Preliminary breath tests inadmissible

Listen to this article

A defendant charged with operating while intoxicated cannot introduce the results of his preliminary breath test (PBT).

The Wisconsin Supreme Court unanimously held that, even assuming that the evidence is relevant and necessary to the defendant’s case, the State’s compelling interest in investigating and prosecuting crime outweighs the defendant’s need to present it.

Richard M. Fischer was stopped after a lane deviation, and he performed poorly on field sobriety tests. A PBT was performed, showing a breath alcohol content (BAC) of .11 percent.

A later blood test showed a BAC of .147 percent.

At trial, Fischer sought to introduce expert testimony that he was still absorbing alcohol into his system throughout the arrest process, and thus, at the time he was actually driving, his BAC would have been below the legal limit of .08 percent.

The evidence was excluded pursuant to sec. 343.303, and Fischer was found guilty. The Court of Appeals affirmed in a published opinion, 2008 WI App 152, 314 Wis.2d 324, 761 N.W.2d 7, based on the unreliability of PBT results.

The Supreme Court affirmed in an opinion by Justice N. Patrick Crooks, but on different grounds. Rather than find that PBT results are unreliable, the Supreme Court rested its decision on the State’s compelling interest in investigating and prosecuting the operation of motor vehicles while intoxicated.

Statutory analysis

On its face, sec. 343.303 plainly precludes either the State or the defense from presenting PBT results at trial.

Fischer argued that the evidence could be relied on by an expert as a basis for his opinion, without directly disclosing the results to the jury. But the court disagreed, concluding, “The PBT results, whether initially fully disclosed to the jury or not, would inevitably be disclosed to the jury the moment that the expert testified as to the methodology and data that underlie the opinion.”

The court acknowledged that federal rules of evidence permit the disclosure of otherwise inadmissible data used to form an expert’s opinion, but declined to adopt a similar rule for state courts.

The court also held that exclusion of the evidence did not violate Fischer’s constitutional right to present a defense.

Pursuant to State v. St. George, 2002 WI 50, 252 Wis.2d 499, 643 N.W.2d 777, the court employed a two-part test to determine whether the exclusion of evidence violates the right to present a defense.

In the first step, the court asked whether: (1) the evidence meets the standards for expert testimony generally; (2) the evidence is relevant; (3) the evidence is necessary to the defendant’s case; and (4) the probative value of the evidence outweighs its prejudicial effect.

In the second step, the court asked whether the defendant’s right to present the evidence was nonetheless outweighed by the State’s compelling interest in excluding it.

The court held that, even assuming the four factors in the first step were met, the evidence was inadmissible under the second step.

Looking to the legislative history, the court found that the purpose of sec. 343.303 is not to exclude PBT results because they are unreliable, but rather to assist the officer in deciding if arrest and further chemical analysis are appropriate.

By excluding PBT results from trials, the court found, the legislature could eliminate any disincentive not to submit to them, and encourage drivers to take the tests.

Justice Crooks wrote, “The State argues that promoting the gathering of evidence necessary to arrest those who are actually intoxicated obviously furthers the State’s compelling interest in arresting and prosecuting drunk drivers, and we agree.”

Justice Annette Kingsland Ziegler wrote a concurrence, joined by Justices Patience Drake Roggensack and Michael Gableman, emphasizing that PBT results are not reliable enough to be used at trial.

Analysis

Both of the reasons given in the lead opinion for rejecting the constitutional argument are flawed.

First, the court’s discussion of the legislative history is selective.

The court quotes the following passage from the Legislative Reference Bureau’s analysis: “Law enforcement officers are authorized to request persons suspected of driving under the influence of an intoxicant to submit to a preliminary breath test. The test results would not be admissible in any court action or proceeding where it is material to prove that the person was driving under the influence of an intoxicant, but would give the officer a basis to decide if further chemical analysis would be necessary (emphasis added by court).”

The court italicizes the final clause to emphasize the purpose of the statute, but it is actually the preceding clause that is more relevant: that the results would not be admissible “to prove that the person was driving under the influence…”

This language contemplates that the PBT results would be admissible to prove that the person was not driving under the influence.

Obviously, the language adopted in the statute eliminates this distinction. But it is nevertheless relevant to show that the state’s interest could be furthered even if the defendant could present PBT results, while the State could not.

However, the court does not even address that part of the history.

Second, the court maintains that the rule it adopts eliminates any disincentive for drivers not to take the test. However, a rule which permitted the defendant to present the results at trial, but not the State, would do far more to encourage drivers to take the test than the rule the court adopts.

Assuming that encouraging drivers to submit to PBT tests is a “compelling State interest,” the court’s rule actually undermines that interest, while a rule that allowed admission of the PBT test, but only by the defendant, would further it.