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Officer’s reference to PBT didn’t require mistrial

City of New Berlin v. Bryon R. Hrin, 2016AP239, District 2, 2/15/17 (one-judge decision; ineligible for publication); case activity (including briefs)

The circuit court properly exercised its discretion in denying a mistrial after the arresting officer’s testified that, having completed the field sobriety tests, he “administered a preliminary breath test, PBT.” (¶4).

In the course of deciding to deny the mistrial motion, the circuit court concluded that § 343.303 only prohibits the admission of the PBT result, not mention of the fact the test was administered. Hrin argues that’s wrong, and that the fact that a PBT was administered is completely irrelevant and revealing that fact improperly invited the jury to speculate that the results showed Hrin was over the limit. (¶8). The court of appeals agrees with the circuit court:

¶9    Wisconsin Stat. § 343.303 provides that “[t]he result of the preliminary breath screening test shall not be admissible in any action or proceeding” except for certain limited purposes not relevant here. The [circuit] court’s conclusion that § 343.303 only precludes evidence of the “result” of the PBT is correct as a matter of statutory interpretation…. The plain language of the current version of § 343.303 prohibits only the admission of the “result,” not the fact a PBT was administered.

¶10     Had the legislature wished to prohibit any mention of the fact a PBT was administered as well, it could have written the statute to prohibit it. We know this because the previous version of the statute did just that. The 1979-1980 version provided that “[n]either the results of the preliminary breath test nor the fact that it was administered shall be admissible in any action.” Wis. Stat. § 343.305(2)(a) (1979-80) (emphasis added). However, this statute was amended in 1981; the new version dropped the language prohibiting the fact of administration, leaving only the prohibition on admission of the result. See 1981 Wis. Laws, ch. 20, § 1568b…. The clear case law Hrin referenced in making his objection was based on this entirely different and perfectly clear previous version of the statute. See State v. Albright, 98 Wis. 2d 663, 675, 298 N.W.2d 196 (1980). The present statutory language is clear: Wis. Stat. § 343.303 prohibits the result of a PBT, not the fact of whether it was administered….

Further, the court doesn’t agree with Hrin that reference to the administration of a PBT is always irrelevant and inadmissible, though “[i]t certainly could—maybe it often is—[prejudicial,] and in the right case, perhaps enough so to warrant a mistrial.” (¶12). In this case, though, the record shows the circuit court considered the totality of the evidence, including the ample evidence of intoxication, and the effect of the casual reference to the PBT on the overall outcome. It noted that no further mention of the PBT was made and nothing in evidence indicated the result of the PBT and reasonably concluded that the “very slight” mention of the PBT was sufficiently innocuous. Thus, the court’s conclusion is a reasonable one based on a correct view of the law applied to the facts of the case. (¶¶11-13).

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