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Barring PBT evidence didn’t violate right to present defense

State v. Jude W. Giles, 2018AP1967-CR, District 3, 10/8/19 (one-judge decision; ineligible for publication); case activity (including briefs)

Jude’s sought to admit the results of his preliminary breath test results (.076) to lay a foundation for his expert’s opinion that alcohol was still being absorbed into his blood, making the state hygiene lab’s blood test result (.144) higher than his blood alcohol content at the time he was driving. (¶¶2-5). The circuit court properly disallowed the evidence because it runs smack dab into § 343.303 and State v. Fischer, 2010 WI 6, 322 Wis. 2d 265, 778 N.W.2d, both of which strictly prohibit the admission of PBT results.

True, the defendant in Fischer sought federal habeas relief on the theory that the statute’s bar on PBT admissibility violated his right to present a defense, and the habeas court held that our supreme court unreasonably applied federal law. Fischer v. Ozaukee County Circuit Court, 741 F. Supp. 2d 944 (E.D. Wis. 2010). But the court of appeals is bound by decisions of our supreme court, not federal district courts, State v. Lepsch, 2017 WI 27, ¶34 n.14, 374 Wis. 2d 98, 892 N.W.2d 682, and Jude’s case is factually indistinguishable from Fischer’s. So if Jude wants relief, he’ll have to look for it in federal court. (¶¶11-16).

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