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Do dentures distort breathalyzer test results?

State v. Mark K. Schrick, 2013AP1166-CR, District 4, 12/27/13 (1-judge decision, ineligible for publication); case activity

Actually, this case concerns more than just dentures.  A jury convicted Schrick of operating a vehicle with a prohibited alcohol concentration in violation of §346.63(1)(b). On appeal, Schrick challenged (1) the trial court’s decision to deny his motion for a directed verdict, (2) the sufficiency of the evidence supporting his conviction, and (3)  a jury instruction saying that by statute the administered breath test was considered accurate.  All three arguments turned on the facts that the officer who performed the breathalyzer test did not follow administrative code procedures, and Schrick was wearing dentures when he blew into the testing device.

The court of appeals’ decision affirming the conviction rested on two principles.  First, the State’s non-compliance with administrative code provisions goes to the weight, not the admissibility, of the breathalyzer test results.  See City of New Berlin v. Wertz, 105 Wis. 2d 670, 674, 677, 314 N.W.2d 911 (Ct. App. 1981).  Second, the statutory presumption of accuracy that attaches to a breathalyzer test” extends only to the validity of the underlying scientific process.”  Slip op., ¶17.  Despite the presumption, a defendant may still argue that the machine was not in good working order or that the officer operated the machine incorrectly.  Id.

Directed verdict/sufficiency of evidence.  Those two principles pretty much took the bite out of Schrick’s appeal.  The trial record contained some evidence that: (1) the officer had administered the breath test correctly, (2) the sole expert witness regarding dentures had relied on a 1995 study, which had used an outdated breathalyzer, and (3) the denture expert never examined the breathalyzer used in this case; he estimated Schrick’s BAC based on Schrick’s testimony alone.  Since the standards for reviewing the denial of a directed verdict and the sufficiency of the evidence require the court of appeals to view the evidence most favorably to the State and the conviction, Schrick lost both of these arguments.

Jury instruction.  Schrick argued that the trial court should not have instructed the jury on the statutory presumption of reliability of the breath test because the officer administered it incorrectly.  But, again, the point took no skin off the court of appeals’ teeth.

¶29 . . . Consistent with the statutory presumptions analysis set forth above, the jury instruction informed the jury that the method used by the testing device, here the Intox EC/IR II Breathalyzer, was scientifically reliable. However, the jury instruction also informed the jury that in assessing whether Schrick was guilty of operating with a prohibited alcohol concentration, it was required to determine whether the State proved that the testing device was correctly operated by a qualified person. Accordingly, the jury instruction correctly informed the jury that while the method employed by the testing device was scientifically reliable, the jury still needed to weigh the evidence to determine whether the operation of the test was proper. Wertz, 105 Wis. 2d at 674



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