Note: federal habeas relief was subequently granted, Richard M. Fischer v. Ozaukee Co. Circ. Ct., ED Wis No. 10-C-553, 9/29/10. Federal appellate and district court cases don’t bind Wisconsin courts, which therefore needn’t follow this habeas decision, e.g., State v. Mechtel, 176 Wis. 2d 87, 94-95, 499 N.W.2d 662 (1993), except of course to observe the mandate in Fischer’s particular case.
Expert Opinion, Partly Based on PBT, Inadmissible per § 343.303
Express statutory bar on PBT results, § 343.303, precludes admissibility of expert opinion based on those results, notwithstanding that expert opinion generally may be based on inadmissible data, § 907.03.
¶25 Fortunately, in this case, the legislature’s policy decision regarding the absolute inadmissibility of the PBT results under these circumstances simply could not be clearer. Reading the statutes together to create an exception to Wis. Stat. § 907.03 by excluding expert evidence to the extent that it is based on prohibited PBT results comports with our obligation to give effect to the legislature’s intent. The alternative would likely nullify Wis. Stat. § 343.303 whenever a party attached the opinion or report of an expert to the PBT result it wished to get before the jury.
Thus: categorical bar on PBT results, not only in terms of direct admissibility but expert opinion based even partly on those results—at least in the types of cases covered by § 343.303, which are: §§ 346.63 (OWI), 940.25 (injury by intoxicated use), 940.09 (homicide by intoxicated use). Nonetheless, an expert often must base his or her opinion information that itself is inadmissible.
¶20 The thorny question of what to do with inadmissible evidence that experts rely upon as a basis for an opinion is one that has proved difficult to answer with a fair and workable rule.
¶21 Law professor Daniel Blinka concisely summarizes the practical difficulty of explaining the bases for expert opinions when they include inadmissible evidence, and the unsatisfactory options for resolving the question ….
Why, then, doesn’t § 907.03 (inadmissible facts or data need not themselves be admissible, if of type relied on by experts) apply here? Mostly because a specific, clearly expressed statute creates categorical inadmissibility: § 343.303 is an exception to § 907.03, rather than the other way around.
And, assuming without deciding that an expert opinion based at least partly on inadmissible PBT results has probative value and is necessary to the defendant’s case, the constitutional right to present this evidence “is nonetheless outweighed by the State’s compelling interest in excluding the expert evidence based on PBT results,” ¶32.
¶5 Fischer argues that excluding the expert’s opinion violates his right under the constitutions of the United Statesand Wisconsin to present a defense. We disagree. In United States v. Scheffer, the United States Supreme Court held that state rules that result in exclusion of defense evidence are constitutionally valid “so long as they are not ‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve.’” … For reasons explained herein, we hold that in an OWI prosecution, even if a defendant establishes a constitutional right to present an expert opinion that is based in part on PBT results, the right to do so is outweighed by the State’s compelling interest to exclude that evidence. Permitting the use of that evidence as the basis for an expert opinion would render meaningless the legislature’s act forbidding such evidence in OWI prosecutions, an act that promotes efficient investigations of suspected drunk driving incidents and furthers the State’s compelling interest in public safety on its roads. The legislature’s decision limiting the admissibility of PBT results helps law enforcement officers do their jobs with more cooperation from drivers than they would otherwise be likely to get——cooperation that is especially critical given that a PBT may be requested when an officer has a basis to justify an investigative stop but has not established probable cause to justify an arrest.
The court of appeals held that “the testing mechanism for the PBT is simply not designed so the result obtained during the investigation of a possibly intoxicated driver is accurate enough that it can be used to help a jury determine the driver’s guilt or innocence,” 2008 WI App 182, ¶17. The supreme court, while not quite rejecting that holding, expressly “take[s] a different approach,” ¶34, namely one that assumes PBT accuracy. As the majority goes on to concisely explain, the lower court’s approach simply trades one problem for another: “Wisconsin’s tradition of leaving the weight and credibility of the evidence to the trier of fact, which continues to be the law, cannot be squared with an analysis that excludes evidence on the basis of its lack of reliability,” ¶34.