State v. Luis M. Rocha-Mayo

Plaintiff-Respondent, of Wisconsin, State

v. Luis M. Rocha-Mayo, Defendant-Appellant-Petitioner.†

Supreme Court 4, No. Argument February 2011AP2548-CR. Oral 2014. 11, July Decided 2014.

2014 WI 57 (Also 832.) reported in 848 N.W.2d † 5, Motion for Reconsideration denied November defendant-appellant-petitioner, For the there were Anderegg Anderegg Associates, briefs Rex R. & argument by Anderegg. Milwaukee, and oral Rex R. argued plaintiff-respondent, For the the cause was by Sally attorney general, Wellman, L. assistant with attorney Hollen, whom on the brief was J.B. Van general. J. a an CROOKS, 1. N. PATRICK This is review of unpublished appeals upheld court of decision that Luis first-degree M. for convictions reckless dangerous weapon, by a homicide homicide use of first-degree vehicle, intoxicated use of a reckless endan- germent by dangerous weapon, operating use a a of causing a license death to motor vehicle without valid person.1 high- another speed The convictions stem from a involving Rocha-Mayo's car and collision two motorcycles. The collision resulted in the death of one injuries motorcyclist Rocha-Mayo. as as well During pre- trial, the State introduced the (PBT) liminary breath test result obtained from Rocha- (ER) Mayo by emergency diagnostic an room nurse for 2011AP2548-CR, unpublished Rocha-Mayo, State v. No. 2013). (Wis. 24, slip op. App. Apr. Ct. Court, The Kenosha Circuit the Hon-

purposes. County III orable Wilbur W Warren utilized Wis presiding, in JI —Criminal 11852 on the PBT instructing result. Over Rocha-Mayo's objection, the State also offered from Dr. an ER testimony Falco, William physi- cian who treated Rocha-Mayo. physician testified that to be intoxicated at the time Rocha-Mayo appeared he was treatment in the ER. undergoing 3. Rocha-Mayo asks this court to review three First, issues. whether Wisconsin statutes governing breath alcohol allow admission a PBT testing of result as evidence intoxication while intoxi- operating (OWI) cated related trials when the results are not charge Wisconsin JI —Criminal 1185 addresses the by Operation "Homicide of a Vehicle While Under the Influ Utilizing slightly ence." instruction, modified version of the the circuit jury, part, court instructed the you beyond If are satisfied a reasonable doubt that there was .08 grams or more of alcohol in 210 liters of the defendant's breath at taken, you may the time the test was find that the defendant was alleged under the influence of an intoxicant at the time of the operating, you required but are not to do so. Youthe are here question case, to decide this on the basis of all the evidence in this you should not find that the defendant was under the alleged operating, influence of an intoxicant at the of the time you beyond

unless are satisfied of that fact a reasonable doubt. contrast, passage the same from the standard Wisconsin provides, JI —Criminal 1185 you beyond If are satisfied a reasonable doubt that there was .08 grams or more of alcohol 210 liters of the defendant's breath at taken, you may the time the test was find alone that from fact the defendant was under the influence of an intoxicant at the time alleged operating, you required of the but are not to do so. Youthe

jury question are here to decide this on the all the basis of evidence case, you in this should not find that the defendant was under alleged operating, the influence of an intoxicant at the time of the you beyond unless are satisfied of that fact a reasonable doubt. added.) (Emphasis

88 by Second, enforcement. whether the obtained law improperly regard circuit court instructed the Third, PBT result. whether the circuit court erred testify allowing physician ER that an being appeared intoxicated treated in the ER. The while any State that the circuit court did not err in asserts any regard. alternative, that State contends error circuit court was harmless. conclude that this case can and Since we by application

should be resolved of harmless error analysis, deciding, assume, we without that the circuit admit, erred it allowed the State to as court when profes- PBT evidence, the result obtained a medical diagnostic purposes. Likewise, assume, sional for we deciding, without that the circuit court erred under utilizing these circumstances in Wis JI —Criminal 1185 to instruct the on its use of the PBT We evidence. conclude, however, the circuit did that court exercise appropriate discretion when it allowed Dr. Falco to testify that, based on his observations and medical experience, Rocha-Mayo was intoxicated while under- going agree treatment the ER. We with the court of legal concept "[t]he appeals at issue was whether Rocha-Mayo was under the influence of an intoxicant at operated he Dr. the time the motor vehicle."3 Falco's testimony only related to his observations of Rocha- Mayo testify ER, in the and he did not about Rocha- Mayo's driving ability night on the of the accident. In specifically fact, Dr. testified that he could not Falco give any indication of level of intoxication at the time of the accident. Rocha-Mayo, v. 2011AP2548-CR, State unpublished No. (Wis. 2013). Apr. 24,

