10-C-553 Fischer v. Ozaukee County Circuit Court

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Criminal Procedure
Right to present defense; PBTs

Wisconsin’s ban on defendants using preliminary breath tests, sec. 343.303, violates the right to present a defense.
“On one side of the balance is the defendant’s interest, which is undisputedly strong. The defendant sought to utilize the PBT results as one aspect of an expert’s conclusion, which, if believed, would mean that the defendant was not guilty of the crime charged. This was not evidence that would simply raise questions regarding the prosecution’s case but rather, if accepted by the jury, would mean that Fischer was not operating with a prohibited BAC. There is no more important interest of a defendant than the opportunity to exonerate himself.”
“Located on the other side of the balance is the state’s interest in removing a disincentive for a driver to agree to a PBT. As this court previously observed, any value of removing the disincentive that may result if the PBT could be used against a driver in court is reduced, if not negated, by the fact that the driver is likewise barred from using any beneficial results of the test. Further, notwithstanding the promise not to use the results in court, a driver for whom the police lacked probable cause to arrest would still be disinclined to agree to a PBT which would provide the police with an additional opportunity to gather probable cause evidence to arrest. The state’s interest, as articulated by the Wisconsin Supreme Court, is better served by a narrower law. Permitting Fischer to utilize a PBT result in the narrow circumstances he presents does not, in any way, eliminate the ability of the legislature to empower the police to encourage a reluctant driver to agree to a PBT with the promise that it will not be used against him in court. In other words, the legislature could promulgate a law that prohibits the use of PBT results by the state against a defendant. If the expressed rationale is valid, such a law would remove a disincentive for drivers to agree to take a PBT.”
“Also in the balance is the fact that the Wisconsin Supreme Court has expressly rejected the argument that PBT evidence is inherently unreliable. Thus, this negates what other courts have recognized is a strong government interest in keeping unreliable information from the jury. See Scheffer, 523 U.S. at 309.”   10-C-553 Fischer v. Ozaukee County Circuit Court
E.D.Wis., Goodstein, J.