State v. Luedtke

• Decision Date: 24 April 2015
• Docket Number: 2013AP218–CR.,Nos. 2013AP1737–CR,s. 2013AP1737–CR
• Citation: State v. Luedtke, 362 Wis.2d 1, 863 N.W.2d 592 (Wis. 2015)
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Michael R. LUEDTKE, Defendant–Appellant–Petitioner. State of Wisconsin, Plaintiff–Respondent, v. Jessica M. Weissinger, Defendant–Appellant–Petitioner.
• Court: Wisconsin Supreme Court

362 Wis.2d 1

863 N.W.2d 592

STATE of Wisconsin, Plaintiff–Respondent

v.Michael R. LUEDTKE, Defendant–Appellant–Petitioner.

State of Wisconsin, Plaintiff–Respondent

v.Jessica M. Weissinger, Defendant–Appellant–Petitioner.

Nos. 2013AP1737–CR

2013AP218–CR.

Supreme Court of Wisconsin.

Argued Feb. 3, 2015.

Decided April 24, 2015.

For the defendant-appellant-petitionerMichael R. Luedtke, the cause was argued by Donald T. Lang.There were briefs by Donald T. Lang, assistant state public defender.

For the defendant-appellant-petitionerJessica M. Weissinger, the cause was argued by Gerald P. Boyle.There were briefs by Gerald P. Boyle, and Boyle, Boyle & Boyle, S.C., Milwaukee.

For the plaintiff-respondent in both cases, the cause was argued by Winn S. Collins, assistant attorney general, with whom on the briefs was J.B. Van Hollen, attorney general.

Opinion

MICHAEL J. GABLEMAN, J.

¶ 1 This is a review of two published decisions of the court of appeals, State v. Luedtke,2014 WI App 79, 355 Wis.2d 436, 851 N.W.2d 837, andState v. Weissinger,2014 WI App 73, 355 Wis.2d 546, 851 N.W.2d 780.We consolidated the cases for the purpose of this opinion because both present the same issue on largely similar facts.Both cases require us to examine the constitutional implications of blood sample destruction that deprived the defendants of the opportunity to independently test their samples.

¶ 2 In Luedtke, the Winnebago County District Attorney's Office charged Michael R. Luedtke(“Luedtke”) with one count of operating a motor vehicle while under the influence of a controlled substance (diazepam and methadone), seventh, eighth, or ninth offense, contrary to Wis. Stat. § 346.63(1)(a)(2009–10),¹ and one count of operating a motor vehicle with a detectable amount of a restricted controlled substance (cocaine and its metabolite, benzoylecgonine² ) in the blood, seventh, eighth, or ninth offense, contrary to Wis. Stat. § 346.63(1)(am).³The jury found Luedtke not guilty of operating a motor vehicle while under the influence of a controlled substance but found him guilty of operating a motor vehicle with a detectable amount of a restricted controlled substance in the blood.The Winnebago County circuit court⁴ withheld a sentence and placed Luedtke on probation for a period of four years, with 12 months of conditional jail time, imposed and stayed.

¶ 3 Luedtke filed a post-conviction motion arguing that the State violated his due process rights when the Wisconsin State Laboratory of Hygiene(“Laboratory”) destroyed his blood sample, in accordance with routine procedures, before he had the opportunity to test it.Luedtke also argued that the charge of operating a motor vehicle with a detectable amount of a restricted controlled substance in the blood is unconstitutional without scienter.⁵The Winnebago County circuit court rejected both claims, and Luedtke appealed.

¶ 4The court of appeals affirmed and concluded (1) that the State did not violate Luedtke's due process rights when the Laboratory destroyed his blood sample in accordance with routine procedures; and (2) that the statute prohibiting operating a motor vehicle with a detectable amount of a restricted controlled substance in the blood is a strict liability offense, and thus does not require scienter.Luedtke,355 Wis.2d 436, ¶ 1, 851 N.W.2d 837.Further, the court concluded that the statute was constitutional.Id.

¶ 5 In Weissinger, the Ozaukee County District Attorney's Office charged Jessica M. Weissinger(“Weissinger”) with one count of injury by use of a vehicle with a restricted controlled substance in the blood causing great bodily harm, contrary to Wis. Stat. § 940.25(1)(am),⁶ and one count of operating a motor vehicle with a detectable amount of a restricted controlled substance in the blood (Delta–9–tetrahydrocannabinol (“THC”)), second offense, contrary to Wis. Stat. § 346.63(1)(am).Prior to trial, Weissinger filed a motion to dismiss, arguing that the admission of her blood test results into evidence violated her due process rights because the Laboratory had destroyed her blood sample before she had the opportunity to test it.The Ozaukee County circuit court⁷ denied the motion, and the jury subsequently found her guilty of both counts.The court withheld a sentence on both counts and placed Weissinger on probation for a period of five years for count one and two years for count two, to be served concurrently.As a condition of probation, the court ordered five months of conditional jail time, stayed pending Weissinger's appeal.The court of appeals affirmed, concluding that the State did not violate Weissinger's due process rights when the Laboratory destroyed her blood sample in accordance with its routine procedures.Weissinger,355 Wis.2d 546, ¶ 1, 851 N.W.2d 780.

