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OWI ruling splits state Supreme Court

Luis Rocha-Mayo

Luis Rocha-Mayo

A judge’s decision to allow a doctor to testify to the intoxication of a drunken-driving defendant can be considered a “harmless error,” the Wisconsin Supreme Court ruled Friday, because it was not the evidence that led the jury to find him guilty.

In a 4-3 decision that spurred a concurrence and two dissents, the justices upheld Luis Rocha-Mayo’s conviction of reckless homicide, homicide by intoxicated use of a vehicle and recklessly endangering safety. The case revolved around a prosecutor’s use of a preliminary breath test given by a doctor as evidence of intoxication following a car crash.

Preliminary breath tests are not automatically admissible by defendants in the cases, though there is no case law regarding whether prosecutors can use them.

In its ruling, the court did not decide whether someone other than a police officer can administer an admissible test. The court sidestepped the issue by assuming – but not deciding whether – the judge’s admission of the test was a harmless error. Even if it was an error, the court said, there still was enough evidence to convict Rocha-Mayo.

Rex Anderegg, Rocha-Mayo’s attorney, said the court’s decision was disappointing, not only because of his client, but because of how the court passed over the issues.

“They could have gone through the whole analysis and said it was an error and harmless and gotten the same result,” the attorney with Anderegg & Associates of Milwaukee said.
“But then we would have had some guidance.”

Rocha-Mayo is serving a 10-year prison sentence in the case, which resulted after he left a Kenosha bar in 2008 and was involved in a high-speed chase and crash that killed motorcyclist Travis Bestwick.

According to the decision, which was authored by Justice Patrick Crooks, Rocha-Mayo admitted to drinking that night and while driving. He said, though, that fellow motorcyclist Jason Walters threw a baton into his back window after he got mad that the cyclists were split up during the chase.

When Rocha-Mayo got to the hospital, he was acting disoriented, so a doctor gave him a breath test, which showed a 0.086 blood alcohol content.

The state Supreme Court, in its decision, said the jury heard evidence of the speed of the chase and Rocha-Mayo’s alcohol consumption, in addition to the test.

“It is clear beyond a reasonable doubt that the jury would have found the defendant guilty absent the alleged errors,” according to the decision.

Still, OWI attorneys said it is hard to prosecute a drunken driving case without any sort of test, as that is usually a crucial piece of evidence.

Andrew Mishlove, an OWI defense attorney with Mishlove & Stuckert LLC, Milwaukee, said juries want something that is objectively measured as proof.

“The absence of that is a huge factor for the jury,” Mishlove said.

Chief Justice Shirley Abrahamson, in a dissent, said the doctor should not be allowed to testify to whether Rocha-Mayo was intoxicated because he was not testifying to the legal definition of being “under the influence of an intoxicant” when the crash happened. This, she said, is different than the medical definition of “intoxicated.”

Abrahamson also pointed out that the doctor was not able to testify to Rocha-Mayo’s intoxication at the time of the crash.

“So, I ask, what is the relevance of the doctor’s expert opinion about the defendant’s intoxication in the emergency room?” Abrahamson wrote. “Is it relevant because it enables a jury to infer from the doctor’s testimony that the defendant, who was intoxicated at the hospital, had a materially impaired ability to operate a vehicle at the time of the accident?”

Justice David Prosser, in a dissent joined by Abrahamson and Justice Ann Walsh Bradley, pointed out there is a lot more to the case than what the majority looked at. For one, he noted that it took the jury 20 hours over four days to come to its decision, which, he wrote, indicates it is clear that the test was directly linked to the jury’s decision.

“When a jury has deliberated for 20 hours before convicting a defendant, facile assurances that critical errors in the trial were harmless to that defendant can be unpersuasive and unsettling,” according to the dissent.

He also said the majority is “ducking the vital issue that should be decided and burying the reasons for an ‘inadmissibility’ ruling.”

Both Mishlove and Anderegg said Prosser’s dissent was spot on. Anderegg said he went to “great lengths” to let the justices know about the facts of the case, which Prosser detailed in his dissent.

“It is one of the worst harmless error decisions I’ve ever read,” Anderegg said.

About Eric Heisig

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