slip op., App. Ct. Although deciding we assume without that admitting the circuit court erred in the PBT result as instructing regard evidence and in in alleged PBT, we conclude that these errors were harm- beyond less a reasonable doubt. Even without the PBT Rocha-Mayo's evidence, the heard evidence of level Rocha-Mayo of intoxication from witnesses and from Rocha-Mayo himself. admitted that he consumed two or three beers at home and an additional five or six beers drinking just bar, at a and that he was alcohol his car prior to the collision. Dr. Falco and Steven Edwards, an they ER nurse, testified that could smell alcohol on Finally, breath in the ER. Dr. Falco Rocha-Mayo appeared testified that to be intoxicated being while beyond treated in the ER. We therefore conclude, any doubt, reasonable that error the circuit court did not contribute to the verdict. Background

I. leading up 6. At trial, the facts to the collision disputed. only were We discuss those facts relevant to our decision. Rocha-Mayo 7. On 22, June 2008, left El Ro- approximately

deo,4 a bar in Kenosha, Wisconsin, at closing.5 a.m., 2:00 around the time of the bar's He left traveling bar his vehicle and started west on Shortly leaving 52nd Street. after bar, motorcyclists. encountered three One of the motor- cycles group passenger. in the also carried a 4 Rocha-Mayo also referred to this bar in a statement police during testimony his as "Alas de Oro" and "Oro." 5 The bar's owner and Rocha-Mayo testified that he left closing time, around bar which However, occurs at 2:30 a.m. police reports and witness accounts of suggest the accident Rocha-Mayo left the bar closer to 2:00 a.m. hap- descriptions point, of what At that road-rage type diverge; pened incident un- however, a motorcyclists Rocha-Mayo and the were folded which driving proximity to one another. At one within close motorcyclists point a metal baton the threw one of motorcycle Rocha-Mayo's through rear window. The carrying people of 52nd Street. The other turned off two Rocha-Mayo traveling motorcyclists and continued two speed upwards high of 70 at rates of on 52nd Street per (mph). hour miles Street and Green 9. At the intersection of 52nd Rocha-Mayo's

Bay struck one of the Road, vehicle injuries. motorcycles. motorcyclist later died of his That uninjured motorcyclist and left the scene The other was injuries Rocha-Mayo also sustained of the accident. taken to St. Catherine's Medical Center. attended to Rocha- 10. Dr. Falco and Edwards possible Mayo him a head in ER and examined for the they injury. and Edwards both testified Dr. Falco Rocha-Mayo's Dr. Falco on breath. could smell alcohol Rocha-Mayo talking he observed also testified that Rocha-Mayo rapidly phone upon arrival, and that on his memory the accident. had a diminished of drinking alcohol. Dr. Falco that he had been also told observations, Dr. Falco ordered 11. Due to these presence the breath for Edwards to test Rocha-Mayo's symp- to determine whether of alcohol performed might be alcohol-related. Edwards toms of 0.086.6 PBT and recorded a result limit has 2003, driving for Wisconsin legal Since 346.63; 30, § § 2003 Wis. Act Stat. been 0.08 BAC. See Wis. 346.63(1)(a) driving However, generally prohibits § Wis. Stat. intoxicant, "renders him or any which under the influence safely driving . ..." incapable her Rocha-Mayo sought

