Fischer v. Ozaukee County Circuit Court, Case No. 10–C–553.

• Citation: 741 F.Supp.2d 944
• Decision Date: 29 September 2010
• Docket Number: Case No. 10–C–553.
• Parties: Richard M. FISCHER, Petitioner,v.OZAUKEE COUNTY CIRCUIT COURT, Respondent.
• Court: U.S. District Court — Eastern District of Wisconsin

741 F.Supp.2d 944

Richard M. FISCHER, Petitioner,

v.OZAUKEE COUNTY CIRCUIT COURT, Respondent.

Case No. 10–C–553.

United States District Court, E.D. Wisconsin.

Sept. 29, 2010.Order Denying Motion to Alter or Amend Jan. 7, 2011.

OPINION TEXT STARTS HEREWest CodenotesUnconstitutional as AppliedW.S.A. 343.303

Dean A. Strang, Hurley Burish & Stanton SC, Madison, WI, James M. Shellow, Shellow & Shellow SC, Robin Shellow, Urszula K. Tempska, The Shellow Group, Milwaukee, WI, for Petitioner.Marguerite M. Moeller, Wisconsin Department of Justice, Office of the Attorney General, Madison, WI, for Respondent.

DECISION AND ORDER GRANTING WRIT OF HABEAS CORPUS

AARON E. GOODSTEIN, United States Magistrate Judge.I. PROCEDURAL HISTORY

On July 6, 2010, Richard M. Fischer (“Fischer”), proceeding with the assistance of counsel, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, (Docket No. 1), as well as a brief in support of his petition, (Docket No. 2). On July 22, 2010, the Honorable Rudolph T. Randa screened Fischer's petition in accordance with Rule 4 of the Rules Governing Section 2254 Cases and ordered the respondent to answer the petition. (Docket No. 5.) The respondent answered the petition on August 31, 2010, (Docket Nos. 10, 11), and the petitioner has replied, (Docket No. 12). This matter was reassigned to this court upon all parties consenting to the full jurisdiction of a magistrate judge. (Docket Nos. 4, 7, 8.) The pleadings on Fischer's petition are closed and the matter is ready for resolution.

On March 21, 2007, Fischer was convicted in Ozaukee County Circuit Court following a jury trial of second offense operating a vehicle under the influence and operating a vehicle with a prohibited blood alcohol concentration. (Docket No. 1 at 2.) He was sentenced to serve 5 days in jail and pay a $350.00 fine, and his driver's license was suspended for one year. (Docket No. 1 at 2.) Execution of this sentence was stayed pending appeal. (Docket No. 1 at 1.) This stay remains in effect and according to the judgment of conviction, Fischer remains subject to the conditions of bail while this stay is in effect. (Ans. Ex. A.) Thus, Fischer is “in custody” within the meaning of the federal habeas corpus statute, 28 U.S.C. § 2254(a). Hensley v. Municipal Court, San Jose–Milpitas Judicial Dist., 411 U.S. 345, 346, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973).

Fischer appealed and on September 10, 2008, the court of appeals affirmed. (Docket No. 1 at 3; Docket No. 1 at 13–19.) Fischer petitioned the Wisconsin Supreme Court for review, which was granted, and on February 2, 2010, the Wisconsin Supreme Court affirmed Fischer's conviction. (Docket No. 1 at 3; Docket No. 1 at 20–35.) Fischer filed a petition for certiorari with the United States Supreme Court, which was denied on June 21, 2010. (Docket No. 1 at 4; Docket No. 1 at 36.)

In his present petition, Fischer presents one claim for relief. He contends that the trial court's exclusion of the defendant's expert, who would have testified that the defendant's blood alcohol concentration (“BAC”) at the time he was driving was lower than that required for conviction, violated Fischer's right to present a defense under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. (Docket No. 1 at 6–7.)

Fischer sought to introduce the testimony of an expert who utilized the results of the preliminary breath test (“PBT”) conducted on Fischer by a police officer at the roadside “as one of the mathematical constraints or bases of his opinion” that Fischer's BAC at the time he was driving was below the legal threshold of 0.08%. (Docket No. 2 at 2.) The trial court barred this testimony because Wis. Stat. § 343.303 precludes PBT results from being admitted in any action or proceeding except to show probable cause for an arrest. The matter proceeded to trial and the state called an expert who opined that Fischer's BAC at the time he was driving was in excess of 0.08%. (Docket No. 2 at 3.) Fischer did not call an expert to rebut this opinion.

