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COA affirms trial court’s refusal to permit testimony that OWI arrestee asked for breath test

State v. Travis D. Huss, 2021AP1858, 7/20/22, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)

Huss was stopped at 1 a.m. for going through a flashing red light without stopping. The officer suspected he was impaired and eventually arrested him for OWI. Huss asked the officer to give him a preliminary breath test before she arrested him, but the circuit court excluded evidence of his request from being admitted at trial. The court’s ruling was not an erroneous exercise of discretion.

During the stop, Huss was unwilling or unable to perform field sobriety tests (Huss wasn’t making a lot of sense and talking rapidly, including referring to evidence he had regarding conspiracies the MEG unit). After concluding Huss was “messing” with her while any alcohol metabolized, the officer arrested him. (¶2).

At trial Huss challenged the thoroughness of the police investigation and also raised a “curve” defense—that his blood alcohol content was rising at the time he was arrested, and so wasn’t the 0.109 found in the test of his blood after his arrest. As part of that defense, Huss wanted to present evidence that he’d asked the officer to give him a preliminary breath test, but the officer refused, saying (correctly) she didn’t have to. (¶¶3, 5). Though Huss acknowledges evidence of the PBT would have been inadmissible, §343.303, he argued his request to do the test shows consciousness of innocence. (¶12).

The circuit court’s refusal to admit the evidence wasn’t an erroneous exercise of discretion:

¶14     …. In this case, the court considered whether the relevance or probative value of the evidence pursuant to Wis. Stat. §§ 904.01 and 904.02 outweighed the danger of unfair prejudice pursuant to Wis. Stat. § 904.03. The court engaged in such an inquiry. The court articulated its assessment of the relevance of the evidence, stating that the evidence was only minimally probative, or in the court’s words, “minorly relevant [sic].” The court stated that the evidence might have shown that Huss was able to pick and choose which evidence he would provide to law enforcement. However, when weighing the evidence against the prejudicial impact, § 904.03, the court found that the prejudicial impact of the evidence significantly outweighed its probative value. The court explained:

And procedurally, it’s not considered a field sobriety test. It’s really a confirmation of the field sobriety test. And the officers aren’t required to do that anyway. There’s not even a law saying they have to do a field sobriety test and then if they find probable cause, they have to confirm it through a PBT test. And I just think it would confuse the jury about the officer’s legal obligation, and its value in this trial would be minor compared to the confusion and the officer’s belief or obligations to follow this procedure, and you know, which she’s not required to do.

¶15     We find no erroneous exercise of discretion. The court considered the correct legal standard. The court correctly explained the law. The court reasonably assessed the danger of confusing the jury—because the law does not require officers to even offer any field sobriety tests or a PBT, the jury would need extensive education during the trial as to how to consider this evidence. The results of the PBT would have been inadmissible in any event. The jury would be left wondering what happened.

Nor did the exclusion of the evidence violate Huss’s right to present a defense, for the the evidence was not “essential” to his two defenses—an insufficient investigation by the officer and the BAC curve—and didn’t leave Huss with no reasonable means to defend his case, State v. Williams, 2002 WI 58, ¶¶69-70, 253 Wis. 2d 99, 644 N.W.2d 919. The jury heard testimony of both the officer and Huss and viewed the interaction between Huss and the officer (minus the PBT request) on the body-cam video, which allowed trial counsel to highlight what he viewed as the incompleteness of the investigation and argue the officer lost her composure after eight minutes and said she was done, arresting Huss even though the evidence didn’t support that action. (¶18). Further, Huss was able to present the curve defense through the State’s expert, who testified about the “curve” based on Huss’ testimony about what he drank, and when (eight beers, and a shot with a Jack and Coke around 12:30 a.m.) and calculated Huss’s BAC could have been anywhere between .077 and .087 at the time of the stop, and the state and defense argued to the jury about these numbers. (¶¶20-22).

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