State v. Schmidt, 825 N.W.2d 521

Schmidt was convicted of OWI and RAC-offense (fourth) under Wis. Stat. § 346.63(l)(a)-(b).
Jail staff suspected Schmidt was intoxicated when he came to pick up his daughter; deputy Weisse administered field sobriety tests after Schmidt consented.
HGN test yielded six of six indicia of impairment; Schmidt could not complete walk-and-turn; BAC later measured at .13%.
The trial court allowed an HGN test outside the jury if Schmidt testified and the State showed sobriety; upon Schmidt’s testimony, the test was performed outside the jury.
Schmidt testified denying recent alcohol use; the HGN and walk-and-turn results were admitted and the jury convicted Schmidt of OWI and RAC.
The court affirmed, rejecting Fifth Amendment and fair-trial challenges to the time-of-trial HGN test.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether time-of-trial HGN test violated Fifth Amendment.	Schmidt	Schmidt contends the test forces self-incrimination.	No Fifth Amendment violation; test is physical evidence, not testimonial.
Whether time-of-trial HGN test compromised a fair trial.	Schmidt	Admission of test results was unfairly prejudicial.	No fair-trial violation; Schmidt framed issue by testifying and providing foundation.

State v. LaPlante, 186 Wis. 2d 427 (Ct. App. 1994) (constitutional scope of self-incrimination protections)
State v. Stevens, 123 Wis. 2d 303 (1985) (de novo review of constitutional significance when facts undisputed)
State v. Babbitt, 188 Wis. 2d 349 (Ct. App. 1994) (field sobriety tests are not testimonial; not barred by privilege)
State v. Isham, 70 Wis. 2d 718 (1975) (voice identification not protected as testimonial)
State v. Mallick, 210 Wis.2d 427 (Ct. App. 1997) (admission of refusal to submit to field sobriety tests not barred)
State v. Hubanks, 173 Wis.2d 1 (Ct. App. 1992) (compelled in-court voice sample not testimonial)
Holt v. United States, 218 U.S. 245 (1910) (physical evidence not prohibited by self-incrimination)