Wisconsin DUI probable cause case
The Wisconsin Supreme Court is set to rule on whether there can be probable cause for a DUI arrest without an odor of alcohol, or, as the attorney arguing for the defense put it, any indication of drinking at all.
Wisconsin supreme court takes on drunk driving evidence - WKOW 27: Madison, WI Breaking News, Weather and Sports -: "'If you're going to drive drunk, make sure you really go big, because you need to have an accident, if it's really bad and there's a gasoline smell and someone's almost died, that you're not going to be able to arrest unless they can smell alcohol or see beer cans, or something like that in the car,' Ziegler said.
'That's the standard you're asking this court to accept.'
Cohen demurred. 'I'm not saying you need an odor of alcohol, I'm not saying you need a beer can, I'm just saying you need something that would indicate the use of intoxicants.
Justices pointed out state law assumes permission to test blood for alcohol, even if a driver is unconscious, if there's an odor of booze, or probable cause.
'The inference to me is that you can have probable cause to believe a violation, without detecting any presence of alcohol,' Justice Ann Walsh-Bradley said.
Another standard that determines whether a drunk driving investigation can happen is the totality of the circumstances.
Mitchell Lange's arrest and blood draw took place at a Madison hospital. It was his second drunk driving arrest."
This case could mark a shift in Wisconsin DUI law, and has the potential to reach the US Supreme Court.
Wisconsin DUI ignition interlock device video
Here is a video about Wisconsin DUI cases and ignition interlock devices.
Ignition interlock devices are the cause of the day for states that don't already have them. We are monitoring as more states debate requiring them for first offense DUI convictions.
What do you think... should interlock devices be required for all DUI cases?
Defense expert can not rely on preliminary breath test result
In most states the preliminary breath test (PBT) result is not admissible in DUI cases. The PBT is typically inadmissible because it is inaccurate. However, when a PBT is exonerating, and an evidentiary breath or blood test is incriminating, the defense may want the PBT admitted into evidence.
The Opinion: The Court of Appeals of Wisconsin in State v. Fisher, decided against the admission of a defense-favorable PBT on 9/10/08.
Quotes: A general description of the difference between a PBT and an evidentiary breath test:
Unlike the Intoximeter, the PBT is not tested for accuracy either immediately before or after a test. The intoximeter is a “quantitative” test and the PBT is a “qualitative” test.
Clearly, the former test calls for an accurate “measurement” that is, after all, the definition of the word “quantitative”-something “involving the measurement of quantity or amount.” Webster's Third New Int'l Dictionary 1859 (3d ed.1993). A qualitative analysis, as any chemistry major would know, merely determines the constituents of a substance without any regard to the quantity of each. Id. at 1858. Thus, as succinctly defined in the administrative code, the qualitative breath test is for the purpose of determining only whether alcohol is present or not.
Quotes: Why the defense expert was not allowed to proffer an opinion based on the PBT:
Dr. Steele can compare the PBT result with a blood test result 100 times and be convinced as to the reliability of his absorption curve analysis. But is his analysis valid? We must answer the question “no” because Fischer's PBT result is not an empirically tested measurement.
Why allow an expert, one with a science background, to rely on a test whose accuracy at the time of the test cannot be authenticated as a foundation for an opinion? That makes no sense.
Discussion: In DUI cases experts often “backdoor” inadmissible evidence into their opinion. Experts on both sides of the “v” do it. Both prosecutors and defense lawyers at times knowingly allow and even encourage such testimony. In this case, as an example, a defense lawyer could ask the expert generally:
“Given your review of the materials in this case and your whole knowledge of the facts, do you have an opinion as to whether it is possible that Fisher could have been below the legal limit.”
Without qualifying that the expert can only form such an opinion by presuming that the PBT is accurate (an assumption that no honest expert can make), the answer would be garbage and the legal ethics of the question questionable.
