Wisconsin Supreme Court Upholds Constitutionality of Statute Limiting Use of Preliminary Breath Test Results as Evidence in Drunk Driving Trials

 "Our Legislature has made it clear that PBT results are inadmissible in OWI cases," says Van Hollen.   "The Supreme Court has appropriately taken a practical approach to the problem of drunk driving by upholding the Legislature's efforts to enact laws designed to get drunk drivers off the road."

MADISON - This morning, the Wisconsin Supreme Court upheld Richard M. Fischer's Ozaukee County conviction for operating a vehicle while intoxicated (second offense).  In so doing, the Court upheld the constitutionality of a Wisconsin law that prohibits the admission of preliminary breath test (PBT) results as evidence in drunk driving trials.

Wisconsin Attorney General J.B. Van Hollen, whose office defended both the conviction and the constitutionality of the state law, fully supported the outcome.  "Our Legislature has made it clear that PBT results are inadmissible in OWI cases," said Van Hollen.   "The Supreme Court has appropriately taken a practical approach to the problem of drunk driving by upholding the Legislature's efforts to enact laws designed to get drunk drivers off the road."

Wisconsin law enforcement officers routinely administer preliminary breath tests as an initial step in drunk driving investigations.  But Wisconsin law prevents the admission of PBT results at trial except to show probable cause for a drunk driving arrest, or to prove the test was properly required or requested.

Despite this limitation, Fischer sought to present the trial testimony of an expert who would have stated that, based on his calculations (which included PBT results), Fischer was not drunk at the time he was stopped by the police. Fischer argued that his constitutional right to present evidence trumped the legal limitation on use of PBT results at trial.

The Wisconsin Supreme Court rejected Fischer's argument, holding that the State has a compelling interest in excluding PBT results at drunk driving trials to encourage persons stopped for drunk driving to voluntarily agree to take the test. The Court noted that police normally administer the PBT before they have probable cause to arrest a person for drunk driving, and the results of the test can provide the critical information the police need to make a lawful arrest. Following an arrest, the police can require the suspected drunk driver to submit to chemical tests, the results of which are admissible at a trial.  The Court held that "promoting the gathering of evidence necessary to arrest those who are actually intoxicated obviously furthers the State's compelling interest in arresting and prosecuting drunk drivers."

The Wisconsin Supreme Court's decision in State of Wisconsin v. Richard M. Fischer, No. 2007AP1898-CR, appears on the Court's website:

http://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=46620

The Ozaukee County District Attorney's Office prosecuted Fischer in Ozaukee County Circuit Court.  Assistant Attorney General Thomas J. Balistreri represented the State of Wisconsin in the Wisconsin Supreme Court.