State v. Walstad
| Decision Date | 04 September 1984 |
| Docket Number | No. 82-1864-CR,82-1864-CR |
| Citation | 351 N.W.2d 469,119 Wis.2d 483 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Burdette O. WALSTAD, Defendant-Appellant. |
| Court | Wisconsin Supreme Court |
Page 469
v.
Burdette O. WALSTAD, Defendant-Appellant.
Decided June 27, 1984.
As changed Sept. 4, 1984.
Page 471
[119 Wis.2d 485] Sarah B. O'Brien (argued), Madison, for defendant-appellant; Davis & O'Brien, Madison, on brief.
Jeffrey M. Gabrysiak, Asst. Atty. Gen. (argued), for plaintiff-respondent; Lauren Brown-Perry, Asst. Dist. Atty., Harold Harlowe, Dist. Atty., and Bronson C. La Follette, Atty. Gen., on brief.
HEFFERNAN, Chief Justice.
This is an appeal, taken on certification of the court of appeals, by Burdette O. Walstad from a conviction of the circuit court for Dane county, Mark A. Frankel, Circuit Judge, on a plea of no contest to a charge of operating a motor vehicle while under the influence of an intoxicant, in violation of sec. 346.63(1), Stats.1979-80.
The issue posed is whether the results of a breathalyzer test should have been suppressed because the state, in accordance with the procedures then mandated by the department of transportation, destroyed the test ampoule immediately after the administration of the test. The defendant asserts that the destruction of the ampoule, which was allegedly material to a finding of guilt or innocence, and the defendant's consequent inability to examine the ampoule denied him due process of law and requires suppression of the test results and dismissal of the charge.
Because the trial court's findings and its order denying suppression were contrary to several decisions of the court of appeals and, arguably, contrary to decision of this court, we accepted the court of appeals' certification of the appeal.
[119 Wis.2d 486] We sustain the trial court's conclusion that the used test ampoule was not material evidence of the defendant's guilt or innocence, because the ampoule, had it been preserved, could not have been retested or reexamined in a manner that would provide relevant evidence either in respect to the accuracy of the original test or to the guilt or innocence of the defendant. Accordingly, we affirm the conviction.
In so doing we specifically overrule and repudiate the entire line of cases stemming from State v. Booth, 98 Wis.2d 20, 295 N.W.2d 194 (Ct.App.1980), which hold that the destruction of the breathalyzer test ampoule warrants the suppression of the test results and which rely on the theory that a used ampoule is testable to determine blood alcohol and can supply material evidence in respect to a defendant's guilt or innocence. We conclude, on the basis of the facts adduced in this record, that the ampoule and its contents are not retestable, that they cannot be the source of relevant evidence, and that their destruction--and hence the inability to do a retest--does not deny a defendant due process of law. The test results therefore, are not suppressible. Accordingly, because the test results are not to be suppressed, we have no reason to decide the question of whether the charge against Walstad should be dismissed.
The facts on which the charge is based are substantially undisputed. The defendant was arrested on March 19, 1980, and charged with operating a motor vehicle while under the influence of an intoxicant (OMVWI), in violation of sec. 346.63(1), Stats.1979-80. He had been convicted of another OMVWI offense during the preceding five years and, hence, was subject, upon conviction, to the criminal penalties set forth in sec. 346.65(2)(a). 1 [119 Wis.2d 487] Upon arrest he submitted to a breathalyzer test, which showed a .15+ percent Blood Alcohol Content (BAC). 2
The ampoule used in the administration of the test was destroyed by the breathalyzer
Page 472
operator pursuant to the instructions in the operator's checklist provided at that time by the department of transportation.Walstad made his initial appearance without an attorney on April 9, 1980, and it was only after the appointment of an attorney that a motion was made to extend the time for discovery. On May 1, 1980, forty-three days after the breathalyzer test was performed, the defendant moved for the production of the breathalyzer ampoule. The motion was granted, but the ampoule could not be produced, because it had been destroyed as a part of the then routine procedure. The defendant then moved to suppress the test results, which had shown a BAC of .15+ percent. An evidentiary hearing was ordered by the trial judge to determine whether the BAC results should be suppressed.
