DOJ moves to amend federal PBT ruling

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The Wisconsin Department of Justice has moved a federal magistrate judge to alter his grant of habeas corpus to a man convicted of driving while intoxicated in state court.

The motion is relevant not just to the underlying issue — whether the right to present a defense is violated by sec. 343.303‘s prohibition on the use of preliminary breath tests (PBTs) at trials — but to the methodology federal courts should use when reviewing any state court conviction.

The DOJ contends that it is the end result, not the state court’s reasoning, that the federal court should review.

Richard M. Fischer was convicted of driving while intoxicated and driving with a prohibited blood alcohol content in Ozaukee County Circuit Court. He had sought to present expert testimony that he was actually under the prohibited BAC limit while he was driving, even if he was over the limit when the officers administered the required breath test later at the police station. The expert employed the PBT in reaching this conclusion.

The circuit court excluded the testimony on the basis that PBT tests are unreliable, and the Wisconsin Court of Appeals affirmed.

The Wisconsin Supreme Court also affirmed, but on different grounds. Three justices agreed with the lower courts that PBTs are unreliable. But four justices disagreed; instead, they concluded the State’s compelling interest in investigating and prosecuting driving while intoxicated outweighed Fischer’s right to present a defense. State v. Fischer, 2020 WI 6, 322 Wis.2d 265, 778 N.W.2d 629.

On Sept. 29, U.S. Magistrate Judge Aaron E. Goodstein granted Fischer’s petition for habeas corpus, concluding that the evidentiary rule is arbitrary and disproportionate to the purpose it was designed to serve.

On Oct. 27, the Department of Justice moved the court to alter or amend the judgment pursuant to Fed.R.Civ.P. 59(e).

The State argues that it is the result of the state court’s decision and not the reasoning that the federal court must examine.

The State’s brief argues, “the Seventh Circuit in Lopez v. Thurmer, 573 F.3d 484 (7th Cir.), cert. denied, 130 S. Ct. 760 (2009), found no due process violation despite determining that the state appellate court’s methodology was constitutionally infirm; as the federal court explained, ‘it is not the court’s methodology but its result that we review to determine whether its judgment was so infirm as to require the issuance of a federal writ of habeas corpus.’ Id. at 493.”

The brief also contends that, even if the expert testimony regarding Fischer’s PBT results were admitted, it would not undermine his conviction for operating while intoxicated, which does not depend on blood alcohol content, but on whether the driver was capable of driving safely.

David Ziemer can be reached at [email protected].