July 29, 2014 – After the car that Luis Rocha-Mayo was driving collided with a motorcyclist, resulting in the motorcyclist’s death, an ER nurse administered a preliminary breath test on Rocha-Mayo. Recently, the state supreme court said it was harmless error to admit the results.

Rocha-Mayo attempted to have the results of the breath test excluded under Wis. Stat. section 343.303, which says “law enforcement” can perform a preliminary breath test (PBT) to decide if a suspected drunk driver should be arrested.

But the results of the PBT cannot be used in subsequent proceedings other than to show there was “probable cause for an arrest … or to prove that a chemical test was properly required or requested of a person.” He said the results were used to prove he was driving drunk.

But in State v. Rocha-Mayo, 2014 WI 57 (July 11, 2014), the Wisconsin Supreme Court said it was harmless error to allow it, declining to address whether a PBT test not administered by law enforcement is inadmissible. The lower courts had ruled that the result of a diagnostic PBT test performed by a nurse was admissible, because the nurse was not law enforcement.

“Since we conclude that this case can and should be resolved by application of a harmless error analysis, we assume, without deciding, that the circuit court erred when it allowed the State to admit, as evidence, the PBT result obtained by a medical professional for diagnostic purposes,” wrote Justice Patrick Crooks in a 4-3 decision with concurring and dissenting opinions.

Deadly Road Rage

Rocha-Mayo, an undocumented immigrant from Mexico who was 19 at the time of the accident, was convicted on multiple homicide charges related to his actions, including homicide by intoxicated use of a vehicle. According to court documents, Rocha-Mayo got into a road-rage situation with three motorcyclists after leaving a bar in Kenosha in June of 2008.

One motorcycle turned off, but Rocha-Mayo and the other two continued driving at close proximity, travelling around 70 miles per hour on 52nd Avenue in Kenosha. Rocha-May said the motorcyclists initiated the encounter by yelling obscenities at him. At some point, he said one of the motorcyclists launched a metal baton at Rocha-Mayo’s rear window and shattered it.

At an intersection, Rocha-Mayo’s vehicle collided with one of the motorcyclists, who was not wearing a helmet and later died from the injuries. The other motorcyclist fled the scene and returned, but did not tell police about his involvement in the accident until 19 hours later.

As the dissent points out, whether the other motorcyclist had been drinking could not be established, and he was never charged with anything, including throwing the baton.

Emergency responders took Rocha-Mayo to a nearby hospital. The doctor examined him for head injuries, and later testified that he smelled of alcohol. Rocha-Mayo told the doctor he had been drinking. The doctor ordered a breath test to consider alcohol-related symptoms.

Rocha-Mayo blew a 0.086, which was just over the legal limit of 0.08. The emergency room nurse performed the breath test for diagnostic purposes. There was also evidence in the form of a statement that Rocha-Mayo made to a police officer on the scene.

Rocha-Mayo admitted drinking three beers before he left for the bar, drank six beers at the bar, and bought two six-packs at the bar before leaving, continuing to drink as he drove. Another officer said there was an empty beer bottle and five full ones scattered in Rocha-Mayo’s car. In addition, the doctor who testified said Rocha-Mayo was intoxicated, in his medical opinion.

Harmless Error

With all this other evidence against him, the majority ruled that it wasn’t necessary to decide whether diagnostic PBT’s conducted by medical professionals are inadmissible under section 343.303. That is, the majority said he would have been convicted regardless.

Rocha-Mayo, who required a Spanish-speaking interpreter throughout the trial, argued that the trial court judge committed error because he instructed the jury that it could rely on the PBT test in making its determinations. Even if that was error, the majority said it didn’t matter.

“It is clear beyond a reasonable doubt that the jury would have found the defendant guilty absent the alleged errors,” Justice Crooks wrote. “This is because the jury heard ample evidence to conclude that Rocha-Mayo was intoxicated at the time of the accident.”

The court also ruled that it wasn’t error to let the doctor testify that Rocha-Mayo was drunk, in his medical opinion. “Dr. Falco’s testimony related only to his observations of Rocha-Mayo in the ER, and he did not testify about Rocha-Mayo’s driving ability on the night of the accident,” wrote Justice Crooks, noting that certain forms of opinion testimony are admissible.

“Dr. Falco’s testimony was permissible because it did not embrace the ultimate issue: whether Rocha-Mayo was intoxicated at the time of the accident,” Justice Crooks explained.

Concurrence and Dissents

Justice Annette Ziegler wrote a concurring opinion, joined by Justices Patience Roggensack and Michael Gableman. Those three joined the majority opinion to create a 4-3 vote, agreeing that it was harmless error to admit the PBT test that was conducted by the nurse.

But the trio wrote separately to conclude that section 343.303 expressly bars the admission of preliminary breath test results in trials on operating a motor vehicle while intoxicated.

“I conclude 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,” wrote Justice Ziegler.

Justice David Prosser wrote a dissenting opinion, joined by Chief Justice Shirley Abrahamson and Justice Ann Walsh Bradley. Justice Prosser noted the jury deliberated 20 hours.

“When a jury has deliberated for 20 hours before convicting a defendant, facile assurances that critical errors in the trial were harmless to that defendant can be unpersuasive and unsettling,” Justice Prosser wrote. “I believe this defendant should be given a new trial.”

Justice Prosser laid out several facts not included within the majority’s opinion. “The facts above, presented in large part from the defendant’s perspective, are damaging to the defendant,” he wrote. “But they also suggest the possibility that Bestwick’s tragic death would not have happened but for actions initiated by Walters and the other motorcyclists.”

Justice Prosser said the majority also ducks a vital issue: determining whether the PBT test was admissible. He argues that PBT tests conducted by medical staff should not be admissible.

“Permitting the results of PBTs taken in hospital settings to be used later against hospital patients in court will engender distrust between doctors and patients and create disincentives for patients to comply with the requests of their doctors,” Justice Prosser wrote.

The dissent argued that it was not harmless error to give the jury instruction. “It would be hard for this writer to contend that that defendant would not have been convicted and should not have been convicted of something for his role in Bestwick’s death,” Justice Prosser wrote.

“”The issue, however, is whether the jury would have arrived at the same verdict on all the offenses charged had the errors not occurred.”

Chief Justice Shirley Abrahamson wrote a separate dissent to point out that she and five other justices – Justices Bradley, Prosser, Roggensack, Ziegler, and Gableman – “agree that the circuit court erred in admitting the PBT results in the present case.”

The chief justice also said the doctor’s testimony that he believed Rocha-Mayo was intoxicated was admitted in error. “Such testimony is barred by our jurisprudence regarding the limits of expert opinion testimony,” Chief Justice Abrahamson wrote.