¶ 12. PBT to exclude the test argued result from his trial. He that Wis. Stat. prohibits 343.3037 the use of PBT results OWI- related trials. The circuit court denied his motion to suppress the result. The circuit court reasoned that entirety, Wis. Stat. 343.303 must be read in its plain language applies that the of the statute to PBT by results obtained law Therefore, enforcement. circuit court found that the PBT result was admissible professional because it was taken a medical for diagnostic purposes. addition, PBT was not request taken at the of, direction or at of, law pointed enforcement. The circuit court out that no law present enforcement officers were the ER at the time Edwards administered the PBT. Rocha-Mayo proceeded to trial on the

charges first-degree by of reckless homicide use of dangerous weapon, homicide intoxicated use of a first-degree endangerment by vehicle, and reckless use dangerous weapon. pleaded guilty of a trial, Before he charge operating to the of a motor vehicle without a causing person. valid license death to another presented ¶ 14. At trial, the State several wit- motorcyclists Rocha-Mayo nesses who observed the prior on 52nd Street to the collision. These witnesses consistently traveling estimated that the vehicles were upwards mph. police patrol of 70 A officer on observed just prior the vehicles to the accident and testified that driving "recklessly high all three were and at a rate of speed" mph. that he estimated as between 70 and

7 This and all subsequent references to the Wisconsin statutes are to the 2007-08 version unless otherwise indicated. testimony The State also elicited other 15. Rocha-Mayo's police regarding of A level intoxication. Rocha-Mayo a statement from officer who obtained testimony. during read the statement her trial this Rocha-Mayo drinking admitted to three statement p.m. p.m. at home between 7 and 9 before beers his going Rodeo, where, admitted, El he he drank pro- statement also another six beers.8 six-packs purchased information that he two vided the bar as he left and that he continued to beer from away open he from the drink an beer his car as drove inspected A third officer testified that he Rocha- bar. Mayo's following the accident and that he observed car empty full beer bottles scat- one beer bottle five car. tered on the front floorboard of the El owner, 16. The State also called Rodeo's who night question, on the as a worked as a bartender serving did She testified that she not recall witness. Rocha-Mayo and that she could not remem- alcohol to selling any packaged him On cross- ber alcohol. examination, the testified that bar owner appear admitted intoxicated, did to be but she then not evening poor. of the When that her recollection pressed, she testified that she did not recall Rocha- Mayo exhibiting any signs intoxication, such obvious falling as down. testimony presented from State also they

Dr. Falco and Edwards who both testified Rocha-Mayo's breath. In addi- could smell alcohol on 8 testimony largely Rocha-Mayo testified at trial. His was police. He that prior with his statement testified consistent then consumed an he drank two or three beers at home and additional five or six beers at the bar. professional opinion,

tion, that, Dr. in Falco testified his Rocha-Mayo intoxicated at time he was the was treated in the ER. Rocha-Mayo jury guilty

¶ 18. A found of all charges.9 appeals

¶ 19. The court of affirmed. Like the plain language circuit court, it found that the of Wis. only by applies Stat. 343.303 to PBT results obtained law It the enforcement. concluded that circuit court's proper the PBT decision to result a allow was exercise appeals rejected of discretion. The court of also Rocha- Mayo's argument that the circuit court erred in utiliz- ing instructing Wis JI —Criminal 1185 when the rely that it could on the PBT as of result evidence intoxication the allowed, because instruction but did require, not the to find the that defendant was under the influence an intoxicant at the time of the alleged Finally, operating. appeals the court of found testimony, Rocha-Mayo appeared that Dr. Falco's that intoxicated ER, while not error was because he opinion offered no on state of intoxica- tion at the time of accident. presents

¶ case First, This four issues. prohibits whether Wis. 343.303 Stat. the admission of professional PBTa test obtained result a medical an Second, OWI-related trial. whether circuit court utilizing erred in Wis JI —Criminal 1185 to instruct the jury on Third, its use of the PBT evidence. whether testimony, Rocha-Mayo Dr. Falco's was intoxicated improper while it ER, because a embraced noted, As previously pleaded had guilty to charge operating motor a valid vehicle without license causing person death prior to another his trial. "legal concept instruction was for which a definitional any, Finally, required." error, if circuit court whether harmless. deciding circuit ¶ that the assume without 21. We the PBT result and it admitted court erred when Therefore, we first on that result. instructed allowing erred the circuit court address whether parties' testimony. to the We then turn Dr. Falco's arguments. harmless error

