State v. Baldwin, s. 96-1013-C
| Decision Date | 02 July 1997 |
| Docket Number | Nos. 96-1013-C,96-2822,s. 96-1013-C |
| Citation | 212 Wis.2d 245,569 N.W.2d 37 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Randall S. BALDWIN, Defendant-Appellant.d STATE of Wisconsin, Plaintiff-Respondent, v. Gregory A. BUSCH, Defendant-Appellant.dd |
| Court | Wisconsin Court of Appeals |
On behalf of the defendant-appellant, the cause was submitted on the briefs of Christopher A. Mutschler and Michele A. Tjader of the Law Offices of Barry S. Cohen, S.C. of Elkhart Lake.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of Robert J. Wells, District Atty., and Joseph DeCecco, Asst. Dist. Atty.
Before BROWN, NETTESHEIM and ANDERSON, JJ.
Randall S. Baldwin and Gregory A. Busch claim that the trial court erred in failing to suppress the breath test results from an untested, unevaluated and unapproved Intoxilyzer Model 5000, Series 6400. We reverse Busch's conviction for operating a motor vehicle while having a prohibited alcohol concentration (OMVPAC) because the automatic admissibility and the prima facie presumption of accuracy of breath test results are directly tied to the evaluation and approval of the breath testing instrument by the chief of the Department of Transportation's chemical testing section. Here, the failure to comply with the mandates of the state statutes and the administrative code calls into question the accuracy of the instrument used to test Busch's breath. However, Busch is not entitled to the suppression of the breath test results upon remand of his appeal; rather, a new trial is required where the State will not have the benefit of automatic admissibility or the prima facie presumption of accuracy.
We affirm Baldwin's conviction for operating a motor vehicle while intoxicated (OMVWI). Although the breath test results are relevant to the conviction, he fails to argue that there is no evidence that supports his conviction for OMVWI.
Baldwin was arrested for a second offense OMVWI in violation of §§ 346.63(1)(a) and 346.65(2)(B), STATS1., and a second offense OMVPAC in violation of §§ 346.63(1)(b) and 346.65(2)(b). Busch was arrested for his first offense OMVWI, § 346.63(1)(a) and his first offense OMVPAC, § 346.63(1)(b). They brought separate motions to suppress their respective breath test results on the grounds that the instrument used to test their breath had not been evaluated and approved as required by § 343.305(6)(b), S TATS., and WIS. ADM.CODE § TRANS 311.04.
In Baldwin's case, an evidentiary hearing was conducted and after argument of the parties, the trial court concluded that the modifications to the instrument did not change the analytical process and that evaluation and approval of the instrument prior to use were not required under the administrative rule. A jury subsequently convicted Baldwin of both counts and the trial court entered a judgment of conviction on the second offense OMVWI. He commenced this appeal limited to the issue of whether the breath test instrument had been properly evaluated and approved and seeking suppression of the breath test results.
In Busch's case, the prosecution and defense stipulated to incorporate by reference the testimony and argument presented in Baldwin's case, and the trial court denied the motion for the reasons it gave in the Baldwin case. After brief testimony on the underlying offense, the court found Busch guilty of both counts and entered a judgment of conviction on the first offense OMVPAC. In this appeal he seeks the same relief as requested by Baldwin. 2
The only witness at Baldwin's evidentiary hearing was George Menart. Menart testified that for thirteen years he has been a senior electronics technician for the Wisconsin State Patrol chemical testing section and that he is responsible for running the statewide service program for breath testing instruments. According to Menart, in 1983 and 1984 he was involved in the testing and evaluation of breath testing instruments to replace the then existing Breathalyzer; as a result of this program, the State purchased the Intoxilyzer Model 5000, Series 6400. 3
In the last twelve years, major modifications have been made to the internal components of the Intoxilyzer Model 5000, Series 6400 used to analyze Baldwin's and Busch's breath samples. The modifications were required either because of obsolescence or existing components wearing out. 4 The modifications have been made by replacing components of the Series 6400 with components designed for the Intoxilyzer Model 5000, Series 6600. 5
The changes made to the Intoxilyzer Model 5000, Series 6400 used to administer the breath test to Baldwin and Busch included: (1) replacement of the processor boards with Series 6600 processor boards that incorporated additional circuitry for an internal calibration standard not used in Wisconsin; 6 (2) replacement of the mother board with the Series 6600 mother board that includes circuitry to keep the sample chamber at a specific temperature--in the Series 6400 the heater for the sample chamber was mounted externally under the chamber; 7 (3) replacement of power supply; (4) upgrade of the memory from 16 kilobytes to 32 kilobytes; (5) installation of a phone-activated timer that permits the Department of Transportation to access the memory of the Intoxilyzer Model 5000, Series 6400; (6) installation of a 10,000 ohm resistor to bleed a capacitor so that service personnel would not receive an electrical shock; and (7) the diodes, capacitors, resistors, transistors and chips on the replacement Series 6600 mother boards are not from the same manufacturer as those on the Series 6400 mother boards; but they do meet the original specifications established by the manufacturer for the Series 6400.
