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OWI – Evidence – Intoximeter EC/IR – Approval of Instrument by DOT

State v. Larry N. Winsand, 2004 WI App 86, PFR filed 4/12/04
For Winsand: Ralph A. Kalal

Issue: Whether results of an Intoximeter EC/IR breath test was inadmissible because approval of this testing instrument by the chief of the DOT chemical test section involved standards that should have been but were not promulgated as administrative rules under ch. 227.


¶7. The results of a test administered in accordance with Wis. Stat. § 343.305 is admissible in an OWI proceeding on the issue whether the person was under the influence of an intoxicant, and it is given “prima facie effect” without the need for expert testimony in certain circumstances. Sections 343.305(5)(d) and 885.235. The purpose of requiring the evaluation and approval of breath test instruments is to make sure the results have the accuracy that is deserving of the prima facie effect given them without an expert testifying on the accuracy. State v. Baldwin, 212 Wis. 2d 245, 260, 569 N.W.2d 37 (Ct. App. 1997)


¶9. Turning now to the definition of “rule” in Wis. Stat. § 227.01(13), we observe that Winsand does not explain precisely what should have been promulgated as a rule. He does refer to the “approval” of the instrument, but approval of a particular item or program is not in itself a rule because it is not a general order of general application. See Milwaukee Area Joint Plumbing Apprenticeship Comm. v. DILHR, 172 Wis. 2d 299, 316-17, 493 N.W.2d 744 (Ct. App. 1992). Winsand also refers to the section chief’s testimony in response to questioning that the Intoximeter EC/IR met her “standards.” However, her testimony does not describe any specific standards but, rather, describes the qualities the instrument was tested for. Therefore, if there are any standards used in the approval process that meet the definition of “rule,” they must be contained in the exhibits she identified. We examine each of the three categories of exhibits in turn.

¶10. The first category is the specifications for bidders. … We conclude this exhibit comes within the exception in Wis. Stat. § 227.01(13)(k) for action or inaction of an agency that “[r]elates to … the purchase of … equipment … by … a state agency.” The specifications for bidders without question relate to the purchase of equipment by a state agency.

¶11. The second category is an exhibit entitled “Breath Alcohol Analyzer Intrument [sic] Evaluation Protocol, March 1994.” This contains procedures for testing the instruments and consists largely of questions to be asked in evaluating the instruments. … We are satisfied that the evaluation protocol is intended as guidelines for the staff in testing the instruments and does not establish any standards of general application having the effect of law.

¶12. The third category of document is tests of various kinds that were conducted on particular Intoximeter EC/IR instruments, apparently not all the same instruments, on various dates. … The record of a test conducted on a particular instrument is not a standard of “general application.” See Id. at 316-17.

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