The hearing held on the motion to suppress was protracted and exhaustive. After a hearing covering four days, the circuit judge denied the motion to suppress the test results. Following this determination, Walstad pleaded no contest, a judgment of conviction was entered, and an appeal was taken. 3
[119 Wis.2d 488] The state on this appeal responsively argues that the motion to suppress was untimely, because it was not made within ten days, as required by sec. 345.421, Stats.1979-80. 4
On the other hand, it is argued by the defendant that the ampoule was also required to be produced pursuant to sec. 971.23(5), Stats.1979-80, 5 which states that, on motion,
"[T]he court may order the production of any item of physical evidence which is intended to be introduced at the trial ...."
The state takes the position that the test ampoule need not be produced, because, "The ampoule was not an item which the state anticipated introducing into evidence at trial."
While we held in City of Lodi v. Hine, 107 Wis.2d 118, 121, 318 N.W.2d 383 (1982), that an ampoule was producible under sec. 345.421, Stats.1979-80, because [119 Wis.2d 489] "the breathalyzer machine is useless without the test ampoule; therefore, the ampoule is a part of the device used and, as such, is covered by the language of sec. 345.421, Stats.," we did not take this case on certification to decide whether or not the motion had been timely brought. Nor did we accept it for a determination of whether the ampoule was producible as an item of physical evidence covered by sec. 971.23(5).
Certification was granted in this case because we shared the concern of the court of appeals that the evidence produced at the hearing in this case, and which was accepted by the trial court, eroded the factual basis on which Booth and its progeny were decided--that a used breathalyzer ampoule could be retested to produce evidence material to the tested subject's guilt or innocence. While the issue succinctly posed by the court of appeals in its request for certification was, "Should the results of
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a breathalyzer test be suppressed or the charge dismissed where the state fails to produce the test ampoule in accordance with a demand for its forty-three days after the test," the real issue stated in its request for certification was the court of appeals' concern that, "by holding that there is no scientific basis for retention of the ampoule, the trial court effectively overrules prior case law and obviates sec. 343.305(10)(d)." 6[119 Wis.2d 490] Hence, we do not decide or consider the arguments in respect to the timeliness of the defendant's motion under sec. 345.421, Stats.1979-80.
The issue in this appeal certified to us is whether a used test ampoule is, or can be, evidence that is "material" to a defendant's guilt or innocence and, consequently, whether its nonproduction as the result of its destruction, not in bad faith, requires suppression of the test results, because to do otherwise would constitute a denial of due process. See, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); United States v. Bryant, 439 F.2d 642 (D.C.Cir., 1971); State v. Amundson, 69 Wis.2d 554, 230 N.W.2d 775 (1975).
Booth, supra, impliedly held that sec. 971.23(5), Stats.1979-80, which provides that physical evidence shall, upon motion, be produced for examination, includes the right to inspect a used test ampoule, because the results based upon the use of the ampoule will be produced at trial to prove the defendant's degree of intoxication. The Booth court begged the question. It assumed that the used test ampoule was material when a demand was made to produce, because its materiality was "obvious." That materiality was, however, "obvious" only when the test was performed. Whether the spent ampoule had materiality[119 Wis.2d 491] at a later date was not "obvious." The court of appeals fell into the error of concluding that the initial "obvious" materiality of the test ampoule continued for an undefined period of time.
Booth demonstrates, however, that the ampoule was considered to be producible on motion and its reexamination admissible on trial on the assumption--which on the facts of Booth appeared warranted--that the used ampoule was retestable for some protracted period of time in a manner that would produce evidence material to the defendant's guilt or innocence. If that assumption of materiality be proved incorrect, then there is no denial of due process for the inability to produce the ampoule as a consequence of its non-bad-faith destruction.
Before discussing the substance of the evidentiary hearings conducted in the instant case by the trial judge at the suppression hearings, it is appropriate to review the methodology of the breathalyzer test and the chemistry upon which it is based.
Booth, supra, 98 Wis.2d at 21, 295 N.W.2d 194, relied upon the exposition in People v. Hitch, 12 Cal.3d 641, 117 Cal.Rptr. 9, 527 P.2d 361 (1974), for a synopsis of breathalyzer procedures. That outline is
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substantially correct, but it omits factors that are important in understanding the breathalyzer.In supplementation of the summary appearing in Booth, we quote below from the Student Study Guide prepared by the Wisconsin Department of Transportation for use as a reference work in the Basic Training Program for Breath Examiner Specialists: 7
[119 Wis.2d 492] This explanation comports with the...
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