During cross-examination, Menart described the optical bench--which includes the sample chamber, the lenses, the infrared source, and the detector--and explained how the machine processes multiple signals are identical between the two series. 8 According to Menart, the integrated circuits are identical, as are the values of the capacitors and resistors. Also, according to Menart, the Series 6600 is considered to be the same machine as the Series 6400; however, he testified that the Intoxilyzer Model 5000, Series 6600 has never been evaluated.
In the trial court, Baldwin and Busch argued that the breath test instrument used to analyze their breath samples--either the hybrid instrument or the Series 6600--had never been evaluated and approved as required by the administrative code. Both sought suppression of the breath test results because they were from "untested, nonevaluated machine[s]." The State responded that although the Series 6400 has been upgraded with components from the Series 6600, there was no need to test the latter because there was no difference in the analysis performed either by the hybrid testing instrument or the Series 6600.
The trial court denied Baldwin's and Busch's motions concluding that the underlying analytical process had not been upgraded and that there was no need to evaluate and approve the Series 6600 or the hybrid instrument because the analytical process was identical to the process employed by the Series 6400. The trial court concluded that expert testimony was required to establish significant differences between the machines that effected the analytical process. The court held that the agency met its responsibilities under the administrative code when it determined that additional testing was not required. The court accepted that the breath test instrument, used to analyze Baldwin's and Busch's breath samples, was "appropriately tested and in compliance with both state statutes and the administrative code."
We need not address Baldwin's assertions. The jury found him guilty of both OMVWI and OMVPAC; however, the trial court entered the judgment of conviction only on the OMVWI verdict. Even if the result of his breath test is suppressed, the judgment convicting him of OMVWI remains. Though the result of Baldwin's breath test is relevant evidence to determine whether he is guilty of OMVWI, he has not argued that in the absence of the breath test result, the remaining evidence is insufficient to support a conviction for OMVWI. See State v. Burkman, 96 Wis.2d 630, 642-43, 292 N.W.2d 641, 647 (1980). We generally do not decide issues not raised on appeal. See Waushara County v. Graf, 166 Wis.2d 442, 451, 480 N.W.2d 16, 19 (1992).
Busch renews his argument on appeal. He contends that WIS. ADM.CODE § TRANS 311.04 is mandatory and requires the testing of all breath testing instruments used in Wisconsin. According to his argument, the perspective that the Series 6600 is the same machine as the Series 6400 is not the equivalent of the evaluation mandated by the administrative code. The State responds that although Series 6600 components have been used to replace Series 6400 components because of updated technology and obsolescence, the operational concepts have not been compromised. The State insists that the updating of the Series 6400 does not warrant evaluation of the hybrid instrument or the Series 6600.
The parties do not dispute that seven major modifications have been made to the Series 6400; they do not dispute that components from the Series 6600 have been used to replace Series 6400 components; and, they do not dispute that the Series 6600 has never been evaluated or approved for use in the State of Wisconsin. The only dispute Busch and the State have is whether the implied consent statutory scheme requires the evaluation and approval of the Intoxilyzer Model 5000, Series 6600. Therefore, this appeal requires us to apply § 343.305(6)(b), S TATS., and WIS. ADM.CODE § TRANS 311.04 to undisputed facts. The application of statutes and administrative rules to undisputed facts involves a question of law and we need not defer to the...
To continue reading
Request your trial
-
State v. Doerr, 98-1047.
...prove compliance with accepted scientific methods as a foundation for the admission of the test results. State v. Baldwin, 212 Wis. 2d 245, 260, 569 N.W.2d 37, 43 (Ct. App. 1997), rev'd on other grounds sub nom. State v. Busch, 217 Wis. 2d 429, 576 N.W.2d 904 (1998). The PBT is not included......
-
State v. Busch, 96-2822
...motion to suppress had previously been heard and ruled upon by the circuit court in a factually similar case. See State v. Baldwin, 212 Wis.2d 245, 569 N.W.2d 37 (Ct.App.1997). The parties in the present case stipulated to the adoption of the testimony and arguments that the parties present......
-
State v. Lott, s. 98-1338-C
...failed to notice that the intoxilizer used to take Lott's breath sample was the same type as was at issue in State v. Baldwin, 212 Wis.2d 245, 569 N.W.2d 37 (Ct.App.1997), rev'd, 217 Wis.2d 429, 576 N.W.2d 904 (1998), failed to ask Lott if there were any witnesses who saw him drinking and/o......
-
City of Madison v. Bock, 97-2931
...before this court's decision regarding the admissibility of test results obtained using unapproved instruments in State v. Baldwin, 212 Wis.2d 245, 569 N.W.2d 37 (Ct.App.1997). DISCUSSION Standard of Review. The application of § 346.305(6)(b), STATS., and WIS. ADM.CODE § TRANS 311.04, which......