State v. Raduege
| Citation | 301 N.W.2d 259,100 Wis.2d 27 |
| Decision Date | 09 December 1980 |
| Docket Number | Nos. 79-1808,s. 79-1808 |
| Parties | STATE of Wisconsin, Plaintiff-Appellant. v. Robert W. RADUEGE, Michael W. Koppelkam, Gary A. McConahay, Jeffrey J. Staupe, Richard F. Hasselstrom, Bryan J. Maker, Eligio Bobadilla, and Michael J. Koons, Defendants-Respondents. to 79-1810, 80-068, 80-071, 80-112, 80-211, 80-473 and 80-617. |
| Court | Court of Appeals of Wisconsin |
Review Denied. *
Bronson C. La Follette, Atty. Gen., and John W. Calhoun, Asst. Atty. Gen., on brief, for plaintiff-appellant.
Daniel P. Fay of Fay & Wuebben, Pewaukee, Charles I. Phillips of Love, Brown, Love, Phillips & Davis; Jacob A. Schwei of Brenner, Brenner & Frame and Wimmer, Evans & Vollmar, Waukesha, on briefs, for defendants-respondents.
Before VOSS, P. J., and BROWN and SCOTT, JJ.
These consolidated cases compel this court to address a number of procedural issues raised by our decision in State v. Booth, 98 Wis.2d 20, 295 N.W.2d 194 (Ct.App.1980). In each case, following the Booth precedent, the trial court suppressed the State's evidence of breathalyzer test results upon a finding that the State failed to preserve the breathalyzer test ampoule. On appeal, the State contends that the trial court erred in suppressing the breathalyzer results evidence since these defendants are barred from benefiting from the Booth decision. The State supports this contention by pointing out that in each case the defendants failed to make a motion for scientific testing within thirty days after the administration of the breathalyzer test. Booth is cited as authority for the proposition that unless a motion for scientific testing is made within thirty days, it is waived. Because we find no thirty day time limit exists, we affirm.
In the recent case of State v. Booth, supra, this court affirmed the suppression of the results of a breathalyzer test given to the defendant. Our holding was based upon a belief that the circuit court was correct in finding that "the ampoule used in the breathalyzer test constituted material evidence and that its destruction by the State denied defendant his constitutional right to due process of law." (Footnote omitted.) Id. at 20, 295 N.W.2d at 195. 1
Briefly, a breathalyzer operates by exposing a sample of the defendant's breath to a standard mixture of chemical reagents in an ampoule. The proper volume and concentration of chemicals in the ampoule are critical to the accuracy of the reading. Although the spent ampoule cannot be retested to verify the exact percentage of alcohol in the blood, it can be tested to determine if the ampoule contained the proper mixture. By doing so, a defendant may challenge the reliability and credibility of the breathalyzer test results.
Because the volume and concentration of chemicals in the ampoule are subject to change with the passage of time, it is not always possible to determine whether the proper standard mixture of chemical reagents existed in the ampoule at the time the breathalyzer test was administered. In the Booth case, the trial court determined in its findings of fact that it was possible to test the chemical makeup of the ampoule up to thirty days after the administration of the breathalyzer test. This finding, however, was based solely upon the expert testimony offered in the Booth case. Upon the basis of expert testimony, other courts have held that the chemicals in the ampoule would always remain constant and, therefore, subject to accurate analysis to determine if the proper concentrations were present. 2
By way of footnote, this court concluded that the Booth trial court "impliedly imposed a thirty day period in which the request for production of the test ampoule must be made, ...." Id. 98 Wis.2d at 22-23 n.2, 295 N.W.2d at 196 n.2. In commenting on the reasonability of that inferred thirty day time limit, this court stated: Id. at 33, 295 N.W.2d at 200-201.
In all of these cases, the trial court suppressed the State's evidence of breathalyzer test results solely upon the finding that the State failed to preserve the breathalyzer test ampoule. The record in each case reflects that the defendant made his motion for scientific testing far in excess of thirty days following the administration of his breathalyzer test. 3 Relying on our inference drawn from the Booth trial court's finding that the ampoule was subject to restandardization for a period of thirty days, the State argues that the suppression orders in these cases were improperly issued since the motions for scientific testing were all made after a thirty day period following the administration of the breathalyzer tests.
We believe the State misinterprets our discussion of the thirty day time limit in the Booth decision. Based upon the record of proceedings in the Booth matter, this court merely held that it would not present an unwarranted burden on either defense counsel or the State, if the State had to preserve the ampoule for a period of thirty days and the defendant had to move the court for scientific testing within that same time period. In essence, we were merely holding that the "implied" thirty day time limit was not unreasonable based upon the testimony in Booth's case. We believe that there is nothing magical about Booth's implied thirty day time limit. Such an implied time limit should not be construed to be applicable to other cases wherein different circumstances may exist and differing expert testimony may be given.
In order for destruction of evidence to result in suppression, the defense must show that the disposed of evidence was clearly material to the issue of guilt or innocence. State v. Booth, supra, at 26, 295 N.W.2d at 197; United States v. Bryant, 439 F.2d 642, 648 (D.C.Cir.1971). In Booth, we found the materiality of the test ampoule to be obvious. The reasoning behind this conclusion was clearly delineated:
The witness whose reliability is crucial in this instance is not the officer who administered the test. The key witness is...
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