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No error in limiting cross examination and rejecting offer of proof about FSTs at refusal hearing

State v. Kyle R. Christoffersen, 2014AP1282, District 2, 1/28/15 (1-judge decision; ineligible for publication); case activity

The judge at Christoffersen’s refusal hearing didn’t violate Christoffersen’s due process rights when it limited cross-examination about the arresting officer’s training on, and administration of, field sobriety tests and refused to allow Christoffersen to make an offer of proof by questioning the officer. (¶¶5-7, 14).

¶12      The [circuit] court reasoned that Christoffersen’s cross-examination about the FSTs was irrelevant to the determination of probable cause, because the plausible facts, even without the FSTs, supported probable cause. We agree. The court heard testimony that Christoffersen had crossed over the yellow traffic line at least five times and onto the median shoulder; had swerved within the lane of traffic; took two minutes to pull over; had incoherent, mumbling speech; gave contradictory answers to questions; had a car that smelled of intoxicants; had watery, bloodshot eyes; admitted he had been drinking; swayed while standing to perform the FSTs; and had an odor of alcoholic beverages on his breath. The officer’s account is plausible, and the facts therein added up to probable cause, even without the FSTs. See [Washburn County v. Smith, 2008 WI 23], ¶36[, 308 Wis. 2d 65, 746 N.W.2d 243]. The court did not erroneously exercise its discretion in limiting cross-examination on [Officer] Moschea’s training and the administration of the FSTs because the FSTs were not necessary and therefore not relevant to the court’s determination of probable cause in this case. See Desjarlais v. State, 73 Wis. 2d 480, 502, 243 N.W.2d 453 (1976) (wide open cross-examination rule does not permit admission of irrelevant matters).

Having upheld the circuit court’s relevancy ruling, the court of appeals then holds “[t]here was no error in not allowing counsel to make an offer of proof where the proof would have been unnecessary and therefore irrelevant. See State v. Dundon, 226 Wis. 2d 654, 674, 594 N.W.2d 780 (1999) (holding that it is not error for a circuit court to exclude evidence where it is clear that an offer of proof could not have shown that the evidence was relevant); 75 Am. Jur. 2d Trial § 374 (2007) (‘Offers of proof must consist of relevant proof.’).” (¶14).

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