In an impressive of feat of judicial activism, the court of appeals here rewrites §343.305(5)(d) and (6)(a) and defies precedent to achieve its desired outcome: the admission of statutorily invalid blood test results at OWI trials. On Point looks forward to SCOW’s take on this published court of appeals decision.
Wiedmeyer was involved in a car accident. At the scene, he admitted to an officer that he was on prescription medications and that his doctor had advised him not to drive. The State charged Wiedmeyer with one count of OWI under §346.63(1)(a) and one count of operating while revoked under §343.44. Laboratory tests showed the presence of morphine and zolpidem in his blood. Wiedmeyer moved to suppress the results because (1) the lab analyst who performed the tests did not have the permit required to test blood for controlled substances, (2) the lab itself was not approved for performing chemical analyses of blood for controlled substances or controlled substance analogs, and (3) the Department of Health Services does not administer a program for monitoring the lab. Compliance with these requirements is necessary for a “valid” chemical analysis of blood or urine under § 343.305. See §343.305(6)(a). To be clear, the State, the defense and the court of appeals agree that these 3 prerequisites for a “valid” chemical analysis of blood or urine were not met.
Section 343.305(5)(d) provides:
At the trial of any civil or criminal action or proceeding arising out of acts committed by a person alleged to have been driving or operating a motor vehicle while under the influence of an intoxicant, a controlled substance or a controlled substance analog . . . the results of a test administered in accordance with this section are admissible on the issue of whether the person was under the influence of an intoxicant, a controlled substance or a controlled substance analog. . . . Test results shall be given the effect required under s. 885.235 [governing the admissibility of chemical tests for intoxication.]
So, if the tests performed on Wiedmeyer’s blood were not administered in accordance with “this section,” then how are they admissible? The answer, according to the court of appeals, is immediately clear to anyone schooled in formal logic:
Wiedmeyer reasons that because para. (5)(d) grants admissibility for results in compliance with para. (6)(a), test results that do not comply with para. (6)(a) must therefore not be admissible. The rules of logic do not work this way. This is the logical fallacy of denying the antecedent. Another example of this fallacy would be: “If Wiedmeyer had too much to drink, then he was intoxicated. Wiedmeyer did not have too much to drink. Therefore, he was not intoxicated.” This syllogism does not work. While having too much to drink is a sufficient condition to cause intoxication, alcohol is not the only way one can become intoxicated. The facts of this case illustrate the point: the complaint here averred that Wiedmeyer was intoxicated by prescription drugs, not alcohol. Similarly, para. (6)(a) is not the sole means of admissibility for chemical test results. Just because para. (5)(d) provides for admissibility if a certain procedure is followed does not preclude the admission of test results through another route. Slip op. ¶10.
What other route? The court does not say other than mentioning, in passing, that §907.02 allows the admission of “scientific testimony if it would be helpful to the trier of fact.” Slip op. ¶8. Guess what kind of scientific testimony is not helpful to the trier of fact? Unreliable, inaccurate, or invalid scientific testimony. See §907.02(1) and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Just as importantly, see State v. Felton, 2012 WI App 114, ¶12, 344 Wis. 2d 483, 824 N.W.2d 871 (noting that §343.305(6)(a) provides assurance of accuracy for blood tests results to be received as evidence at trial) and Winnebago County v. Christenson, 2012 WI App 132, ¶20, 345 Wis. 2d 63, 823 N.W.2d 841 (unpublished) (suggesting that violations of §343.305(6)(a) render test results automatically inadmissible). And for good measure, see State v. Peotter, 108 Wis. 2d 359, 366, 321 N.W.2d 265 (1982), which suggests that a defendant may object to the admissibility of these test results if the lab analyst does not possess the required permit.
If you are wondering about the implications of this decision, stop! According to the court of appeals, implications are not a relevant inquiry:
The proper question is simply what § 343.305 means. Even if the resulting interpretation had caused great inconvenience to OWI prosecutions, this would not render the results absurd. Rather, it would mean that the State—by not establishing the required permit system—was not following the law. It is not up to the courts to rewrite the plain words of statutes to further the public policy goals the legislature hopes to accomplish. Designing a statutory scheme that accomplishes its goals is up to the legislature. Whether they do that well or not, and whether the executive branch complies with statutory directives, is immaterial to the limited judicial task of saying what the law is. See Marbury v. Madison, 5 U.S. 137, 177 (1803) (“It is emphatically the province and duty of the judicial department to say what the law is.”). Slip op. ¶13.
The court of appeals does helpfully suggest ways that practitioners might brush up on their formal logic. For “recreational reading” we should see Stephen M. Rice, Conventional Logic: Using the Logical Fallacy of Denying the Antecedent as a Litigation Tool, 79 Miss. L.J. 669 (2010) and a Wiki article called Denying the Antecedent See Slip op. fn. 7. Thank you, court of appeals! We promise to consult these sources for future briefs.