State v. Busch, 96-2822

Decision Date30 April 1998
Docket NumberNo. 96-2822,96-2822
Citation217 Wis.2d 429,576 N.W.2d 904
PartiesSTATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Gregory A. BUSCH, Defendant-Appellant.
CourtWisconsin Supreme Court

For the plaintiff-respondent-petitioner the cause was argued by Joseph DeCecco, Assistant District Attorney with whom on the briefs was Christopher W. Stock, Deputy District Attorney and James E. Doyle, Attorney General.

For the defendant-appellant there was a brief by Rebecca Lyman Persick, and Law Offices of Barry S. Cohen, S.C., Elkhart Lake and Christopher A. Mutschler, and Anderegg & Mutschler, LLP, Fond du Lac and oral argument by Dennis M. Melowski ¶1 N. PATRICK CROOKS, Justice.

The State of Wisconsin (State) seeks review of a published decision of the court of appeals. 1 The court of appeals reversed the circuit court's order denying Gregory A. Busch's (Busch) motion to suppress evidence of the results of his breath alcohol test in which an Intoxilyzer 5000 Series 6600 machine was utilized to administer the test. Busch argued that the Intoxilyzer Model 5000 Series 6600 had not been evaluated by the Department of Transportation (DOT) prior to its use in the state in accord with Wis. Stat. § 343.305(6)(b)(1993-94) 2 and Wis. Admin. Code § TRANS 311.04 (January, 1993). 3 Busch asserted that the Series 6600 is a modified version of the Intoxilyzer Model 5000 Series 6400, and although the Series 6400 had been appropriately evaluated and approved, the Series 6600 had not.

¶2 The circuit court for Sheboygan County, the Honorable L. Edward Stengel presiding, denied Busch's motion to suppress, finding that the changes made to the Series 6400 had not altered the analytical process of the machine. Hence, the circuit court concluded that the Series 6600 had been "appropriately tested and [is] in compliance with both state statutes and the administrative code." Accordingly, the breath alcohol test results were afforded a presumption of accuracy and admitted as evidence to establish Busch's breath alcohol concentration. The circuit court subsequently convicted Busch of operating a motor vehicle with a prohibited alcohol concentration contrary to Wis. Stat. § 346.63(1)(b), and Busch appealed.

¶3 The court of appeals reversed the judgment of the circuit court. The court of appeals determined that the numerous changes to the Series 6400 did not result in a similar hybrid-type Series 6600; rather, a new quantitative breath testing instrument had been created. Before test results from the Series 6600 could be afforded a presumption of accuracy, the court of appeals determined it must be tested, evaluated, and approved in accord with Wis. Admin. Code § TRANS 311.04. The court of appeals remanded the case to the circuit court to allow the State to present evidence that the breath alcohol test results obtained by use of the Intoxilyzer Model 5000 Series 6600 were accurate and reliable.

¶4 We conclude that under Wis. Admin. Code § TRANS 311.04(1), the chief of the chemical test section of the DOT is charged with approving all instruments used for the quantitative analysis of alcohol in the breath. We also conclude that under § TRANS 311.04(2) the chief of the chemical test section must evaluate all models of breath testing instruments, but is given the authority to determine the procedures for the evaluation of such instruments. In the present case, the circuit court received detailed testimony from the DOT that the Series 6600 had not been separately evaluated prior to approval because the modifications did not alter the analytical functioning of the Series 6600, and that the Series 6400 had been previously evaluated. Based upon this testimony, we conclude that the circuit court did not erroneously exercise its discretion in finding that the Series 6400 and the Series 6600 were essentially the "same machine" due to their identical analytical processing. We further conclude that the DOT's interpretation that the method of testing of the Series 6600 had been previously evaluated and approved is consistent with Wis. Stat. § 343.305(6)(b) and § TRANS 311.04, the latter of which authorizes the chief of the chemical test section to determine the procedures for evaluation. Accordingly, Busch's breath alcohol test results obtained by utilization of the Intoxilyzer Model 5000 Series 6600 are afforded a presumption of accuracy and reliability, since a machine identical in analytical functioning has already been tested, evaluated, and approved for use in this state.

A.

