Chemical Test Section readily provided experts to testify.⁴¹ But prosecutors had to work much harder for convictions with breath test results because defense attorneys argued that the Baldwin decision affected every Intoxilyzer in the state, not just the Series 6400 and 6600.

The Wisconsin Supreme Court accepted review of the Court of Appeals decision and rendered the opposite opinion in State v. Busch.⁴² The headlines then read, “Breath-test results upheld in drunken driving cases,”⁴³ and “Presumption attaches to Intoxilyzer Series 6600.”⁴⁴ In Busch, the Wisconsin Supreme Court made a number of rulings; namely, (1) The Intoxilyzer Model 5000 Series 6400 and the Series 6600 were essentially the “same machine” due to their identical analytical processing. (2) As such, the breath test results should have been afforded a presumption of accuracy and reliability. (3) The Chief of the Chemical Test Section of the Wisconsin Department of Transportation is given the authority to determine the procedures for evaluating all breath test instruments under Wis. Admin. Code § TRANS 311.04.⁴⁵ This should have put an end to the challenges to the Intoxilyzer 5000 instruments, but it didn’t and the effects still lingered. In fact, one city attorney stated that the police department was doing “a lot of blood testing on second and subsequent offenses because this had been the request from the DA when Busch/Baldwin had been such a problem with the old Intoxilyzer 5000.”⁴⁶

The Chemical Test Section responded to the problem of aging and modified Intoxilyzers by replacing them with the Intoximeter EC/IR. Similar to the Intoxilyzer, the Intoximeter EC/IR is an automated, microprocessor controlled breath alcohol testing instrument. However, unlike the Intoxilyzer that employed principles of infrared spectroscopy,⁴⁷ the Intoximeter EC/IR utilizes electrochemical or fuel cell technology to measure breath alcohol concentration.⁴⁸ Cross-over training of law enforcement officers started in 1998 and resulted in approximately 7,000 trained operators statewide by 2000. Concomitant with this training, the Chemical Test Section provided training and hands-on experience to prosecutors, defense attorneys and judges. In addition, there are eight Chemical Test Coordinators located throughout Wisconsin to provide technical support and expert testimony.

However, rather than relying on the new breath test instruments that are readily available, many prosecutors continue to prefer the “accuracy” of blood test results, which “sell better to juries.”⁴⁹ One city attorney said, “It is my impression that if there is a trend, it is towards blood, partly because of the problems with the old Intoxilyzers.”⁵⁰ The test numbers over the years support this trend. In calendar year (CY) 1995, there were 21,500 breath alcohol tests and 10,624 blood alcohol tests (3,629 chemical test refusals). In contrast, (CY) 2000 had 16,921 breath alcohol tests and 19,372 blood alcohol tests (2,309 chemical test refusals).⁵¹ The increased number of blood tests that are now being submitted to the State Laboratory of Hygiene is one of the disadvantages to using blood as discussed below.

The obvious advantages of having a blood test are the ability to test for drugs other than alcohol and to obtain evidence where the driver is either injured or unconscious.⁵² These advantages are reflected in the policy of many agencies. For example, the Dane County District Attorney’s Office recommends blood tests in cases of injury, death and where drug ingestion is suspected. The Outagamie County District Attorney’s Office requests that blood be the primary test on fatalities and serious injury cases.⁵³ Further, in cases involving a refusal, it is easier to force a blood draw than a breath test. Many agencies have adopted policies to reflect that. For example, one city attorney said that the district attorney’s office requested blood be taken forcibly on all refusals to secure the “best evidence.”⁵⁴ However, in contrast, another city attorney observed that “a refusal is enough to get a 1^st OWI conviction,” so they don’t force blood.⁵⁵ Whether forced or not, most prosecutors would prefer a blood test in every case. So what could be the disadvantages?

The obvious disadvantage of having blood test evidence is scheduling an analyst to testify from the State Laboratory of Hygiene. This is recognized by both the analysts and the prosecutors. In fact, one city attorney commented, “I am certainly finding it more and more difficult to schedule blood analysts from the State Lab of Hygiene.”⁵⁶ Likewise, an assistant district attorney reported liking breath test results better than blood because the evidence can be introduced through one officer and they don’t have to be on the waiting list for an analyst.⁵⁷ A city attorney echoed those comments by stating, “Breath seems to be less complicated and the need for experts less.”⁵⁸ In fact, breath alcohol tests can be easily obtained with all the Intoximeter EC/IR instruments currently in place. Further, the Chemical Test Section staff is available throughout the state to testify in cases involving challenges to the Intoximeter EC/IR or allegations of alcohol curve issues.

