State v. McManus
| Decision Date | 15 November 1989 |
| Docket Number | 88-0951,Nos. 87-1815-C,s. 87-1815-C |
| Citation | 152 Wis.2d 113,447 N.W.2d 654 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Michael J. McMANUS, Defendant-Appellant. STATE of Wisconsin, Plaintiff-Respondent, v. William A. PANGMAN, Defendant-Appellant. |
| Court | Wisconsin Supreme Court |
Ralph A. Kalal, argued, and Kalal and Habermehl, Madison, on brief, for defendant-appellant in No. 87-1815-CR.
For the plaintiff-respondent the cause was argued by Jerome S. Schmidt, Asst. Atty. Gen., argued, Donald J. Hanaway, Atty. Gen., on brief for plaintiff-respondent in No. 87-1815-CR.
Richard L. Kaiser, argued, Peter J. Heflin, and William A. Pangman & Associates, Waukesha, on brief, for defendant-appellant in No. 88-0951.
Christopher W. Stock, Ozaukee County Asst. Dist. Atty., serving as Special Prosecutor, argued, for plaintiff-respondent in No. 88-0951.
This opinion decides two cases that involve the construction and constitutionality of that part of sec. 346.63(1)(b), Stats. which prohibits driving or operating a motor vehicle with 0.1 grams or more of alcohol in 210 liters of breath. Defendant-Appellant Michael J. McManus appeals a judgment of conviction of the circuit court for Dane county, the Honorable George A.W. Northrup presiding. Defendant-Appellant William A. Pangman appeals a judgment of conviction of the circuit court for Waukesha county, the Honorable Walter J. Swietlik presiding. This court accepted the appeals on certifications from the court of appeals, pursuant to sec. 809.61.
Mr. McManus was arrested and issued a citation for operating a motor vehicle while under the influence of an intoxicant, contrary to sec. 346.63(1)(a), Stats., (1985-86) on March 22, 1986, after a city of Madison police officer observed him drive his car over the curb of a city street. McManus submitted to a breath test which showed a breath alcohol concentration of 0.13 grams per 210 liters of breath. The breath test was performed by an "Intoxilyzer 5000," a Wisconsin Department of Transportation approved breath testing device. See Wis.Admin.Code Sec. Trans. 311.04. On that basis, McManus was issued a second citation for operating a motor vehicle with 0.1 grams or more of alcohol in 210 liters of breath, contrary to sec. 346.63(1)(b). Following a trial by jury, McManus was acquitted on the first charge, but found guilty of violating sec. 346.63(1)(b).
Mr. Pangman was arrested and issued a citation for operating a motor vehicle while under the influence of an intoxicant, contrary to sec. 346.63(1)(a), Stats., (1987-88) on April 26, 1987, after a Wisconsin state patrol officer observed him driving erratically on an interstate highway. Pangman submitted to an Intoxilyzer 5000 breath test which showed a breath alcohol concentration of 0.11 grams per 210 liters of breath. On that basis, Pangman was issued a second citation for operating a motor vehicle with 0.1 grams or more of alcohol in 210 liters of breath, contrary to sec. 346.63(1)(b). Following a trial by jury, Pangman was found guilty on both charges.
Pangman contends the circuit court misconstrued sec. 346.63(1)(b), Stats., as establishing a per se breath violation and erroneously excluded evidence of the breath to blood partition ratio utilized by the Intoxilyzer 5000 and Pangman's particular partition ratio. Pangman alternatively contends, and is joined in this contention by McManus, that if sec. 346.63(1)(b), sets forth a per se breath violation, the statute unconstitutionally violates the due process and equal protection clauses of the United States and Wisconsin Constitutions. Pangman additionally contends that the Wisconsin Department of Transportation has unconstitutionally usurped legislative authority by implicitly defining the term "breath" in sec. 346.63(1)(b), and that sec. 346.63(1)(b), is unconstitutionally vague as applied. Pangman further contends the circuit court erred in admitting into evidence Pangman's breath test result and expert testimony relating the degree of impairment caused by a breath alcohol concentration of 0.1 grams of alcohol in 210 liters of breath. We find none of Defendants' contentions persuasive and affirm both convictions.
