State v. Doerr

• Decision Date: 28 July 1999
• Docket Number: No. 98-1047.,98-1047.
• Citation: 229 Wis.2d 616,599 N.W.2d 897
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Kurt J. DOERR, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

229 Wis.2d 616

599 N.W.2d 897

STATE of Wisconsin, Plaintiff-Respondent, v. Kurt J. DOERR, Defendant-Appellant.

No. 98-1047.

Court of Appeals of Wisconsin.

Submitted on briefs June 15, 1999.

Decided July 28, 1999.

On behalf of the defendant-appellant, the cause was submitted on the briefs of John Miller Carroll of John Miller Carroll, S.C. of Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Jennifer E. Nashold, assistant attorney general.

Before Snyder, P.J., Nettesheim and Anderson, JJ.

ANDERSON, J.

Kurt J. Doerr appeals from judgments of conviction for two counts of battery to a police officer contrary to § 940.20(2), STATS., and one count of resisting an officer contrary to § 946.41, STATS. He argues that the trial court erred by admitting evidence of his preliminary breath test (PBT) without any corresponding expert testimony, and the court similarly erred by allowing evidence of his refusal to take a chemical test for intoxication to be admitted. Doerr also argues that the admissibility of the PBT is barred by § 343.303, STATS. Although we determine that the trial court erred by admitting evidence of the PBT, we affirm because the error was harmless.

BACKGROUND

Upon observing "erratic driving behavior," Deputy Eric Dallmann pulled over Doerr's automobile for an investigatory stop. Dallmann noticed that Doerr's speech was thick and slurred, his eyes were bloodshot and glassy, and he smelled of alcohol. Dallmann asked for Doerr's driver's license and informed Doerr that he was returning to his squad car to check Doerr's history and that Doerr should remain in his car until he returned. While Dallmann was radioing in Doerr's information, Doerr exited his car. The officer yelled at Doerr to return to his car, but Doerr continued to approach the squad car. Again, Dallmann yelled at Doerr to get back in his car. When Doerr ignored his commands, Dallmann, following his officer training, slammed his car door, put his car in reverse and floored it.

After creating a safe distance between Doerr and himself, Dallmann observed Doerr return to his car. Dallmann radioed the police station requesting backup. Four officers responded and arrived on the scene.

Dallmann removed Doerr from his vehicle and had him perform field sobriety tests. The officers administered a PBT to measure Doerr's blood alcohol level. The test showed a blood alcohol level of 0.21%. Doerr was arrested for operating a motor vehicle while intoxicated. He was handcuffed and informed that his person would be searched. Dallmann searched Doerr's upper body first and then went to his left foot area. Doerr was wearing cowboy boots, so Dallmann needed to lift Doerr's pant leg to reach his fingers inside the boot. Doerr behaved argumentatively throughout the search. When Dallmann reached the right foot area, he again lifted Doerr's pant leg. As Dallmann was lifting up the pant leg, Doerr drew his leg away and kicked Dallmann in the shin. While Dallmann secured Doerr's right leg, Deputy Charles Richmond placed Doerr over the front end of the squad car. Another officer completed the body search and asked Doerr to stand up. Doerr then kicked his leg backwards, hitting the officer in the shin. As the officers placed Doerr in the squad car, he resisted and tried to break away.

In addition to driving while under the influence, Doerr was charged with two counts of battery to a law enforcement officer and one count of resisting an officer. See §§ 940.20(2), 946.41, STATS. He was also charged with refusing to take a chemical test, which is the subject of a separate civil proceeding. He pled not guilty to all counts, and a jury trial was held.

Doerr brought two motions in limine. First, he sought to exclude the results of the PBT from being used at trial. Second, he argued for the exclusion of any reference to his refusal to take a chemical test. Both motions were denied. The jury found Doerr guilty on all three counts. Doerr appeals.

DISCUSSION

Doerr argues that the trial court committed reversible error in denying his motions in limine. The first ruling allowed Dallmann to testify about Doerr's PBT results, despite Doerr's contention that evidentiary use of PBT results requires expert testimony to lay the proper foundation and explain the mechanism to the jury. The second ruling allowed the State to make references during the trial to Doerr's refusal to take a chemical test.

