02-0782-CR State v. Naff

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Derek Naff appeals from his conviction for operating a motor vehicle with a prohibited alcohol concentration. Naff contends that the trial court erroneously denied his motion to suppress evidence stemming from his arrest. He argues that the results of his Preliminary Breath Test (PBT) could not be considered in the arresting officer’s probable cause determination because he did not consent to the test, and that without such results there was no probable cause to arrest. Additionally, Naff claims that the trial court erred by refusing to allow into evidence excerpts from a State manual entitled “Basic Training Program for Breath Examiner Specialist.” Finally, Naff argues that the trial court improperly refused to instruct the jury on the effect of the blood alcohol curve.

We conclude that: (1) there was probable cause to arrest even absent the PBT; (2) the trial court did not erroneously exercise its discretion when it excluded the excerpts from the State manual; and (3) refusal to give the proposed jury instruction was a proper exercise of discretion because the evidence did not support the instruction.

Not recommended for publication in the official reports.

Dist IV, Dane County, Schwartz, J., Dykman, J.

Attorneys:

For Appellant: Michael C. Witt, Jefferson

For Respondent: Karie Cattanach, Madison