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State v. Luis M. Rocha-Mayo, 2011AP2548-CR, petition for review granted

Review of per curiam court of appeals decision; case activity

Issue (composed by On Point)

Whether Wis.  Stat. § 343.303, which bars the admission of certain preliminary breath test results in motor vehicle prosecutions, applies to PBT results obtained by Emergency Room staff?

Issue (again, composed by On Point)

WIS JI- Criminal 1185, which is based upon § 885.135(2g)(c), permits a jury to find a defendant was intoxicated at the time of an accident if it is satisfied beyond a reasonable doubt that the defendant’s alcohol level was 0.08 or greater.  The issue appears to be whether a trial court may give this instruction when the only PBT result introduced into evidence failed the statutory and administrative requirements for admissibility under § 343.305.

On Point lacks access to the petition for review.  However, the difficulty in this case seems to stem from the fact that an ER nurse administered a PBT using an instrument that, according to Rocha-Mayo, was not capable of measuring the quantity of alcohol in a person’s blood. Rather, the instrument provided a result designed to aid in diagnosis and treatment of the person tested.   Indeed, the State’s court of appeals brief admits that the device did not satisfy the requirements for admissibility under § 343.305.  So, says Rocha-Mayo, either the PBT result was so unreliable it shouldn’t have been admitted and the jury should not have been instructed that it could presume that he was intoxicated based upon it.  Or, if the State is correct that the instrument was nevertheless reliable, then the PBT result should be barred under § 343.305.  The decision in this case will likely address the reliability of PBTs, a topic recently examined in State v. Richard M. Fischer, 2010 WI 6.  This prior On Point post offers an extensive analysis of Fischer and the idea that the statutory bar on PBT results precludes the admissibility of expert testimony based upon those results.

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