[1, 2]

In reviewing a trial court's evidentiary rulings, we do not consider whether we initially would have admitted the evidence; rather, we determine whether the court exercised its discretion according to accepted legal standards and the facts of record. See State v. Alsteen, 108 Wis. 2d 723, 727, 324 N.W.2d 426, 428 (1982)

. Because the admission or exclusion of evidence is a discretionary trial court decision, its ruling will not be overturned on appeal absent an erroneous exercise of that discretion. See State v. Lindh, 161 Wis. 2d 324, 348-49, 468 N.W.2d 168, 176 (1991),

rev'd on other grounds, 521 U.S. 320 (1997).

A. PBT Results Evidence

In his first motion in limine, Doerr sought to exclude evidence of the PBT. Doerr presented three arguments against the evidence's admission. First, he argued that § 343.303, STATS., states that the test is unreliable in "any action or proceeding" except for challenges to probable cause to arrest or the necessity of the chemical test. Second, Doerr contended that the State would not be able to lay the proper foundation for this evidence without using an expert witness, which the State was not prepared to present. Third, he disputed the relevancy of the PBT results because he was not disputing the fact that he was intoxicated at that proceeding, the jury would hear evidence of intoxication from other State witnesses, and the information did not address any of the elements of the charges of the trial—battery to and resisting a police officer.

In denying his motion, the trial court relied on State v. Beaver, 181 Wis. 2d 959, 970, 512 N.W.2d 254, 258 (Ct. App. 1994), to conclude that the § 343.303, STATS., bar on the evidentiary use of PBT results is limited to motor vehicle violations. Thus, Doerr's PBT results could be used as evidence because his charges were for battery to and resisting a police officer, not motor vehicle violations. We agree.¹ Responding to Doerr's trial court argument that it would not be able to lay the proper foundation for the PBT results, the State contended that it planned to have Dallmann make an offer of proof and explain to the jury the device used to take the test. The trial court agreed. Doerr also objected to the relevancy of this evidence. He argued that the PBT results should not be allowed as evidence because he was not objecting to whether there was probable cause to arrest for the driving while under the influence charge. The court disagreed:

[Y]ou are suggesting that there isn't an issue as to his intoxication, and therefore, I don't understand to some extent the argument that's being made because you are agreeing that he was intoxicated here, which is really what the PBT suggests. It's not conclusive obviously, but I am satisfied this officer is in a position to testify based on his qualifications. The jury can hear his qualifications, and the jury as the trier of fact can decide whether or not it should be given weight as relates to the charges for which we are here for, which is battery to a peace officer and resisting an officer. So I will allow the testimony to be presented.

[3]

This court has long held that expert testimony should be adduced when interpreting the evidence involves special knowledge, skill or experience that is not within an ordinary person's realm of experience or knowledge. See State v. Johnson, 54 Wis. 2d 561, 564, 196 N.W.2d 717, 719 (1972)

. In such complex and technical situations, the trier of fact without the assistance of expert testimony would be speculating, and the lack of expert testimony in such cases constitutes an insufficiency of proof. See id. at 565, 196 N.W.2d at 719.

We determine that the PBT is a scientific device and that an ordinary person requires expert testimony to interpret evidence from this device. For example, the legislature has concluded that some breath test instruments after being evaluated and approved by the Department of Transportation (DOT) are entitled to a prima facie presumption of accuracy and can be admitted as evidence without foundation evidence assuring the instruments' accuracy and reliability. See State v. Busch, 217 Wis. 2d 429, 446, 576 N.W.2d 904, 911 (1998)

.

A properly evaluated and approved instrument relieves prosecutors from presenting evidence of the instrument's scientific accuracy and reliability in each prosecution; they do not have to waste precious resources to affirmatively 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 in the DOT's list of approved instruments. Evidentiary use of PBT results is addressed in § 343.303, STATS. There, it is stated that rather than enjoying a presumption of validity and accuracy, the PBT has a limited evidentiary use in motor vehicle proceedings. See § 343.303; Beaver, 181 Wis. 2d at 970,

512 N.W.2d at 258.

[4]

The PBT device has not been approved by the DOT and does not receive a prima facie presumption of accuracy to establish a defendant's blood alcohol level. Therefore, prosecutors who wish to rely on the PBT results are required to present evidence of the device's scientific accuracy and reliability and prove compliance with accepted scientific methods as a foundation for the admission of the test results.

In this case, the State presented Dallmann...