State v. Fischer

• Citation: 2010 WI 6,778 N.W.2d 629
• Decision Date: 02 February 2010
• Docket Number: No. 2007AP1898-CR.,2007AP1898-CR.
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Richard M. FISCHER, Defendant-Appellant-Petitioner.
• Court: United States State Supreme Court of Wisconsin

778 N.W.2d 629

2010 WI 6

STATE of Wisconsin, Plaintiff-Respondent, v. Richard M. FISCHER, Defendant-Appellant-Petitioner.

No. 2007AP1898-CR.

Supreme Court of Wisconsin.

Argued October 13, 2009.

Decided February 2, 2010.

For the defendant-appellant-petitioner there were briefs filed by Robin Shellow, Urszula Tempska, and The Shellow Group, Milwaukee, and James M. Shellow and Shellow & Shellow, S.C., Milwaukee, and oral argument by James M. Shellow.

For the plaintiff-respondent the cause was argued by Thomas J. Balistreri, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.

¶ 1 N. PATRICK CROOKS, J

This is a review of a court of appeals decision¹ that affirmed a ruling by the Ozaukee County Circuit Court, the Honorable Tom R. Wolfgram presiding, that excluded an expert's report and opinion testimony based in part on the results of a preliminary breath test (PBT) the defendant took just prior to arrest. Given the PBT result, the later blood test result, and typical absorption rates, the expert's opinion was that the defendant, Richard M. Fischer (Fischer), had a blood alcohol concentration (BAC) below the legal limit at the time he was pulled over by police and that his BAC level only later rose above the limit as his body continued to absorb the alcohol.

¶ 2 In its motion in limine, the State sought to exclude the evidence to the extent that it relied on Fischer's PBT results on two grounds: first, that Wis. Stat. § 343.303, which prohibits admitting PBT results as evidence in drunk driving cases except for limited purposes that are inapplicable here,² means that PBT results cannot be used as the basis for an admissible expert opinion in such a case; and second, that PBT results are not sufficiently reliable to serve as the basis for an expert opinion. Fischer argued that the motion in limine should be denied for two reasons: first, that Wis. Stat. § 907.03, which permits an expert to testify as to an opinion regardless of the admissibility of the underlying data on which the opinion is based, is an exception to Wis. Stat. § 343.303; and second, that any reading of those statutes that would require the exclusion of the expert's opinion would violate his constitutional right to present a defense. The circuit court and court of appeals ruled that the evidence must be excluded in general on the grounds advanced by the State: that Wis. Stat. § 343.303 prohibited the PBT results' use and that PBT results were insufficiently reliable to form the basis of an expert opinion that is admissible under Wis. Stat. §§ 907.02 and 907.03. Before this court, Fischer expanded his argument to urge the court to abandon the established Wisconsin "limited gatekeeper" approach, where reliability of evidence is a matter for the finder of fact, and instead adopt the federal standard articulated in Daubert v. Merrell Dow Pharmaceuticals, Inc.,³ where the trial judge has a significant role in determining reliability.

¶ 3 The questions before us are thus (1) whether Wis. Stat. § 343.303 creates an absolute bar on the admission of PBT results in operating while intoxicated (OWI) prosecutions, even when used as the basis for an expert's opinion offered under Wis. Stat. § 907.03; (2) if so, whether such an application of the statute violates a defendant's constitutional right to present a defense; and (3) whether we will accept counsel's invitation to revisit and reject the Wisconsin case law that establishes that "the reliability of the evidence is a weight and credibility issue for the fact finder."⁴

¶ 4 Though our analysis diverges in some respects from that of the circuit court and the court of appeals, we agree that the circuit court properly granted the State's motion in limine seeking to exclude the report and expert opinion testimony Fischer sought to introduce. Wisconsin Stat. § 343.303 expressly bars PBT results in OWI cases, and to allow Wis. Stat. § 907.03 to trump that prohibition would simply nullify that provision and would consequently present a variety of needless obstacles to the investigation, prosecution, and defense of drunk driving cases. Giving effect to the two statutes together under these circumstances admittedly presents difficulties, but it is no solution to transform Wis. Stat. § 343.303's inadmissibility into admissibility, reversing the legislature's clearly stated intention. Principles of statutory construction and our duty to respect clear legislative policy decisions require us to read Wis. Stat. § 343.303 to create an exception to § 907.03 and forbid us to read § 907.03 as nullifying the prohibition in § 343.303.⁵

¶ 5 Fischer argues that excluding the expert's opinion violates his right under the constitutions of the United States and Wisconsin to present a defense. We disagree. In United States v. Scheffer, the United States Supreme 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.'"⁶ This court articulated and applied the Scheffer analysis in State v. St. George, 2002 WI 50, ¶ 52, 252 Wis.2d 499, 643 N.W.2d 777. To evaluate Fischer's constitutional claim, we apply the two-part test set forth in St. George, 252 Wis.2d 499, ¶¶ 54-55, 643 N.W.2d 777. We need not decide whether Fischer has satisfied the factors in the first step, i.e., that the testimony of the expert witness met the standards of Wis. Stat. § 907.02, that the opinion testimony in question is "clearly relevant to a material issue[,]" id., ¶ 54, that it is necessary to Fischer's defense, and that its probative value outweighs the prejudicial effect. We assume for purposes of this analysis that Fischer has satisfied all four factors in the first part of the inquiry. We then reach the second step, which involves weighing the defendant's right against the State's interest in excluding the evidence. For reasons explained herein, we hold 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.⁷

¶ 6 Accordingly, we affirm. Though we benefit from the analyses of the court of appeals and the circuit court, we reach the result via a different analysis than that of those courts. The circuit court's grant of the motion in limine excluding the report and expert opinion was proper under Wisconsin statutes and it did not violate Fischer's constitutional right to present a defense. The rule we adopt here is not a blanket rule against absorption curve opinion evidence but rather a rule prohibiting use of PBT results in the manner attempted here.⁸

¶ 7 Our analysis does not turn on an evaluation of the reliability of an expert opinion based on PBT results, which after all are routinely relied on to establish probable cause for arrest and have been held to be admissible for purposes other than those prohibited by statute.⁹ Because we conclude that the State's countervailing compelling interest and not the reliability of the expert testimony is dispositive of the analysis, there is no reason for us to revisit Wisconsin's well-established role for the circuit court where expert testimony is proffered. The law in Wisconsin continues to be that questions of the weight and reliability of relevant evidence are matters for the trier of fact. As we stated in State v. Walstad, "This is the relevancy test of our rules and we adhere to it."¹⁰ We, therefore, decline to adopt a Daubert-like approach to expert testimony that would make the judge the gatekeeper.

I. BACKGROUND

¶ 8 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.¹¹ 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.

¶ 9 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...