Pangman contends the circuit court misconstrued sec. 346.63(1)(b), Stats., as establishing a per se breath violation and erroneously excluded as irrelevant evidence relating to the partition ratio utilized by the Intoxilyzer 5000 and his particular partition ratio.
The partition ratio provides the means by which a breath test result is converted to a corresponding blood alcohol concentration. The Intoxilyzer 5000 utilizes a partition ratio of 2,100:1, which provides that for every molecule of alcohol in the breath there are assumed to be 2,100 molecules of alcohol in the blood. The 2,100:1 ratio is utilized by all breath testing devices. Although a person's particular partition ratio may vary from that assumed by the Intoxilyzer 5000, the 2,100:1 ratio has been shown to either correctly estimate or underestimate a person's corresponding blood alcohol concentration with 94 percent accuracy. See Harding & Field, Breathalyzer Accuracy in Actual Law Enforcement Practice: A Comparison of Blood- and Breath- Alcohol Results in Wisconsin Drivers, 32 Journal of Forensic Sciences 1235, 1237-38 (1987); see also State v. Brayman, 110 Wash.2d 183, 751 P.2d 294, 300 (1988).
At trial, Pangman sought to introduce evidence that his particular partition ratio is only 1,890:1. On the basis of that partition ratio, Pangman calculates his corresponding blood alcohol concentration to be only 0.098 percent.
The decision to admit or exclude evidence will only be overturned on appeal where the circuit court has abused its discretion. State v. Hinz, 121 Wis.2d 282, 285, 360 N.W.2d 56 (Ct.App.1984). "To find an abuse of discretion an appellate court must find either that discretion was not exercised or that there was no reasonable basis for the trial court's decision." Wisconsin Public Service Corp. v. Krist, 104 Wis.2d 381, 395, 311 N.W.2d 624 (1981).
Pangman does not argue that the circuit court failed to exercise discretion in making its ruling. The record clearly indicates otherwise. The issue was briefed and argued by the parties, and the circuit court rendered a written decision excluding the partition ratio evidence.
Pangman's challenge is that there exists no reasonable basis for the circuit court's decision. The circuit court excluded the evidence on the basis sec. 346.63(1)(b), Stats., unambiguously sets forth a per se rule that it is a violation of the statute to drive or operate a motor vehicle with a breath alcohol concentration of 0.1 grams or more of alcohol in 210 liters of breath. A person's corresponding blood alcohol concentration as calculated by means of his or her particular partition ratio, the circuit court reasoned, is irrelevant to that determination. Pangman argues the circuit court's decision is without a reasonable basis because sec. 346.63(1)(b), merely sets forth a statutory presumption that 0.1 grams of alcohol per 210 liters of breath is the equivalent of a blood alcohol concentration of 0.1 percent. Pangman asserts the excluded partition ratio evidence is relevant to rebut that presumption.
The interpretation of a statute is a question of law which this court may review without deference to the lower court. Delvaux v. Langenberg, 130 Wis.2d 464, 475, 387 N.W.2d 751 (1986). The primary source to be used in construing a statute is the statutory language itself. State v. Sher, 149 Wis.2d 1, 8-9, 437 N.W.2d 878 (1989).
Section 346.63(1)(b), Stats., at the times both McManus and Pangman were charged, provided:
(1) No person may drive or operate a motor vehicle while:
(b) The person has a blood alcohol concentration of 0.1% or more by weight of alcohol in the person's blood or 0.1 grams or more of alcohol in 210 liters of that person's breath.
We agree with the circuit court's conclusion that sec. 346.63(1)(b), Stats., unambiguously sets forth a per se breath violation which renders irrelevant evidence of the partition ratio utilized by the Intoxilyzer 5000 and Pangman's particular partition ratio. The statute provides it is a violation to drive or operate a motor vehicle with 0.1 grams of alcohol or more in 210 liters of the person's breath. There is no requirement in sec. 346.63(1)(b), that a person's breath test result must be converted to a corresponding blood alcohol concentration. Nor is there a requirement in the statute that a person violating the breath standard must have violated the blood standard as well.