II. Standard of Review prior ¶ admission of evi- court's 22. We review stan- exercise of discretion dence under the erroneous 570, 2d Doss, 93, 19, 312 Wis. dard. v. 2008 WI State not overturn 150. That means we will 754 N.W.2d prior clear unless there is a court's determination having showing in an been exercised of such discretion proper of discretion Id. "A exercise erroneous manner. rely requires record, facts of circuit court on that the using applicable and, a demonstrable rational law, process, decision." Id. reach a reasonable analysis requires us to error 23. Our harmless question affected the the error in determine whether jury's 29, Weed, 85, 263 v. 2003 WI verdict. State Therefore, ask, "Is it we 434, 2d 666 N.W.2d Wis. beyond a rational doubt that clear a reasonable guilty absent defendant have found the would Harvey, ¶ 46, 254 Wis. 2d 93, v. WI error?" State (quoting U.S., 1, v. 527 U.S. Neder 442, 647 N.W.2d189 (1999)). Analysis

III. Admissibility Testimony A. of Dr. Falco's Rocha-Mayo argues that the circuit court objection, when, erred his to over it allowed Dr. Falco testify expert opinion, Rocha-Mayo that, in his was intoxicated time at the he was treated in the ER. Rocha-Mayo's argument testimony Dr. is that Falco's improper legal concept was because it "embraced a for required." which definitional instruction was legal concept Rocha-Mayo to which refers is the defini- tion of "under influence intoxicant," of an which was charge by one element of the of homicide intoxicated charge, use of a As to vehicle. this the circuit court jury, instructed the "The third element is the defendant under was the influence of an at intoxicant the time the operated a vehicle. 'Under the an influence of defendant ability operate intoxicant' means the defendant's to materially impaired consump- a vehicle was because of added.) beverage." (Emphasis tion of an alcoholic argues ¶ contrast, 25. In the State that Dr. Falco opinion any Rocha-Mayo's never offered as to condition level or of intoxication at of the the time accident. points specifically fact, the State out that Dr. Falco any judgment testified that he could not make as to at blood alcohol content the time he operated ability operate his vehicle or his a vehicle. § governs "opinion 26. Wisconsin Stat. 907.04 "[tjestimony states, on ultimate It issue." the form of opinion an or inference otherwise admissible is not objectionable it because embraces an ultimate issue § be decided parties agree trier fact." Wis. Stat. 907.04. Both testimony permissible that Dr. Falco's was Rocha-Mayo argues § However, 907.04. under Wis. Stat. allowing erred in Dr. Falco to the circuit court that testify regard to his level of intoxication because "under the influence of an instruction for definitional required. intoxicant" was explained appeals that the The court of has 27. cannot described in Wis. Stat. 907.04

"ultimate issue" legal concept for which the needs "be one that is a Roth, v. 157 Wis. 2d instructions." Lievrouw definitional (1990). 351-52, 459 N.W.2d850 332, testimony that Dr. Falco's Here, we conclude complies Lievrouw. Stat. 907.04 and with both Wis. at stake was whether This is because the ultimate issue Rocha-Mayo the collision. intoxicated at the time of significant part the defense was that Furthermore, a driving, if was intoxicated while even regardless of that fact.10 have occurred accident would testimony permissible be- 29. Dr. Falco's was ultimate whether it did not embrace the issue: cause Rocha-Mayo the time of the accident. was intoxicated at only testimony previously related noted, Dr. Falco's As intoxicated while that was to his belief undergoing Furthermore, in the ER. treatment Rocha-Mayo's any opinion give as to Dr. Falco did not safely. ability fact, on cross- vehicle to drive his specifically Rocha-Mayo's asked counsel examination Rocha-Mayo's opine level of Dr. Falco if he could on explain- accident. After intoxication at the time of the 1185, addresses previously, Wis JI —Criminal As we noted Under of a Vehicle While charge Operation the of "Homicide told, jury the "Wis the Influence." From this instruction crime if the death provides that it is a defense to this consin law exercising had been have occurred even if the defendant would the influence of an intoxicant." due care and had not been under Wis JI —Criminal 1185.

ing Rocha-Mayo's night that blood alcohol level on the depending of the accident would have fluctuated on the body rate his alcohol, metabolized the Dr. Falco re- sponded, "I Therefore, cannot." we conclude that the appropriately circuit court acted within its discretion testify when it allowed Dr. Falco to about being state of intoxication while he was treated in the ER.

