Appeals court clarifies alternative “testing” rights and obligations in OWI case

By Joe Forward, Legal Writer, State Bar of Wisconsin

Oct. 12, 2010 – After taking a primary “blood, breath, or urine” test, a person suspected of operating under the influence of drugs or alcohol has two options in choosing a second, alternative test. But the law does not require police to offer a third.

In State v. Batt, 2009AP3069-CR (Oct. 6, 2010), Lee Batt argued that Wisconsin law requires law enforcement to offer both an alternative test at police expense and a reasonable opportunity for the OWI suspect to obtain a third test at the suspect’s own expense.

But the District II Wisconsin appeals court held that police must provide a second test of its choice at police expense and “if the second test is refused by the suspect in favor of one at his or her own expense, police must provide reasonable opportunity for a test of the suspect’s choice at the suspect’s expense.” The law does not require both.

The statute 

In 2008, police stopped Batt to investigate an anonymous tip that his vehicle was one of two speeding near a park in Sheboygan. Subsequently, Batt was arrested on a sixth OWI offense, a felony charge.

Batt agreed to take a primary blood test, and then asked for an alternative breath test. Batt also requested a third test by a qualified person at his own expense, but never received one. 

Under Wis. Stat. section 343.305(4), a suspect that submits to a primary breath, blood, or urine test to determine the system’s alcohol or drug levels is allowed take an “alternative test.”

Under section 343.305(5)(a), “[t]he person who submits to the [primary] test is permitted, upon his or her request, the alternative test provided by the agency … or, at his or her own expense, reasonable opportunity to have any qualified person of his or her own choosing administer a chemical test. …”

Batt’s trial lawyer moved to suppress the results of the blood and breath tests on the basis that Batt did not get a reasonable opportunity for a third alternative test at his own expense. The motion was denied, and Batt pled no contest. He appealed.

Appeals court 

Batt relied on State v. Stary, 187 Wis. 2d 266, 522 N.W.2d 32 (Ct. App. 1994) to argue that police must provide, at the suspect’s request, both an alternative test at police expense and an alternative test at the suspect’s own expense.

In Stary, however, the suspect refused an alternative test at police expense and obtained one at his own expense. Thus, as the appeals court explained, “the Stary court was not considering whether a defendant was entitled to a reasonable opportunity to a third test after receiving a second test at agency expense.”

The court noted a supreme court case explaining that section 343.305(5)(a) is intended to give indigent drivers an opportunity for an alternative test regarding intoxication levels.

“[I]f we were to adopt Batt’s interpretation of section 343.305(5)(a), people who could afford to would have the advantage of taking three tests, while the indigent and those less well-off would be hard pressed to do the same. This cannot be what the legislature intended,” the appeals court wrote.

Thus, the court concluded that once Batt accepted a second test at police expense, “law enforcement was not obligated to give him a reasonable opportunity to obtain a test at his own expense.”

Reasonable suspicion 

Batt also moved to suppress the breath and blood tests on the grounds that police officers did not have reasonable suspicion of unlawful activity to pull him over.

But the court rejected this claim because the anonymous tipster provided a sufficient description of the vehicle, and people close to the scene gestured towards the vehicle as police passed by.

“Because the criminal activity [the officer] was originally investigating (speeding) would have been visible to the public, [the officer] had no reason to doubt the basis of the anonymous tipster’s knowledge,” the court explained.