Feb. 2, 2010 – Evidence of a preliminary breath test (PBT) in a drunk driving case remains inadmissible even if an expert relies on it to form an opinion, the Wisconsin Supreme Court held today.
In State v. Fischer, 207AP1898, the court worked to reconcile Wis. Stat. sec. 343.303, which expressly bars PBT results from prosecuting a motorist accused of operating while intoxicated, with Wis. Stat.sec. 907.03, which permits an expert to testify to an opinion regardless of the admissibility of the opinion’s underlying data. The court concluded that sec. 343.303 creates an exception to sec. 907.03 without impairing a defendant’s constitutional right to present a full defense.
The justices refrained from holding that the PBT results are inadmissible because they are too unreliable, noting that Wisconsin courts routinely use the tests to find probable cause for arresting a motorist.
An absorption curve theory
Richard Fischer’s erratic driving drew the attention of a police officer who stopped Fischer at 1:40 a.m. After Fischer poorly performed field sobriety tests, the officer administered a PBT at an unspecified time, measuring a breath alcohol content of .11 percent. Fischer was arrested and at 2:48 a.m. the officer performed a chemical blood test to find a BAC of .147 percent. Fischer was charged with operating while intoxicated, second offense, and operating with a BAC of .08 or more, second offense.
In preparation for trial, Fischer retained an expert who used data from the two tests, estimates of the precise timing of the breath test, and absorption rate formulas to generate a curve charting the absorption of alcohol by Fischer’s body. Fischer’s blood had yet to contain an impermissibly high level of alcohol when the officer stopped him, in the expert’s opinion.
The state successfully persuaded the trial court to exclude the expert’s report and testimony to the extent that it relied on the PBT result A jury convicted Fischer on both charges and Fischer appealed the ruling to exclude the expert’s evidence. The court of appeals affirmed.
Clear legislative intent
In an opinion authored by Justice N. Patrick Crooks, the court held that the Legislature clearly intended to bar PBT results in prosecutions of drunk drivers and its reasons for doing so outweighed Fischer’s right to present a full defense.
The court noted that the U.S. Supreme Court held that state rules excluding defense evidence are valid “so long as they are not ‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve’” in U.S. v. Scheffer, 523 U.S. 303 (1998). Applying Scheffer, the Wisconsin Supreme Court created a two-part test to evaluate excluded evidence in State v. St. George, 2002 WI 50.
In this case, the court said it would assume Fischer had satisfied the first prong of the St. George test, which considers whether the proffered expert testimony meets the standards of sec. 907.02 and it is relevant, necessary, and offers probative value greater than its prejudicial effect.
But the court determined that Fischer could not succeed under the second part of the St. George test, which asks whether the defendant’s right outweighs the state interest in excluding the evidence.
“The legislature’s decision limiting the admissibility of PBT results helps law enforcement officers do their jobs with more cooperation from drivers than they would otherwise be likely to get – cooperation that is especially critical given that a PBT may be requested when an officer has a basis to justify an investigative stop but has not established probable cause to justify an arrest,” the court wrote. In turn, this makes Wisconsin roads safer, the court said.
No detours around the rule
The court considered whether the expert could escape the prohibition of sec. 343.303 by testifying only to his opinion without reference to the PBT result, rather than present a report that includes the actual PBT result.
In this case, the court said there was no meaningful difference between those two options. “The PBT results, whether initially fully disclosed to the jury or not, would inevitably be disclosed to the jury the moment that the expert testified as to the methodology and data that underlie the opinion,” the court said. “[E]ven a limited explanation of the methodology Fischer wanted to have put before the jury would have to include the first data point: the PBT result.”
Likewise, the court said that the PBT result could not become admissible even if sec. 907.02 and sec. 907.03 permit an expert to testify to an opinion based on facts that are otherwise inadmissible if they are “of a type reasonably relied upon by experts.” Acknowledging this is a “thorny question” that “has proved difficult to answer with a fair and workable rule,” the court said it had to interpret apparently conflicting statutes in a way that gives full force to each.
“[I]n this case, the legislature’s policy decision regarding the absolute inadmissibility of the PBT results under these circumstances simply could not be clearer,” the court wrote. “Reading the statutes together to create an exception to Wis. Stat. 907.03 by excluding expert evidence to the extent that it is based on prohibited PBT results comports with our obligation to give effect to the legislature’s intent.”
The court noted that if it ruled otherwise, PBT results would routinely be used by prosecutors, reversing the legislature’s assurance to drivers that PBT results will be used only to determine if probable cause exists for an arrest. When fewer drivers agree to an investigatory PBT, “an officer could be faced with the constitutional necessity of releasing a driver he or she reasonably believed to be intoxicated,” the court said.
Expressly not held
In an aside, the court noted that it was not holding that all absorption curve opinion evidence is inadmissible. If Fischer had disclosed when and what alcoholic beverages he had been drinking, the court said an expert could have created an absorption curve based on that evidence and it would be admissible.
Further, the court said that it was not evaluating the reliability of an expert opinion based on PBT results, “which after all are routinely relief on to establish probable cause for arrest and have been held admissible for purposes other than those prohibited by statute.” But in a concurring opinion joined by Justices Patience Roggensack and Michael Gableman, Justice Annette Ziegler said that the PBT results are unreliable as a matter of law for the purpose of confirming or refuting a specific alcohol concentration in an OWI or PAC trial.
Standard for expert testimony
Fischer had urged the court to abandon current state law that lets a jury decide the weight and reliability of relevant scientific evidence in favor of the federal Daubert standard. In Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993), the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.
The court said that it did not have to evaluate the reliability of the expert’s opinion in this case and so there was no reason for “such an abrupt departure from established case law.”