B. Harmless Error Rocha-Mayo argues any circuit court error related to PBT evidence or the instruction to jury regarding the PBT results cannot be harmless disagree. deciding error. We While we assume without that admission of the PBT result and the instruc- tion at error, issue was we conclude that these errors beyond were harmless a reasonable doubt. In other words, we conclude that admission of PBT result regard and the use of Wisconsin JI —Criminal 1185, in jury's to the PBT evidence, did not affect the verdict. It beyond is clear a reasonable doubt that the would guilty alleged have found the defendant absent the errors. precedent, 31. Under Wisconsin statutes and analysis applicable

harmless error is to this case. Wis- 805.18(2) provides, consin Stat. judgment

No shall be reversed or set aside or new trial granted in any action or proceeding on ground improper admission evidence . . . unless in of... the opinion of the court application to which the is made, after an examination of the entire action or proceeding, appear it shall that the error complained has affected the substantial rights party of the seeking to reverse or judgment, set aside the or to secure a new trial.

98 added.) § specifi- Although (Emphasis 805.18 Wis. Stat. applicable procedure, cally applies this statute is to civil through proceedings Wis. Stat. criminal 972.11(1).11Harvey, § ¶ 442, 2d 39. 254 Wis. applica- Harvey,

¶ court addressed the In this 32. analysis in the context of a of harmless error tion doing jury challenged Id., ¶ so, 6. In we instruction. heavily Id., ¶¶ Neder, 1. 35-46. 527 U.S. relied on considering language also 805.18, Stat. we of Wis. conducting following question harm- when relied on the beyond analysis: a reasonable it clear "Is less error jury found the defen- a rational would have doubt that Harvey, guilty 442, 254 Wis. 2d the error?" dant absent 18). (quoting Neder, ¶ 527 U.S. at following year again guidance ¶ found The we 33. discussing Harvey error harmless and Neder from alleged analysis an confrontation in the context of doing ¶ Weed, 434, 2d 29. In 263 Wis. clause violation. again forth error test set relied on the harmless so, we 44). (citing Harvey, Harvey. 442, 2d 254 Wis. Id. deciding, Assuming, circuit that the without 34. PBT result of the it allowed admission court erred when corresponding jury instruction, we conclude and the alleged This is because errors harmless. that such were ample that Rocha- to conclude heard evidence Mayo time of the accident. intoxicated at the necessarily speed indica- First, is not while multiple wit- heard from intoxication, the tive of Rocha-Mayo and the mo- all testified nesses who 972.11(1) provides, Stat. portion of Wis. applicable (2) (4), rules of evidence "Except provided as subs. in all criminal applicable be in civil actions shall practice manifestly rule of a section or proceedings unless the context (2)-(4) are not Subsections construction." requires a different applicable to this case.

torcyclists driving recklessly traveling high were and at speed. consistently rates of Witnesses estimated that travelling mph vehicles were between 70 and 80 along point patrol 52nd Street. At the where a officer posted speed observed the vehicles, the limit on 52nd mph. Street was 30 jury In addition, heard evidence of

Rocha-Mayo's level of intoxication. First, the heard Rocha-Mayo's police statement to in which he admitted drinking p.m. three at beers his home between 7 p.m. provided His statement also that he arrived at El p.m. Rodeo around 9 and that he consumed an addi- purchasing six-packs tional six beers before two of beer testimony from the bar as he left. His statement and his partially at trial was that he carried a consumed bottle of beer to driving his car and finished that beer while Rocha-Mayo's his vehicle.12 statements were confirmed part by police officer who testified that he examined Rocha-Mayo's vehicle after the accident. This officer empty unopened found one bottle of beer and five Rocha-Mayo's bottles in vehicle. testimony 37. The also heard from

Dr. Falco and Edwards who both attended to Rocha- Mayo Rocha-Mayo in the ER. told Dr. Falco that he had drinking immediately prior been alcohol to the colli- they sion. Dr. Falco and Edwards both testified that could smell alcohol on breath. In addi- tion, Dr. Falco that, testified based on his observations

12Rocha-Mayo testified that the beer he finished in his car part was of the estimated five or six beers that he consumed at the bar. experience, intoxicated while un-

dergoing ER.13 treatment Rocha-Mayo's in- to other evidence 38. Due beyond doubt, conclude, a reasonable toxication, we jury PBT and the related of the result that admission jury's Therefore, the verdict. did not affect instruction deciding, assuming, of the PBT that admission without corresponding jury instruction use of the and evidence alleged those errors were error, we conclude that were beyond reasonable doubt. harmless

