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SCOW uses “harmless error” to dodge further anaylsis of statute barring use of PBT tests in OWI-related trials

State v. Luis M. Rocha-Mayo, 2014 WI 57, affirming an unpublished court of appeals decision; 7/11/14; majority opinion by Justice Crooks; case activity

Why tackle thorny legal issues surrounding Wis. Stat. §343.303’s prohibition against the use of PBTs at OWI trials when you can decide the case on harmless error grounds?  In this case, the PBT was ordered and administered by ER staff, not law enforcement. SCOW gets to pick and choose its cases. So when it grants review, the parties, their lawyers, the lower courts, and the bar hope the court will decide the legal issues, not re-review the evidence presented to the jury.  This fractured decision deserves a close look in order to understand what has and has not been decided about the use of PBTs in OWI trials.

This case stemmed from a road rage incident between the defendant, who was driving a car and admittedly had been drinking, and a group of motorcyclists.  The defendant says the motorcyclists sparked the conflict.  It is uncontested that one of them threw a metal baton at his rear window, and shattered it, while he was driving.  A race and accident ensued.  One motorcyclist and the defendant were injured.  At the hospital, an ER doctor ordered the defendant to take a PBT, which showed a .086 blood alcohol content.  The motorcyclist died.  The State charged the defendant with various non-alcohol-related crimes but then much later added “homicide by intoxicated use of a vehicle.”  None of the motorcyclists (including the baton thrower) were charged with any crimes.

At trial, the court allowed the state to introduce the PBT results obtained by a nurse (not an officer), though §343.303 prohibits the use of PBT results in OWI-related trials.  The court let the State call the ER doctor to testify that the defendant appeared to be intoxicated in the ER. And it gave a modified version of Wis JI-Criminal 1185, which instructs the jury on its use of PBT evidence.  The jury convicted on all counts.  The defendant’s appeal zeroed in on these three critical trial court decisions.  The majority opinion did not.

Justice Crooks (joined by Justices Roggensack, Gableman and Ziegler) holds that the trial court did not err in admitting the ER doctor’s expert opinion that the defendant was intoxicated at the time he was being treated because it did not embrace the ultimate issue for the jury (whether the defendant was intoxicated at the time of the accident).  And because the  ER doctor wasn’t testifying on the ultimate issue, the jury did not need a definitional instruction re “under the influence of an intoxicant” per Lievrouw v. Roth, 157 Wis. 2d 332, 351-52, 459 N.W.2d 850 (1990).  ¶¶27-28.

The majority (really, only Crooks) assumed, without deciding, that admission of the PBT results and the jury instruction were errors, sifted through the evidence, and concluded: “It is clear beyond a reasonable doubt that the jury would have found the defendant guilty.” ¶30.  On the question of the defendant’s intoxication, it highlighted the ER doctor’s testimony, the ER nurse’s testimony, and the defendant’s admission to the police that he had been drinking and had finished a partially-consumed bottle of beer while driving.¶35-36.

No developments regarding the inadmissibility of PBT results at OWI-related trials.

Here’s where things get tricky. Justice Ziegler’s concurrence (joined only by Roggensack and Gableman) opines that “as a matter of law, PBT results are neither reliable nor admissible for the purpose of proving a defendant’s intoxication or specific alcohol concentration when either is an element of the crime charged.” ¶41. Chief Justice Abrahamson’s dissent points out that she, Justice Bradley and Justice Prosser agree that the trial court erred in admitting the PBT results in this case. ¶49.

Why the distinction?  In State v. Fischer, 2010 WI 6, 322 Wis. 2d 265, 778 N.W.2d 629, the defendant sought to admit an expert’s report, based in part on PBT results, to show that his blood alcohol concentration was below the legal limit.  SCOW upheld the exclusion of the expert report not because PBT tests are inherently unreliable but because §343.303’s language is clear and the State’s interest in investigating and prosecuting OWI cases outweighed the defendant’s right to present a defense.  Justice Crooks wrote Fischer.  Justice Ziegler’s concurrence in Fischer (again joined by Justices Roggensack and Gableman) concluded that PBT results are inadmissible because they’re unreliable, so an expert opinion cannot reasonably be based upon them.

After SCOW’s decision in Fischer the Eastern District of Wisconsin granted federal habeas relief in the very same case because preventing Fischer from presenting an expert opinion (based upon PBT results) that he wasn’t driving with a prohibited alcohol content denied him his constitutional right to present a defense.  See On Point’s prior post here.

So, between Fischer and Rocha-Mayo it seems that all 7 justices agree that PBT results are inadmissible in OWI trials.  They disagree about why, which leaves wiggle room for both sides in future litigation.  As to the admissibility of PBTs administered by hospital staff (not law enforcement), On Point asked Rocha-Mayo’s lawyer, Rex Anderegg for his take:

The decision could scarcely be more confusing. I subscribe to Chief Justice Abrahamson’s view that six of seven justices ruled that they are not. Three would hold that PBTs are inadmissible and unreliable as a matter of law.  Three would hold that the PBT result in this case does not fit within any plausible exception to the statutory bar and did not follow protocols designed to ensure their integrity and reliability.  So it looks like only Justice Crooks “assumed without deciding” this primary issue.

Abrahamson’s dissent (joined by Bradley).

The Chief focused on the admission of the ER doctor’s expert opinion that the defendant was intoxicated in the ER room.  She would have excluded it under §907.04 (embraces the ultimate issue to be decided by the jury) and under  §907.02(1) (confusing to the jury).  There is a difference, she argued, between a doctor’s medical definition of intoxication and the legal term of art “under the influence of an intoxicant.”  Admitting the doctor’s testimony led the jury to believe that the two are the same and to further infer that the defendant was intoxicated at the time of the accident.

Prosser’s dissent (joined by Abrahamson and Bradley).

Justice Prosser was irked by the majority opinion–especially the idea of deciding this case on harmless error grounds.

This issue–the admissibility of the PBT result in a trial involving traffic-related offenses, including homicide by intoxicated use of a motor vehicle is surely the reason the court took this case. ¶96

[A]ssuming error rather than deciding error has the unfortunate effect of ducking a vital issue that should be decided and burying the reasons for an “inadmissibility” ruling. ¶100.

Prosser found the trial court’s errors harmful.  The jury deliberated 20 hours over 4 days.  Twice they told the court that they had deadlocked.  Many jurors cried as the verdicts were read.  ¶132.  “For the court to now say that two critical errors at trial were harmless in their effect on the jury is to deny reality and forget our purpose as a reviewing court.” ¶134.

As you can imagine, Attorney Anderegg finds the decision very disappointing.  He said: “Absent the 0.086 breath test, the remaining evidence may have been compelling that my client was drinking, but that was not the question for the jury.  The jury had to decide whether my client was “intoxicated” at the time of the accident.  Without the PBT result there wasn’t much evidence.  The driving behavior had a strong alternative explanation that did not involve intoxication.  No field sobriety tests were taken.  And the jury was erroneously instructed that it could use the chemical test evidence and concluded, based on that alone, that my client was intoxicated.”



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