¶5 The facts are undisputed. On June 2, 1996, Busch was driving his motor vehicle and was stopped by a Trooper of the Wisconsin State Patrol. The stop resulted in Busch being cited with one count of operating a motor vehicle while under the influence of an intoxicant (first offense) contrary to Wis. Stat. § 346.63(1)(a) and one count of operation a motor vehicle with a prohibited alcohol concentration (first offense) contrary to Wis. Stat. § 346.63(1)(b). Busch was transported to the Sheboygan Falls Police Department, where he agreed to submit to a chemical test of his breath. The chemical test was conducted using the Intoxilyzer Model 5000 Series 6600, and the test results indicated that Busch's alcohol concentration was above the legally prohibited alcohol concentration set forth under Wis. Stat. § 340.01(46m).

¶6 On August 14, 1996, Busch filed a motion to suppress the chemical test results. He asserted that in accord with Wis. Stat. § 343.305(6)(b), the DOT had promulgated Wis. Admin. Code § TRANS 311.04 to outline procedures for the evaluation and approval of breath alcohol test instruments, and that such evaluation and approval must occur prior to use of a breath testing instrument. Busch specifically referenced § TRANS 311.04(2)(a) which states that "[a]ll models of breath testing instruments and ancillary equipment used shall be evaluated by the chief of the chemical test section." He argued that the Intoxilyzer Model 5000 Series 6600 had not been evaluated for use by the chief of the chemical test section. The Series 6600 was a modified version of the Intoxilyzer Model 5000 Series 6400. Busch asserted that although the Series 6400 had previously been evaluated and approved, the Series 6600 had not.

¶7 A motion hearing and court trial was held on August 28, 1996. At the hearing, the parties acknowledged that the substance of the 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 presented to the circuit court in Baldwin. 4

¶8 At the hearing on the motion to suppress in Baldwin, defense counsel called George Menart to testify. At the time, Menart had worked for approximately 13 years as a senior electronics technician for the Division of State Patrol, Chemical Testing, which is a part of the DOT. Menart testified that the State Patrol and the DOT set the standards for the breath testing program in Wisconsin, set forth the provisions in the administrative code that guide the program, set the standards for the testing of the breath test instruments and the training of persons operating the test instruments, provide all equipment for testing, and also provide the service and calibration of the testing instrumentation. Menart stated that he had military and technical electronics training, was affiliated with the International Association of Chemical Testing, and held a professional certification with the DOT. Menart also testified that he had received extensive training on the theory, repair, and calibration of breath testing equipment from the manufacturer of the Intoxilyzer Model 5000. Finally, Menart testified that he had tested and evaluated the Intoxilyzer Model 5000 Series 6400 as part of the original approval procedures in 1983 or 1984.

¶9 Menart testified that there were seven modifications made to the Series 6400, resulting in the Series 6600. First, additional circuitry was added to the processor board to set up an internal calibration system in the device. Menart stated that that this system is not used in Wisconsin. Second, the device used to heat the breath sample chamber was moved from an external mount underneath the sample chamber onto the mother board, 5 because the external mount had become obsolete. Third, the power supply had been replaced by a newer model because the model previously used had become obsolete. The power supply voltage remained identical. Fourth, diodes, capacitors, resistors, transistors, and chips on the mother board were obtained from a different manufacturer; however, all met the specifications required by the DOT. Fifth, the memory was upgraded from 16 kilobytes to 32 kilobytes. Sixth, a phone activated timer was added so that the State Patrol could download the information from individual machines state-wide to the main DOT files on a weekly basis. Seventh, a 10,000 ohm resistor was added to bleed the capacitor.

¶10 Menart stated that the numerous changes in the Series 6600 did not affect the analytical functioning of the instrument, and that the method of analysis in the Series 6600 was identical to the method of analysis in the Series 6400. Menart acknowledged that the Series 6600 had never been separately tested and evaluated. However, it was the position of the DOT that the Series 6600 was essentially the same machine as the Series 6400.

When we looked at equipment differences, especially from the perspective of how an instrument operates and how it does it's [sic] evaluation, what we look at is the optical bench, which entails the sample chamber, the lenses, the infrared source, the detector and, also, how that signals or multiple signals are then processed and in the case of the sixty-four and the 6600 series, the optical bench is identical. The...

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