IV Conclusion by should be resolved This case can and analysis. application assume, We a harmless error of deciding, it court erred when that the circuit without evidence, the PBT result admit, as the State to allowed pur- diagnostic professional for a medical obtained deciding, poses. that Likewise, assume, without we in utiliz- circumstances erred under these circuit court jury ing on its 1185 to instruct JI —Criminal Wis however, that the conclude, PBT evidence. We use of the appropriate it discretion when exercise circuit court did testify that, based on his observa- Dr. Falco to allowed Rocha-Mayo experience, was intoxi- medical tions and agree undergoing ER. We treatment cated while legal concept "[t]he appeals at that court of with the Rocha-Mayo under the influence was issue was whether operated the motor the time he an intoxicant at of that El owner testified she previously, noted Rodeo's As beverages to Rocha- serving selling or alcoholic could not recall night that admitted, however, memory that her of Mayo. She poor. only testimony

vehicle."14 Dr. Falco's related to his Rocha-Mayo in ER, observations of and he did not Rocha-Mayo's testify driving ability night about on the specifically fact, of the accident. Dr. Falco testified any give Rocha-Mayo's that he could not indication of at the of level intoxication time the accident. deciding, Although we assume, without admitting the circuit court erred in the PBT result as instructing regard evidence to the alleged PBT, we conclude that these harm- errors were beyond a less reasonable doubt. Even without the PBT evidence, the heard evidence level Rocha-Mayo of intoxication from witnesses and from himself. admitted that he consumed two or beers three at home and an additional five or six beers just drinking at a bar that he was alcohol in car his prior to the Dr. Falco and Edwards, collision. Steven an they nurse, ER testified that could smell alcohol on Finally, in the ER. breath Dr. Falco Rocha-Mayo appeared testified that to be intoxicated being in while treated conclude, ER. We therefore beyond any by a doubt, reasonable that error the circuit court did not contribute to the verdict.

By appeals the Court. The decision of the court of is affirmed. (con

¶ 41. ANNETTE ZIEGLER, KINGSLAND J. curring). join majority opinion. I I concur and write separately go majority opinion to further than the language § plain conclude that the "expressly of Wis. Stat. 343.303 preliminary bars" admission of breath test ("PBT") operating results in trials which involve a motor vehicle under influence of an intoxicant 14 Rocha-Mayo, v. State 2011AP2548-CR, unpublished No. (Wis. 2013). slip op., App. 24, 15 Apr. ¶ Ct.

102 ("OWI").1 Fischer, 4, 6, 2010 WI 322 See State v. In Fischer the court stated 265, 778 2d N.W.2d Wis. policy regarding legislature's decision the absolute "the inadmissibility circum of the PBT results under these simply Id., I not be clearer." 25. wrote could stances separately issue, in Fischer, at and concur the case of PBT results that, law, I as a matter conclude because purpose of for the reliable nor admissible are neither specific proving or alcohol defendant's intoxication a an element of the crime when either is concentration charged. precedent in it indeed true 42. While is PBT results that under some circumstances

structs us approve may admissible, those do not deemed cases be proof of PBT results as of intoxication of the admission specific those factors alcohol concentration when or a Doerr, 229 See State v. are an element the crime.2 1999) (Ct. App. 616, 622-25, 2d 599 N.W.2d Wis. part: provides, in relevant Wisconsin Stat. 343.303 preliminary screening he test shall not The result of breath any except probable proceeding or to show admissible action arrest, challenged, prove that a or to for an if the arrest is cause properly required requested person under or of a chemical test was 343.305(3). s. guilty of homi example, to find For order vehicle, contrary Wis. Stat. use a motor cide intoxicated 940.09(1) (a) (b), prove beyond a reasonable or the State had (2) (1) vehicle, the death operated he a motor caused doubt that (3) vehicle, and was either by operation of that motor of another or had alcohol prohibited influence of an intoxicant under the vehicle. operated at the he or she the motor time concentration of more than alcohol concentration "[A]n Wis JI —Criminal 1189. of than evidence on the issue less 0.08 is relevant 0.04 but intoxication," 885.235(1g)(b), concen § Wis. and "an alcohol Stat. the defen facie evidence" that prima of 0.08 or more is tration 885.235(1g)(c). intoxicant, § under the of an dant was influence 103 (agreeing the circuit court that PBT results with were evaluating at trial admissible to assist charges battery of defendant's to a law enforcement 940.20(2) § officer in of Stat. violation Wis. and resist 946.41); ing an officer violation of Wis. Stat. State v. (Ct. Beaver, 969-71, Wis. 2d 959, 512 N.W.2d 254 1994) App. (concluding may PBT that be results admis comprehen sible at trial as evidence of defendant's rights ability intelligently sion of Miranda or his his them).3 waive legislature

