DWI Appeal of the Day (DAD) -Precluding Defendant's Use of PBT Denies Due Process

In Fischer v. Hollen, Attorney General of Wisconsin, --- F.Supp.2d ----, 2011 WL 66029 (E.D.Wis. 2011), the defendant field a habeas corpus petition, alleging that he was denied due process when the State of Wisconsin barred him from presenting the defense that his BAC was below 0.08 at the time of driving, and that the PBT result was proof of the same. The defendant had been charged with and convicted of OWI. He planned on using the PBT result, and then expert testimony, to prove he was under the limit of 0.08 at the time of driving. The trial court barred the PBT, and also his expert's resulting opinion. The Wisconsin Supreme Court upheld the preclusion, finding that a PBT is never admissible in an OWI trial. In this appeal, the federal court found that the Wisconsin Supreme Court's ruling denied the defendant the right to present a defense to his charges, in violation of his constitutional rights. The State of Wisconsin then filed this motion "to alter or amend judgment." The motion was denied. Some of the court's findings and statements are highlighted below:

The respondent contends that the court also erred when it discussed a probability that Fischer would have been acquitted had the expert's testimony been admitted and believed by the jury. As stated above, Fischer was convicted of both operating with a prohibited alcohol concentration, see Wis. Stat. § 346.63(1)(b), and operating while under the influence, see Wis. Stat. § 346.63(1)(a). Although found guilty of two crimes, for sentencing, there is only one resulting conviction, and the same sentence would have been imposed whether Fischer was found guilty of either or both offenses. See Wis. Stat. § 346.63(1)(c). The respondent contends that the excluded expert testimony was relevant only to the operating with a prohibited alcohol concentration offense and thus, even if the expert testimony had been admitted and believed by the jury, Fischer would still have been convicted of operating while under the influence and received the exact same sentence.

One need look only to the instructions given to the jury to understand the significance of the BAC evidence in the operating while under the influence charge. The jury was instructed as follows with respect to the operating while under the influence charge:

If you are satisfied beyond a reasonable doubt that there was .08 grams or more of alcohol in 100 milliliters of the defendant's blood at the time the test was taken, you may find from that fact alone that the defendant was under the influence of an intoxicant at the time of the alleged operating ... but you are not required to do so.

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Evidence has been received that within three hours of the defendant's alleged operating of a motor vehicle a sample of the defendant's blood was taken. An analysis of the sample has also been received. This is relevant evidence that the defendant had a prohibited alcohol concentration and was under the influence at the time of the alleged operating.

Under certain circumstances, it is theoretically possible that a jury could find a person guilty of operating while under the influence even though it found that the defendant's BAC was below the legal limit. However, as to the converse, if the jury finds that the defendant's BAC is over the legal limit, based upon the instructions quoted above, a guilty verdict on the operating while under the influence charge is almost sure to follow. Thus, the fact that Fischer was convicted of operating while under the influence may simply reflect the jury's conclusion that Fischer's BAC exceeded the legal limit.

Hypotheticals aside, as a practical matter, BAC evidence is the coup de grâce of a drunk driving case. A jury that concludes that an individual's BAC is below the legal limit is exceptionally unlikely to convict the defendant of any drunk driving crime. Thus, under the circumstances of a case such as this, a conclusion that a defendant's BAC was below the legal limit will almost surely result in an acquittal of not only the operating with a prohibited alcohol concentration charge, but also of the operating while under the influence charge. This is the likely result, even though under certain circumstances, a conviction might be obtained for the under the influence charge, despite the defendant operating with a legal BAC. Therefore, re-considering the respondent's present argument, the court remains convinced that the interest of the defendant in the admission of the PBT evidence so strongly and clearly outweighs the interest of the state in barring the admission of the evidence that the Wisconsin Supreme Court's decision affirming Fischer's conviction was unreasonable.


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