¶ 6 Two issues are presented for our review.The first, applicable to both parties, is whether the State violated Luedtke and Weissinger's due process rights when the Laboratory destroyed their blood samples, pursuant to routine procedures, before each had the opportunity to test the samples.The second, applicable to only Luedtke, is whether operating a motor vehicle with a detectable amount of a restricted controlled substance in the blood under Wis. Stat. § 346.63(1)(am) is a strict liability offense, and, if so, whether the statute is constitutional.

¶ 7 First, based on precedent, we hold that, in the context of evidence preservation and destruction, the Wisconsin Constitution does not provide greater due process protection under Article 1, Section 8, Clause 1⁸ than the United States Constitution under either the Fifth⁹ or Fourteenth¹⁰ Amendments.As a result, Arizona v. Youngblood,488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281(1988), controls.Accordingly, in order to prevail, Luedtke and Weissinger must show that the State(1) failed to preserve evidence that was apparently exculpatory, or (2) acted in bad faith by failing to preserve evidence that was potentially exculpatory.State v. Greenwold,189 Wis.2d 59, 67, 525 N.W.2d 294(Ct.App.1994)(Greenwold II ).Luedtke and Weissinger's blood samples were neither apparently exculpatory nor destroyed in bad faith; therefore, the State did not violate their due process rights.

¶ 8 Second, we hold that operating a motor vehicle with a detectable amount of a restricted controlled substance in the blood under Wis. Stat. § 346.63(1)(am) is a strict liability offense that does not require scienter, and is constitutional.We therefore affirm the court of appeals.

I.FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. Michael R. Luedtke

¶ 9 On April 27, 2009, at 2:07 PM in Oshkosh, Wisconsin, Luedtke, driving a Ford Escort belonging to his employer, rear-ended another vehicle, extensively damaging it and injuring its driver.Luedtke stated that he caused the accident when he took his eyes off the road to reach for his cell phone.Police officers arrived at the scene and eyewitnesses told them that Luedtke had stuffed a blue bag-like item into the sewer after the collision.Detective Christopher Guiliani(“Detective Guiliani”) searched the sewer and found a blue shirt wrapped around six syringes and a metal spoon.Luedtke later testified that he hid the syringes, but not the spoon, in the sewer in a panic because he thought that they were illegal items.He also testified that he did not know that the items were in the car before the accident.

¶ 10 At the scene, Officer Joseph Framke(“Officer Framke”) spoke with Luedtke.Luedtke admitted that he had taken several prescription medications and occasionally used marijuana.Luedtke consented to a search of his vehicle and Officer Framke found, in the driver's side door pocket, three additional syringes and an unlabeled prescription bottle containing powder residue.In his initial interactions with Luedtke, Officer Framke did not notice any significant signs of intoxication but concluded that Luedtke was impaired after Luedtke failed standard field sobriety tests.Detective Brett Robertson(“Detective Robertson”) administered a 12–step test that helps to determine if a person is under the influence of drugs and concluded that Luedtke was impaired.Luedtke claimed that his poor performance on the sobriety tests was due to prior injuries, his misunderstanding of the directions, and injuries that he sustained during the accident.Detective Robertson also observed fresh puncture marks near Luedtke's right thumb.Luedtke admitted that while he did inject morphine, the particular puncture marks observed by Detective Robertson were from work injuries, not drugs.

¶ 11 It is undisputed that at 3:28 PM on the day of the accident police conducted a legal blood draw.Prior to the blood draw, Detective Guiliani read Luedtke the “informing the accused”¹¹ form after which Luedtke consented to the blood draw.The informing the accused form told Luedtke that:

This law enforcement agency now wants to test one or more samples of your breath, blood or urine to determine the concentration of alcohol or drugs in your system....If you take all the requested tests, you may choose to take further tests.You may take the alternative test that this law enforcement agency provides free of charge.You may also have a test conducted by a qualified person of your choice at your expense.

Luedtke declined an alternative test.

¶ 12 On April 30, 2009, Luedtke's blood sample arrived at the Laboratory, a public health laboratory at the University of Wisconsin that is accredited by the American Board of Forensic Toxicologists and that acts independently from the direction of any law enforcement agency.On May 1, 2009, Advanced Chemist Thomas Neuser(“Neuser”) tested Luedtke's blood sample for alcohol.The Laboratory generated a report in May 2009 indicating that Luedtke's blood tested negative for alcohol.The report stated that “Specimen(s) will be retained no longer than six months unless otherwise requested by agency or subject.”

¶ 13 On November 18, 2009, the sample...