On Point blog, page 1 of 2
COA reverses order suppressing evidence obtained after traffic stop
State v. Lauren Dannielle Peterson, 2023AP890-CR, 12/29/23, District 4 (one-judge case, ineligible for publication); case activity
Peterson’s circuit court win is short-lived after the court of appeals concludes that reasonable suspicion existed to initiate an OWI investigation and probable cause existed to ask Peterson to perform a preliminary breath test (PBT).
COA: officer had probable cause to conduct PBT
State v. Roger A. Wolf, Jr., 2022AP1539, 8/24/23, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)
An responding officer encountered Wolf, head bloodied, near a crashed motorcycle and a dead deer. Wolf said he’d been “drinking all day” but that an unidentified third person, not on scene, had been driving the bike when it hit the deer. He argues the officer lacked probable cause to perform a preliminary breath test.
COA affirms trial court’s refusal to permit testimony that OWI arrestee asked for breath test
State v. Travis D. Huss, 2021AP1858, 7/20/22, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)
Huss was stopped at 1 a.m. for going through a flashing red light without stopping. The officer suspected he was impaired and eventually arrested him for OWI. Huss asked the officer to give him a preliminary breath test before she arrested him, but the circuit court excluded evidence of his request from being admitted at trial. The court’s ruling was not an erroneous exercise of discretion.
COA upholds probable cause finding to request PBT
State v. Michael T. Paczkowski, 2021AP340, 9/29/21, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)
Paczkowski crashed his motorcycle, and responding deputies requested that he take a preliminary breath test. He agreed and blew a .149. The circuit court held that he deputies lacked the requisite probable cause to ask for the test, but the court of appeals disagrees and reverses.
COA upholds trial court’s rulings in OWI-first
County of Milwaukee v. Christann Spannraft, 2018AP1553 & 1554, 6/23/20, District 1 (one-judge decision; ineligible for publication); case activity (including respondent’s brief)
This is a pro se appeal of an OWI-1st conviction. Spannraft raises three claims, all of which are rejected.
Barring PBT evidence didn’t violate right to present defense
State v. Jude W. Giles, 2018AP1967-CR, District 3, 10/8/19 (one-judge decision; ineligible for publication); case activity (including briefs)
Jude’s sought to admit the results of his preliminary breath test results (.076) to lay a foundation for his expert’s opinion that alcohol was still being absorbed into his blood, making the state hygiene lab’s blood test result (.144) higher than his blood alcohol content at the time he was driving. (¶¶2-5). The circuit court properly disallowed the evidence because it runs smack dab into § 343.303 and State v. Fischer, 2010 WI 6, 322 Wis. 2d 265, 778 N.W.2d, both of which strictly prohibit the admission of PBT results.
Jury learning PBT was requested not grounds for mistrial
State v. Dale R. Delvoye, 2017AP833, 7/3/18, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)
At Delvoye’s OWI trial, an officer testified that as part of the stop he asked Delvoye to take a preliminary breath test. Counsel objected and moved for a mistrial. The trial court denied the mistrial, and the court of appeals affirms.
Officer’s reference to PBT didn’t require mistrial
City of New Berlin v. Bryon R. Hrin, 2016AP239, District 2, 2/15/17 (one-judge decision; ineligible for publication); case activity (including briefs)
The circuit court properly exercised its discretion in denying a mistrial after the arresting officer’s testified that, having completed the field sobriety tests, he “administered a preliminary breath test, PBT.” (¶4).
SCOW uses “harmless error” to dodge further anaylsis of statute barring use of PBT tests in OWI-related trials
State v. Luis M. Rocha-Mayo, 2014 WI 57, affirming an unpublished court of appeals decision; 7/11/14; majority opinion by Justice Crooks; case activity
Why tackle thorny legal issues surrounding Wis. Stat. §343.303’s prohibition against the use of PBTs at OWI trials when you can decide the case on harmless error grounds? In this case, the PBT was ordered and administered by ER staff, not law enforcement. SCOW gets to pick and choose its cases. So when it grants review, the parties, their lawyers, the lower courts, and the bar hope the court will decide the legal issues, not re-review the evidence presented to the jury. This fractured decision deserves a close look in order to understand what has and has not been decided about the use of PBTs in OWI trials.
State v. Luis M. Rocha-Mayo, 2011AP2548-CR, petition for review granted
Review of per curiam court of appeals decision; case activity
Issue (composed by On Point)
Whether Wis. Stat. § 343.303, which bars the admission of certain preliminary breath test results in motor vehicle prosecutions, applies to PBT results obtained by Emergency Room staff?
Issue (again, composed by On Point)
WIS JI- Criminal 1185, which is based upon § 885.135(2g)(c), permits a jury to find a defendant was intoxicated at the time of an accident if it is satisfied beyond a reasonable doubt that the defendant’s alcohol level was 0.08 or greater.