Pangman argues sec. 346.63(1)(b), Stats., is at least ambiguous. Pangman asserts that in creating the statute, the legislature intended only to prohibit driving or operating a motor vehicle with a blood alcohol concentration of 0.1 percent or more and intended only that a breath test provide an alternative means of establishing blood alcohol concentration.
We find no support for Pangman's argument in the legislative history of the statute. Section 346.63(1)(b), Stats., was enacted in Chapter 20 of the Laws of 1981. Prior to the passage of Chapter 20, there was no per se alcohol violation. Rather, there existed only a number of statutory presumptions relating to driving or operating a motor vehicle while under the influence of an intoxicant, contrary to sec. 346.63(1), (1979-80). Section 346.63(4), (1979-80), set forth a presumption that a person with a blood alcohol concentration of 0.1 percent or more was prima facie under the influence of an intoxicant. Section 885.235(2a), (1979-80), provided the concentration of alcohol in 2100 cubic centimeters of deep lung or alveolar breath was prima facie equal to the concentration of alcohol in one cubic centimeter of blood. In Chapter 20, the legislature eliminated those presumptions and...
To continue reading
Request your trial
-
City of Milwaukee v. Arrieh
...any facts on which the legislation could reasonably be based, it must hold the legislation constitutional." State v. McManus, 152 Wis.2d 113, 129, 447 N.W.2d 654, 660 (1989) (citations omitted). Further, as the United States Supreme Court explained, "A facial challenge to a legislative Act ......
-
State Of Wis. v. Mcguire
...“rationally related to a valid legislative objective.” Jorgensen, 264 Wis.2d 157, ¶ 33, 667 N.W.2d 318 (quoting State v. McManus, 152 Wis.2d 113, 130-31, 447 N.W.2d 654 (1989)). The distinction between public residents and public non-residents set out in Wis. Stat. § 939.74(3) is rationally......
-
State v. Luedtke
...of its respective clause in the federal constitution.” Greenwold II, 189 Wis.2d at 71, 525 N.W.2d 294 (citing State v. McManus, 152 Wis.2d 113, 130, 447 N.W.2d 654 (1989) ). Greenwold II continued to hold to precedent in concluding that the Youngblood test controlled and, because the Wiscon......
-
State v. Post
...94 (1995). Further, the challenger bears the burden to prove a statute unconstitutional beyond a reasonable doubt. State v. McManus, 152 Wis.2d 113, 129, 447 N.W.2d 654 (1989). SUBSTANTIVE DUE Post and Oldakowski argue that chapter 980 is unconstitutional because it interferes with their fu......
-
Chemical evidence
...blood/breath partition ratio is other than 2100:1, but may not attack general validity of the 2100:1 ratio). But see State v. McManus , 447 N.W.2d 654 (Wis. 1989); State v. Pangman , 447 N.W.2d 654 (Wis. 1989) (Wisconsin Supreme Court held that partition ratio evidence is irrelevant; State ......
-
Table of cases
...(1997) 251 Neb. 940, 560 N.W. 2d 789, §7:20.26.3 State v. McElroy , 568 So.2d 1016, 1016-7 (La. 1990), §9:30.3 State v. McManus (1989) 152 Wis2d 113, 447 NW2d 654, §1:11.2 State v. McPartland , 212 ME 12, 36 A.3d 881 (2012), §7:20.27.2 State v. Mercier (Mont. 2021) 479 P.3d 967, 975, §9:16.......
-
Drunk driving offenses
...on the breath. Three out-of-state cases have ruled upon and approved a few of these breath alcohol laws. In State v. McManus (1989) 152 Wis2d 113, 447 NW2d 654, State v. Brayman (1988) 110 Wash.2d 183, 751 P2d 294, and People v. Gustafson 551 NE2d 826 (Ill.App. 1990), the courts upheld stat......