The Wisconsin Supreme Court unanimously upheld a conviction Tuesday that prohibits the use of preliminary breath test results as evidence in drunken driving cases.
The ruling reaffirms a current Wisconsin statute that prohibits the use of PBT results as evidence other than to prove probable cause for arrest or successive chemical alcohol tests.
“The Supreme Court has taken a practical approach to the problem of drunk driving by upholding the Legislature’s efforts to enact laws designed to get drunk drivers off the road,” Wisconsin Attorney General J. B. Van Hollen said in a statement supporting the ruling.
The court upheld an operating while intoxicated conviction against Richard Fischer of Ozaukee County, his second OWI.
Fischer sought to present expert testimony during trial that his body was still absorbing the alcohol, and he was therefore under the legal .08 limit at the time of the incident, but the court denied the motion.
Fischer claimed the court’s refusal to admit expert testimony concerning his PBT results interfered with his constitutional right to prevent evidence at his own trial.
The Supreme Court ruled the circumstances of Fischer’s conviction did not merit overturning Wisconsin state law concerning PBT admissibility in court.
“This case relies on the curve argument,” said UW law professor Nina Emerson, director of the Resource Center on Impaired Driving at the UW Law School. “Because his chemical test an hour later was higher than his roadside test, the argument is that when he was driving, he could still have been under the legal limit.”
According to Emerson, inferring previous blood alcohol levels through PBT results is not the true function of the machines.
“PBTs were never designed to be used as evidentiary tools, they were designed to detect the presence of alcohol,” Emerson said.
If alcohol is detected, blood tests or other chemical tests are then performed at the hospital or the police station to confirm blood alcohol content that can then be used as evidence in court.
The Supreme Court stated the ruling does not eliminate the defendant’s right to an absorption defense that a suspect’s blood alcohol level may be higher following arrest given the extra time the body has to absorb it.
“Still, the defense is precluded from offering an absorption curve defense based upon PBT results,” Justice Annette Ziegler wrote in a concurring opinion with the Supreme Court’s unanimous decision.
Among those in favor of the ruling is the Wisconsin chapter of Mothers Against Drunk Driving.
Frank Harris, spokesperson for MADD, said the thing that won out as a result of the decision was public safety.
“In Wisconsin and throughout the United States, the side of the roadways are some of the most constitutionally protected places,” Harris said. “One would think that driving drunk is a pretty cut and dried case, but if a defendant hires a high-priced DUI defense attorney, it makes it difficult to prosecute those who betray the public trust by driving drunk.”
