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PBT results should have been admitted

A federal court has held that the Wisconsin Supreme Court unreasonably applied federal law in State v. Fischer, 2010 WI 6, 322 Wis.2d 265, 778 N.W.2d 629, when it upheld a trial court’s exclusion of expert testimony based on the defendant’s preliminary breath test (PBT).

Magistrate Judge Aaron E. Goodstein on Sept. 29 granted a petition for habeas corpus, and ordered that Richard M. Fischer’s conviction for driving while intoxicated be vacated unless the state retries him, permitting the expert to testify.

Goodstein wrote, “The Wisconsin Supreme Court’s conclusion that the purpose of banning PBTs at trial is to keep the roads safe appears to have been made from whole cloth.”

Goodstein found that permitting defendants to use the PBT results as Fischer sought to do would provide an even stronger incentive for suspects to take the test.

“[A] suspected drunk driver might agree to take a PBT if he believed he was going to be arrested anyway and the PBT results could later be utilized as part of some sort of defense, which is, ironically, precisely what the Wisconsin Supreme Court has barred,” Goodstein concluded. “Thus in precluding the use of PBT results for any purpose, the Wisconsin Supreme Court’s interpretation of sec. 343.303 eliminates one of the very few incentives for a suspected drunk driver to gamble and agree to such a test.”

Case: Fischer v. Ozaukee County Circuit Court, No. 10-C-553

Related Story: Preliminary breath tests inadmissible

For a full analysis of the opinion, see the Oct. 11 issue of Wisconsin Law Journal.

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