¶ Thus, 43. I that conclude has spoken and PBT are results not admissible for the purpose confirming dispelling or intoxication or a specific alcohol concentration when these consider- Accordingly, ations are element an of the crime. I would conclude and decide that the PBT results were inadmis- sible as a matter of law. foregoing respectfully 44. For the reasons, I

concur. am I authorized to state that PA- Justices DRAKE

TIENCE ROGGENSACK and MICHAEL J. join GABLEMAN this concurrence. (dissent-

¶ 46. SHIRLEY S. ABRAHAMSON, C.J. ing). agree I with Justice Prosser's that dissent it was error for the circuit court to admit the results of the

3 recognize I that PBT results are considered admissible at a probable hearing. 343.303; Faust, cause Stat. Wis. State v. 99, 26, 183, 2004 WI 274 Wis. 2d PBT N.W.2d 371. results are prior also utilized as a tool" "screening Cnty. to arrest. See Renz, (1999). 293, 313, v. 231 Wis. 2d 603 N.W.2d 541 Jefferson PBT, however, Unlike the Intoxilyzer provides for chemical testing subject is safeguards certain so to ensure reliability. (PBT)1 preliminary test as evidence breath defendant's court to use the error for the circuit that it was join dis- I Justice Prosser's instruction.2 modified sent. majority opinion that the ad-

¶ assumes 47. The jury instruction PBT and modified of the mission erroneous.3 were agrees Ziegler's with

¶ concurrence 48. Justice majority opinion PBT of the the admission error. But the concurrence assumed to be results can be concluding goes of the that the introduction further, were erroneous; "the PBT results indeed PBT was ¶ Concurrence, 43.4 matter of law." as a inadmissible Ziegler's Justice is consistent with This concurrence Fischer, 6, 37, 322 2010 WI in State v. concurrence a that "as 629, which states 265, 2d 778 N.W.2d Wis. nor are neither reliable PBT results matter of law confirming dispelling purpose or admissible for the specific alcohol concentration." defendant's justices Ann Brad- Walsh Roggensack, Thus six 49. —Justice ley, Prosser, Justice Patience David Justice Ziegler, Kingsland Michael Justice Annette Justice agree court erred that the circuit Gableman, and I— present admitting in the case. PBT results (joined by majority opinion Zie- Justice 50. gler) harmless.5 errors to be declares the assumed that the concludes Prosser's dissent contrast, Justice Once not harmless.6 case were in the instant errors 1 dissent, 96-111. Prosser's ¶¶ Justice 2 dissent, 112-118. Prosser's ¶¶ Justice 3 4. Majority op., ¶ 4 dissent, (quoting Justice 97¶ Justice Prosser's See also concurrence). Ziegler's Majority op., ¶ dissent, 119-134. Prosser's ¶¶ Justice

again agree I The PBT with dissent. results erroneous instruction central to the were prosecution's prejudicial. case; the errors were separately, highlight however, I 51. write to an namely expert error, the additional admission of the testimony of Dr. William Falco. doctor was allowed give expert opinion to an the that defendant was emergency "intoxicated" when he was in the Such room. testimony by jurisprudence regarding is barred our the testimony expert opinion of limits beyond prove ¶ 52. The did State not have to a reasonable doubt that the defendant was "intoxicated." beyond prove Rather, the State had to a reasonable doubt the that defendant was "under the influence of an operating intoxicant" while the vehicle.7 ¶ 53. "Under the influence of an is intoxicant" a 939.22(42) legal § of art term defined Wis. Stat. ability operate mean "the actor's materially impaired a vehicle ... is consumption

because of his or her beverage of an alcoholic . . . ." legal ¶ 54. The definition of "under the influence necessarily of an intoxicant" is not the same as a purposes doctor's use of the word "intoxicated" for of determining proper diagnosis medical or treatment a hospital, usage or the as same the common the word of "intoxicated." I now turn to the Wisconsin rules evi- governing expert opinion testimony.