Another disadvantage of blood test results for some agencies is the cost of drawing the blood. The state funds the entire breath test program at no cost to law enforcement agencies. And while the State Laboratory of Hygiene tests the blood samples for free, the hospitals that draw the blood are not funded by the state. Thus, the arresting agency will incur a cost ranging from $25.00 to $100.00 per blood draw. One city agency has deliberately held off on designating blood as its primary test in criminal cases because of the expense.⁵⁹ Another city attaches the hospital fee to the fine, which is assessed on all blood draws, whether forced or voluntary.⁶⁰ Still another city attorney reported that after losing a jury trial on a .15 breath test, their agency went to mandatory blood tests. The result has been that “jury trials declined to zero—justifying the increased cost of blood tests in the view of the PD.”⁶¹ But given the current fiscal climate for most state and local agencies, one might wonder how long that justification might last.

National Perspective

Wisconsin is not the only state to have its breath testing instruments challenged. In fact, one drunk driving defense attorney stated, “The accuracy and reliability of breath testing is a growing issue of concern, nationally, as it is in Atlanta and really needs to be looked into by our state officials.”⁶² Mr. William C. Head, founder of the Drinking Driver’s Defense Network (DDDN), has made it his job to get breath test results excluded in 100% of his cases since January of 1995, and he wants to share his expertise with the rest of the country.⁶³ But he is not alone as evidenced by other articles. For example, “Why the Intoxilyzer Isn’t Worth a ‘Blank:’ We Prove It’s Not Accurate, Precise, Reliable,” which appeared in the DWI Journal.⁶⁴ Chapters in books are dedicated to “Demystifying the Intoxilyzer 5000,”⁶⁵ “Challenging the Breath-Test Machine: ‘Who Hath Measured the Ground?’”⁶⁶ and simply “Breath Analysis,” which includes a discussion of the “many sources of error in breath testing.”⁶⁷

Although breath test evidence is challenged nationwide, most states continue to run breath-testing programs that provide the vast majority of their alcohol concentration test results. For example, a 1995 survey conducted by the Colorado Department of Public Health and Environment revealed the numbers of breath, blood and urine tests conducted by each state. At that time, Wisconsin’s blood test numbers were already higher than in other states. For example, in 1995 Indiana collected 40,000 breath test samples and 1,000 blood tests. Similarly, Washington collected 40,000 breath test results and 3,000 blood tests. Arizona conducted 50,000 breath tests and 7,000 blood tests.⁶⁸ In fact, “breath alcohol testing is the method of choice in traffic law enforcement.” ⁶⁹

Conclusion

The purpose of the implied consent law is to obtain chemical test evidence to prosecute drunk drivers. The law treats breath and blood tests equally for purposes of obtaining evidence of impairment. By design, the statute facilitates the identification and removal of drunk drivers from the state’s highways. To this end, the implied consent law must be liberally construed to effectuate its policies and to further its legislative purpose.⁷⁰ Commensurate with the implied consent law is the overarching legislative intent “to encourage the vigorous prosecution of offenses concerning the operation of motor vehicles by persons under the influence of an intoxicant, a controlled substance, a controlled substance analog or any combination of an intoxicant, controlled substance and controlled substance analog…or under the combined influence of an intoxicant and any other drug to a degree which renders him or her incapable of safely driving or having a prohibited alcohol concentration.”⁷¹ The legislative intent and design of these laws can best be fulfilled through the equal treatment of chemical test evidence obtained under the implied consent law, whether it is blood or breath test results.

_______________________

1. Wis. Stat. § 343.305. Unless otherwise noted, all references in this article to the Wisconsin Statutes are to the 2001-02 Wisconsin Statutes.