Fischer contends that invoking Wis. Stat. § 343.303 to prevent him from presenting an expert witness to rebut the prosecution's expert offends his constitutional right to present a defense. The Wisconsin Supreme Court disagreed with Fischer's position, relying in part upon United States v. Scheffer, 523 U.S. 303, 308, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998), wherein the Court “held that state rules that result in exclusion of defense evidence are constitutionally valid ‘so long as they are not arbitrary or disproportionate to the purposes they are designed to serve.’ ” State v. Fischer, 2010 WI 6, ¶ 5, 322 Wis.2d 265, 778 N.W.2d 629 (quoting Scheffer, 523 U.S. at 308, 118 S.Ct. 1261) (internal quotation marks omitted). The Wisconsin Supreme Court held that

in an OWI prosecution, even if a defendant establishes a constitutional right to present an expert opinion that is based in part on PBT results, the right to do so is outweighed by the State's compelling interest to exclude that evidence. Permitting the use of that evidence as the basis for an expert opinion would render meaningless the legislature's act forbidding such evidence in OWI prosecutions, an act that promotes efficient investigations of suspected drunk driving incidents and furthers the State's compelling interest in public safety on its roads. 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.

Id.

The respondent admits that Fischer's petition is timely, that he has exhausted his state court remedies with respect to the ground for relief raised in the petition, and that the petition is not a second or successive petition. (Docket No. 10 at ¶¶ 3, 6.)

II. FACTS

The following relevant facts are contained in the Wisconsin Supreme Court's decision:

The following facts are undisputed: In January 2005, Fischer was pulled over when an officer observed lane deviation and suspected drunk driving. The stop occurred at approximately 1:40 a.m. Fischer performed poorly on field sobriety tests. After those tests, at a time unspecified in the police report, a PBT was administered, and it measured a breath alcohol content of .11 percent. Fischer was arrested; a chemical blood test taken at 2:48 a.m. showed a BAC of .147 percent. He was charged with operating while intoxicated, second offense, and operating with a BAC of .08 or more, second offense, contrary to Wis. Stat. § 346.63(1)(a) and (b). Fischer pled not guilty, and the case was set for trial.

He retained an expert who prepared a report using the data from the two tests, estimates as to the precise timing of the breath test after the stop, and absorption rate formulas to generate absorption curves, with the purpose of estimating the BAC prior to the time the PBT was taken, at the moment Fischer was stopped. In his report, the expert said his calculations were based on a method similar to the one known as speculative retrograde extrapolation, which uses known data to estimate a person's BAC at an earlier point in time. In the first report, dated February 13, 2006, the expert included the results of both tests and reached the following conclusion:

I conclude that Mr. Fischer was in the absorptive phase when he was stopped and that his BAC was increasing with a high degree of scientific certainty. In addition my analyses, based on the chosen assumptions, indicate that the data are most consistent with, but do not establish, the hypothesis that Fischer was below the 0.08% threshold when stopped.

In June 2006, the State filed a motion in limine to exclude the expert's report and testimony “to the extent the report and testimony rely on the PBT result,” on the grounds that “(1) the PBT result is inadmissible at trial pursuant to statute and (2) there is no showing that the PBT result is reliable for any purpose other than probable cause.” After the State filed its motion in limine, Fischer submitted a second report, dated July 7, 2006, which his expert prepared on the basis that the PBT result could not be included in the data used for the analysis. The expert concluded, “[T]he single determination of blood alcohol made at 2:48 [a.m.] over an hour after [Fischer's] arrest is insufficient to establish that his blood alcohol content was above the 0.08% threshold when he was stopped at 1:40 [a.m.].”

In a third submission by the expert, which was attached to Fischer's response to the State's motion in limine and submitted as Fischer's offer of proof after the court granted the motion, the expert, Dr. John Steele, contrasted the analysis possible using both the PBT and blood test results with the analysis possible without the use of the PBT result, and concluded:

If one rejects the breath test data and relies only on the blood test, then the plausible range of BAC when Mr. Fischer was stopped ranges from near 0.0% to 0.164%[,] a range which is both higher and lower than the critical 0.080% legal threshold....

If one includes the breath test result, ... then at the time he was stopped Mr. Fischer most likely had a BAC of approximately 0.040% to 0.067%.

The report that was the subject of the motion in limine included Fischer's PBT result in the text of the report. Though the report attached to Fischer's offer of proof stated that the PBT result “played no role in computing the curves,” the report acknowledged that the PBT result played a significant role in the overall analysis by “allow[ing] the range of BAC [at the time of the stop] to be narrowed down.”

Following a motion hearing on the matter, the circuit court granted the State's motion in limine. In so doing, the court observed that it was not...