At Diehl’s trial for operating with a blood-alcohol content exceeding .02, the state asked the arresting officer and Diehl himself multiple questions that invited the jury to infer he had multiple OWI convictions. Because these questions were irrelevant and unfairly prejudicial, trial counsel was ineffective for failing to object to them, and Diehl is entitled to a new trial.
After Diehl was stopped because his registration was expired, police learned he was subject to the .02 BAC limitation because of his prior 8 OWI offenses. (¶3). Diehl admitted having 2 or 3 beers. A test of the blood taken from him about 2 hours after the stop showed he had a BAC of .031. (¶4). Charged with operating with a prohibited alcohol concentration, Diehl went to trial. He stipulated to his prior convictions, so under State v. Alexander, 214 Wis. 2d 628, 646, 571 N.W.2d 662 (1997), evidence of his prior convictions was inadmissible. (¶¶5, 11-14).
Yet, at trial the prosecutor elicited from the officer that Diehl’s “blood alcohol was restricted to a .02” and that the “normal” PAC is .08. (¶6). The prosecutor also asked multiple questions of Diehl during cross as to whether he knew he was subject to the “.02 restriction.” (¶7). Diehl’s lawyer didn’t object to any of these questions, and, when asked at the Machner hearing, wasn’t able to recall any strategic reason for not objecting. (¶9).
In light of Alexander, trial counsel’s failure to object constitutes deficient performance. First, the questions and answers were irrelevant:
¶17 We agree with Diehl that much of the challenged questioning and testimony is not relevant because it did not have any tendency to make any fact of consequence more or less probable. To be sure, the fact that Diehl’s PAC was .02 was relevant, since the jury would have to find that his blood alcohol concentration exceeded that standard to convict him…. However, the challenged questioning and testimony also relates to two other topics: whether Diehl’s PAC was lower than the “normal” PAC, and whether he was aware that he was subject to a PAC restriction. Neither of these topics is relevant. Evidence of the “normal” PAC does not make it more or less probable that Diehl drove with a blood alcohol concentration above .02. And evidence of Diehl’s knowledge or lack of knowledge of any restriction that applied to him could have no bearing on the jury’s verdict, since intent is not an element of an OWI charge.
Being irrelevant, they have no probative value, and so are substantially outweighed by the danger of unfair prejudice recognized by Alexander:
¶23 Diehl persuasively explains why the jury would have understood that he had multiple prior OWI convictions as a result of the irrelevant questioning in this case. The direct examination of the arresting officer came first, and it emphasized that Diehl’s legal status was different from most people’s. The jury would naturally wonder why Diehl’s PAC was lower than “normal,” and the prosecutor’s cross-examination of Diehl later supplied the answer by definitively linking the restriction to his prior convictions.
¶24 In response to an initial question about whether Diehl knew his PAC was “restricted,” Diehl explained that he was “not on probation anymore,” and that he thought the restriction was in place “only … during probation.” The prosecutor repeated his question and then asked Diehl if he had been convicted of any crimes. Diehl answered “Yeah. Twice,” and the prosecutor immediately followed up with: “So you didn’t know that you—at this time you didn’t know that you were under any restriction?” This exchange raises the obvious inference that the reason Diehl was subject to a “restriction” was his prior convictions. And jurors with even a basic understanding of Wisconsin’s OWI laws would have understood that the prior convictions were probably OWIs. ….
¶25 We acknowledge that the evidence that was determined to be unfairly prejudicial in Alexander is a variation on the evidence at issue in this case. In Alexander, the unfairly prejudicial evidence was a stipulation that the defendant had prior “convictions, suspensions, or revocations as counted under section 343.307(1) of the Wisconsin Statutes.” 214 Wis. 2d at 638. Here, by contrast, the prosecutor’s questions and the resulting testimony appeared to invite the jury to infer that Diehl had such prior convictions. Despite this difference, the danger of unfair prejudice is the same. In both cases, the inference that the defendant has multiple prior OWI convictions communicates to jurors “that the defendant has had a problem in the past, probably with drinking and driving,” Alexander, 214 Wis. 2d at 650, that “the current charge is part of a pattern of behavior,” and that “even if the defendant is not guilty on the particular occasion charged, the defendant likely committed the same offense on many other occasions without being caught,” [State v.] Warbelton, [2009 WI 6,] 315 Wis. 2d 253, ¶47[, 759 N.W.2d 557].
Thus, had trial counsel objected, the trial court would have been obliged to sustain the objection. (¶32). And a reasonably competent attorney defending the case would have been aware of Alexander, should have been concerned about the “extremely high danger of unfair prejudice” created by the prosecutor’s questions, and thus would have taken steps to prevent the testimony. (¶¶36-37).
And trial counsel’s failure prejudiced Diehl’s defense, given that the only disputed issue at trial was whether his BAC was above or below .02 when he was driving:
¶40 We recognize that .02 is a low blood alcohol concentration, and in many cases, the quantum of proof needed to show that a defendant was above that limit will be readily satisfied. Here, however, it is not clear that the evidence favored the State. It was undisputed that when Diehl’s blood was drawn almost two hours after the stop, his blood alcohol concentration was .031, only marginally above his legal limit. Although the State’s forensic toxicologist testified about the process she used to determine the alcohol concentration in the sample of Diehl’s blood, she was not asked about what it would have been at the time of his arrest. Only Diehl’s expert witness addressed this question, and he testified that Diehl’s blood alcohol concentration at that time was likely below .02. Diehl’s expert based his analysis on his understanding of the drinks that Diehl had consumed and research about the rate at which human bodies generally process alcohol. He opined that there had not been sufficient time for Diehl’s body to absorb enough alcohol to bring his blood alcohol concentration up to .02 at the time he was stopped.
¶42 Our conclusion is consistent with the view of the circuit court, which explained: “I recall thinking the Jury could go either way in this case ….” Diehl had a credible defense to the charge, and the jury had to evaluate the evidence and decide whether the State had met its burden to prove each element beyond a reasonable doubt. The unfair prejudice resulting from the inference that Diehl had prior OWI convictions could have easily tipped the balance in the State’s favor. For example, the jury could have concluded that a repeat OWI offender was more likely to lie about matters related to drinking and driving, or it could have resolved close questions in the State’s favor because Diehl’s multiple OWI convictions meant he was “a bad person [who] deserves punishment.” Alexander, 214 Wis. 2d at 643. The jury could also have concluded that Diehl “likely committed the same offense on many other occasions without being caught,” and therefore may have convicted Diehl despite being unconvinced that there was “persuasive proof” he was guilty on the night in question. Warbelton, 315 Wis. 2d 253, ¶47.
¶43 These potential effects undermine our confidence in the reliability of the proceedings. Accordingly, we conclude that there is a “reasonable probability” that, absent trial counsel’s errors, “the result of the proceeding would have been different.” Strickland [v. Washington], 466 U.S. [668,] 694 [(1984)].
The state made multiple arguments about the admissibility of this evidence, about why trial counsel might reasonably have decided not to object, and why the evidence doesn’t meet the prejudice standard; the court addresses them all, one by one. (¶¶18-20, 26-31, 34-36, 41). If you’re litigating PAC and OWI cases you will want to read the court’s discussion in full. In fact, if you’re handling any sort of ineffective assistance of trial counsel claim you will benefit from reading this thorough, methodical decision.