2. Id.

3. Wis. Stat. § 885.235(1g).

4. State v. Ehlen, 119 Wis. 2d 451, 351 N.W.2d 503 (1984).

5. M. Cathleen Huber, ADA, Outagamie County District Attorney’s Office, response to the Resource Center on Impaired Driving, “Promoting Breath Testing in Wisconsin Questions for Assistant District Attorneys,” 1/13/03 (on file with author).

6. Douglas Martin, “Robert F. Borkenstein, 89, Inventor of the Breathalyzer,” New York Times, Aug. 17, 2002.

7. Patrick Harding, Supervisor, Toxicology Section, Wisconsin State Laboratory of Hygiene in a meeting on Aug. 26, 2002.

8. J. Maney, M. Morris, T. Scribbins, “Breath Testing 101,” 9^th Annual Traffic and Impaired Driving Law Program, April 15-16, 2003.

9. Thomas J. Hammer, “Implied Consent and Chemical Tests for Intoxication,” Traffic Law and Practice in Wisconsin, §7.4 (2d ed. 1995).

10. Id., §7.3, citing State v. Nordness, 128 Wis. 2d at 33, 381 N.W.2d at 307; State v. Welsh, 108 Wis. 2d 319, 336-37, 321 N.W.2d 245, 254 (1982), rev’d on other grounds sub nom. Welsh v. Wisconsin, 466 U.S. 740 (1984), State v. Scales, 64 Wis. 2d at 494, 219 N.W.2d at 292.

11. “Alcohol concentration” means any of the following:

Wis. Stat. § 340.01(1v).

12. Wis. Admin. Code § 311.01 (May 1997).

13. Wis. Admin. Code § 311.04(1) (May 1997).

14. Wis. Stat. § 343.305(6)(b).

15. Wis. Stat. § 343.305(6)(c)1.

16. Wis. Stat. § 343.305(6)(c)3.

17. Wis. Stat. § 343.305(6)(c)2.

18. Wis. Stat. § 343.305(5)(b).

19. 184 Wis. 2d 262, 516 N.W.2d 774 (Ct. App. 1994).

20. Penzkofer, 184 Wis. 2d 262, 266, 516 N.W.2d 774, 776 (Ct. App. 1994).

21. See State v. Brycki, No. 00-2900/01-031900-2900 & 01-0319-CR (Ct. App. Aug. 21, 2001) holding that the phlebotomist was authorized to draw defendant’s blood under § 343.305(5)(b) because she worked at a hospital, it was her job to withdraw blood; and she was under the general supervision of the hospital. However, where no indication is made on the Blood/Urine Analysis form of the person’s position with the hospital who drew the blood and that person does not testify at trial, the evidence is insufficient to establish that a person authorized under the statute completed the blood withdrawal. See State v. Wyczawski, No. 01-0702 (Ct. App. Dec. 5, 2001).

22. Wis. Stat. § 343.305(6)(a).

23. Id.

24. Wis. Stat. § 885.235.

25. 119 Wis. 2d 451, 351 N.W.2d 503 (1984).

26. 119 Wis. 2d 461, 351 N.W.2d 492 (1984).

27. 119 Wis. 2d 305, 349 N.W.2d 739 (Ct. App. 1984).

28. Dwinell, 119 Wis. 2d 305, 308, 349 N.W.2d 739, 741, citing In Matter of Suspension of Operating Privilege of Bardwell, 83 Wis. 2d 891, 900, 266 N.W.2d 618, 622 (1978).

29. Id., at 309, citing City of Berlin v. Wertz, 105 Wis. 2d 670, 674, 314 N.W.2d 911, 913 (Ct. App. 1981).

30. Dane County and Winnebago County responses to the Resource Center on Impaired Driving, “Promoting Breath Testing in Wisconsin Questions for Assistant District Attorneys,” 2002 (on file with author).

31. City of Oshkosh response to the Resource Center on Impaired Driving, “Promoting Breath Testing in Wisconsin Questions for City Attorneys,” 2002 (on file with author).

32. Letter from Thomas J. McAdams, assistant district attorney, Milwaukee County District Attorney’s Office, to Nina J. Emerson, U.W. Resource Center on Impaired Driving, Nov. 18, 2002, (on file with author).

