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A federal court has held that the Wisconsin Supreme Court unreasonably applied federal law 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 and permits 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.”

Fischer’s attorney, James M. Shellow, praised the ruling.

“The Wisconsin Supreme Court took the balancing test in [U.S. v. Scheffer, 523 U.S. 303 (1998)], which balanced the right to present a defense with possible jury confusion and reliability, and extended it to include the difficulties of law enforcement and the prosecution,” Shellow said.

“That was not warranted by Scheffer or any other opinion. Judge Goodstein found it was not appropriate to weigh whether it makes police officers’ jobs easier.”

Wisconsin Department of Justice spokesman William Cosh said the department is still reviewing whether it will appeal the decision.

Fischer was stopped in January 2005 in Thiensville for suspected driving while intoxicated. Some time later, a PBT was administered and registered a breath alcohol content of .11 percent. He was arrested and a later blood test registered .147 percent.

At trial for operating while intoxicated, Fischer sought to introduce expert testimony that, using both tests and extrapolating the results, Fischer had a BAC of only .04 to .067 percent at the time he was stopped.

The circuit court excluded the testimony, holding that PBTs are unreliable, and the Wisconsin Court of Appeals affirmed. State v. Fischer, 2008 WI App 152, 314 Wis.2d 324, 761 N.W.2d 7.

The Supreme Court granted review and affirmed but on other grounds. Four justices concluded that the tests are not unreliable, but that the State’s compelling interest in investigating and prosecuting the operating of motor vehicles while intoxicated outweighed Fischer’s right to present a defense.

Three justices concurred, agreeing with the lower courts that PBT results are unreliable.

Fischer filed a petition for a writ of habeas corpus in federal court, and Judge Goodstein granted the petition.

Goodstein held that the Supreme Court’s opinion was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” citing Holmes v. South Carolina, 547 U.S. 319 (2006), Washington v. Texas, 388 U.S. 14 (1967), Rock v. Arkansas, 483 U.S. 44 (1987), Chambers v. Mississippi, 410 U.S. 284 (1973), and Crane v. Kentucky, 476 U.S. 683 (1986).

To succeed in challenging a state evidentiary rule as an infringement of the right to present a defense, the party must demonstrate that the rule is arbitrary or disproportionate to the purposes it is designed to serve. Goodstein called the standard a high one, but concluded that Fischer had met it.

Goodstein acknowledged that unreliability of evidence is a valid reason to exclude its admission. But he declined to examine whether PBTs are unreliable, because that was not the rationale relied on by the four justices who signed on to the majority opinion.

Instead, he examined only on the rationale in the majority opinion, which held that the rule serves a valuable purpose when investigating suspected drunk drivers for whom there is sufficient grounds to administer a PBT, but not probable cause to arrest.

The Supreme Court concluded that barring admission of the results encourages these suspects to take the test, and thus served the legislative intent behind the rule.

However, Judge Goodstein found that it was “pure speculation” that this was the legislature’s intent.

Goodstein further 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.”

Goodstein also found that application of the rule against Fischer is disproportionate to its purpose.

Calling Fischer’s interest “undisputedly strong,” Goodstein observed, “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.”

Looking to the State’s interest, Goodstein iterated that the goal of encouraging drivers to take the PBT would be better served by a rule that permits drivers, but not the State, to use the results.

Also weighing against the State was that the Supreme Court expressly rejected the argument that PBT evidence is unreliable.

Accordingly, Goodstein held that the rule must yield to Fischer’s right to present evidence.

Before concluding, though, Goodstein cautioned that the ruling was limited to defendants’ ability to utilize PBT results as one aspect of an expert’s report, and he was not expressing any opinion on whether a defendant may directly submit PBT results into evidence.

What the court held

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

Issues: Did the Wisconsin Supreme Court unreasonably apply federal law in holding that a defendant charged with driving while intoxicated did not have the right to present expert testimony relying on his PBT test?

Holdings: Yes. The state’s purported interest in not allowing the testimony would actually be better served by allowing the evidence.

On the Web:

Preliminary breath tests inadmissible

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