State v. Luis M. Rocha-Mayo
848 N.W.2d 832
Wis.2014Background
- Late-night road‑rage collision: Rocha‑Mayo drove after drinking, his car and two motorcycles engaged in a high‑speed confrontation on 52nd Street; collision at Green Bay Road killed one motorcyclist.
- Rocha‑Mayo admitted drinking multiple beers at home and at a bar and finishing a beer in his car; bottles were found in his vehicle.
- At the hospital, ER staff administered a preliminary breath test (PBT) for diagnostic purposes that read .086; ER physician Dr. Falco and nurse Edwards testified they smelled alcohol and that Dr. Falco believed Rocha‑Mayo was intoxicated while in the ER.
- Rocha‑Mayo moved to suppress the PBT under Wis. Stat. § 343.303; the circuit court admitted the PBT and used a modified Wis JI‑Criminal 1185 jury instruction; Rocha‑Mayo objected to Dr. Falco’s testimony as embracing legal definitions.
- Jury convicted Rocha‑Mayo of multiple counts including homicide by intoxicated use of a vehicle; the Wisconsin Supreme Court assumed (without deciding) the PBT admission and instruction were erroneous but held any error harmless and affirmed; it upheld admission of Dr. Falco’s ER‑intoxication opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of PBT taken by medical staff (not law enforcement) in OWI‑related trial | Rocha‑Mayo: § 343.303 bars PBT results in OWI prosecutions; hospital PBT inadmissible | State: § 343.303 applies to law‑enforcement PBTs only; hospital diagnostic PBT admissible | Court assumed (but did not decide) admission was error and resolved case on harmless‑error grounds; concurrence would find PBT inadmissible as matter of law |
| Use of Wis JI‑Criminal 1185 instruction modified for PBT evidence | Rocha‑Mayo: instruction improperly allowed jury to treat qualitative PBT like evidentiary test | State: instruction permissibly left jury discretion; did not require a finding | Court assumed (without deciding) use of the instruction was error but found any error harmless beyond a reasonable doubt |
| Admissibility of ER physician’s opinion that defendant was "intoxicated" in ER | Rocha‑Mayo: Dr. Falco’s opinion embraced legal term of art ("under the influence") and required definitional instruction; thus improper | State: Dr. Falco limited his opinion to the ER observation and did not opine about driving ability or intoxication at time of accident | Court held Dr. Falco’s testimony was permissible under Wis. Stat. § 907.04 because it addressed intoxication in the ER (not the legal ultimate issue of intoxicated driving) and did not opine on ability to drive at time of accident |
| Harmless‑error analysis given assumed errors | Rocha‑Mayo: PBT and instruction were central and prejudicial; cannot be harmless | State: ample other evidence (admissions, smell of alcohol, witness testimony, speed) showed intoxication and culpability | Court held any assumed errors were harmless beyond a reasonable doubt — verdict would have been the same absent PBT/instruction |
Key Cases Cited
- State v. Doss, 312 Wis. 2d 570 (2008) (standards for reviewing evidentiary rulings)
- State v. Harvey, 254 Wis. 2d 442 (2002) (harmless‑error framework applying Neder)
- State v. Weed, 263 Wis. 2d 434 (2003) (application of harmless‑error test)
- Neder v. United States, 527 U.S. 1 (1999) (harmless‑error standard for omitted or erroneous elements)
- State v. Fischer, 322 Wis. 2d 265 (2010) (construing § 343.303 and PBT admissibility)
- Lievrouw v. Roth, 157 Wis. 2d 332 (Ct. App. 1990) (expert opinions barred when they embrace legal concepts that require jury definitional instruction)