33. Dane County response, supra note 30.

34. City of Merrill response, supra note 31.

35. State v. Baldwin, 212 Wis. 2d 245, 248, 569 N.W.2d 37, 38 (Ct. App. 1997).

36. State v. Busch, 217 Wis. 2d 429, 433-434, 576 N.W.2d 904, 905 (1998).

37. David Doege, “Blood-alcohol challenges have DAs worried,” Journal Sentinel, Aug. 18, 1997.

38. Cary Segall, “Ruling: Breath test must be DOT-certified,” Wis. St. J., July 3, 1997.

39. Christopher Mutschler, “Putting a Ford engine in a Chevy chassis—is it a Forlet or a Chevord? The unapproved ‘upgrading’ of the 6400 series Intoxilyzer 5000,” Drinking/Driving Law Letter, Vol. 16, No. 17, August 15, 1997.

40. 212 Wis. 2d 245, 569 N.W.2d 37 (Ct. App. 1997).

41. John Sobotik, “Ask Sobotik,” The Wisconsin Prosecutor, August 1997.

42. 217 Wis. 2d 429, 576 N.W.2d 904 (1998). At the court of appeals level, the Busch decision was consolidated with State v. Baldwin, 212 Wis. 2d 245, 569 N.W.2d 37 (Ct. App. 1997). The Wisconsin Supreme Court granted Busch’s petition for review, see State v. Busch, 212 Wis. 2d 687, 569 N.W.2d 589 (1997), but denied Baldwin’s petition for review, see State v. Baldwin, 212 Wis. 2d 688, 569 N.W.2d 590 (1997).

43. Cary Segall, “Breath-test results upheld in drunken driving cases,” Wis. St. J., May 1, 1998.

44. David Ziemer, “Presumption attaches to Intoxilyzer Series 6600,” Wisconsin Opinions, May 6, 1998.

45. 217 Wis. 2d 429, 448 576 N.W.2d 904, 911 (1998).

46. City of Lake Mills response, supra note 31.

47. Wisconsin State Patrol, Basic Training Program for Breath Examiner Specialist, Student Study Guide, rev. 7/1/92.

48. U.W. Law School Resource Center on Impaired Driving, A Wisconsin Prosecutor’s Manual For OWI Cases, Nov. 2001.

49. Dane County response, supra note 30.

50. Sheboygan City Attorney’s response, supra note 31.

51. Laura Liddicoat & Susan Hackworthy, “Alcohol Testing Stats,” e-mail correspondence dated 8/28/02 (on file with author).

52. Hammer, supra note 9, § 7.21.

53. Dane County and Outagamie County responses, supra note 30.

54. City of DePere response, supra note 31.

55. City of Sheboygan response, Id.

56. Id.

57. Winnebago County’s response, Id.

58. City of Oshkosh response, Id.

59. Id.

60. The city attorney states, “We believe we can assess this fee under Sec. 800.10 and Sec. 814.66.” Green Bay’s response, supra note 31.

61. City of Merrill’s response, Id.

62. “Alcohol Breath Test Machine’s Accuracy Disputed Nationally,” (June 14, 1996) http://www.drunkdrivingdefense.com/media/machnrel.html.

63. Id.

64. R. Essen, A.T. Lipson, L.H. Golburgh, “Why the Intoxilyzer Isn’t Worth a ‘Blank:’ We prove It’s Not Accurate, Precise, Reliable,” DWI Journal, Vol. 11, No. 6, June 1996.

65. Mary Catherine McMurray, “Demystifying the Intoxilyzer 5000,” Intoxication Test Evidence, 34-1 – 34-18 (2^nd ed. 1995).

66. E.F. Fitzgerald & D.N. Hume, “Challenging the Breath-Test Machine,” Intoxication Test Evidence: Criminal and Civil, 555-667 (Cum. Supp. Feb. 1994).

67. L. Taylor, Drunk Driving Defense, 293-515, 295 (5^th ed. 2000).

68. These are only estimates, as reported by each state, FAX from Pat Harding, Wisconsin State Laboratory of Hygiene to the Resource Center on Impaired Driving (Sept. 30, 2002)(on file with author).

69. A.W. Jones, “Medicolegal Alcohol Determinations—Blood or Breath Alcohol Concentration?” Forensic Science Review, Vol. 12, No. One/Two, Jan. 2000.

70. Hammer, supra note 9, § 7.3.

71. Wis. Stat. § 967.055(1).