dence provides Stat. Wisconsin 907.04 as follows: 7 940.09(1)(a) (defining See Wis. Stat. the crime "caus [ing] by handling the death of operation another or of a intoxicant"). vehicle while under the influence of an

106 or inference Testimony opinion in the form of an objectionable not because it otherwise admissible is by an ultimate issue to be decided the trier of embraces fact.8 8 907.04, §to The 1974 Judicial Council Committee's Note R211, Evidence, Rules of 59 Wis. 2d states that the

Wisconsin Dohner, 111, with Rabata v. 45 Wis. 2d rule is consistent (1969). Rabata, The court declared in 45 Wis. 2d at N.W.2d409 McCormick, (citing Upon T. Some Observations Charles 109, 118, Expert Testimony, 23 Tex. L. Rev. Opinion Rule (1944)), opinion testimony on ultimate issues could be phrased legal if a term of art: barred as court, issue, though banning opinions an ultimate [A] even not on question phrased might properly nevertheless condemn a terms laymen legal on of a criterion which could be misunderstood jury. as, capacity questions X mental Such "Did have sufficient will," negligent," properly X would be con- to make or "Was they rather demned on this basis—that would confuse evidence. than assist it—and be excluded from adopted § 907.04 Federal Rule of Evidence 704 Wis. Stat. verbatim. (b) amended in to add subsection

Federal Rule 704 was 1984 as follows: Opinion

Rule 704. on an Ultimate Issue (a) Automatically Objectionable. opinion An is In General —Not just objectionable it an ultimate issue. not because embraces (b) case, expert Exception. witness must not state In a criminal an opinion did or did not have a an about whether the defendant condition that constitutes an element of the crime mental state or charged or a defense. Those matters are for the trier of fact alone. Rule, Alan For a of the Federal see Charles discussion al., Wright et Federal Practice & Procedure: Evidence (2d § 12 Supp.); ed. 1997 & 1 McCormick On Evidence 2013). (Kenneth ed., Broun 7th ed. S. admissibility governing of evidence For other rules testimony, Wis. Stat. ch. 907. expert opinion see majority opinion acknowledges, 57. As the an

expert give opinion testimony witness cannot on an legal concept jury ultimate issue "that is a for which the although expert needs instructions,"9 definitional may give opinion testimony as to an "ultimate issue to phrase be decided the trier of fact." The "under the legal concept jury influence anof intoxicant" is a and a regarding legal is instructed definition of "under the influence of an intoxicant." majority opinion acknowledges 58. The that the ultimate issue of whether the defendant was "under the influence of an intoxicant" under Wis. Stat. 940.09(1)(a) requiring specific, was one definitional jury instruction. Wisconsin 1185, JI —Criminal which given to the in the instant case,10 defines "under the influence of an intoxicant" for the as follows:

"Under the influence of an intoxicant" means that ability operate defendant's a vehicle was materially impaired because of consumption of an alcoholic bever- age. every person

Not who has consumed alcoholic bever- ages is "under the influence" as that term is used here. What must be established is that person has con- sumed a sufficient amount of alcohol to cause the person to be less able to exercise the clear judgment steady hand necessary to handle and control a motor vehicle.

It required is not impaired ability to operate be by particular demonstrated acts driving. of unsafe 9 Majority op., (citing 26-27 ¶¶ Wis. Stat. 907.04 & Roth, Lievrouw v. (Ct. 332, 351-52, 157 Wis. 2d 459 N.W.2d 850 1990)). App. See majority op., 2. required, person's ability safely is that the What is (footnote materially impaired control the vehicle be omitted). case, In the instant the doctor's testimony sense, term "intoxication" in its medical not used the legal the sense of the term of art "under the influence of an intoxicant" as defined the statutes and the jury Dr. Falco testified that when the defendant instruction. room, entered the in his emergency expert opinion intoxicated. exchange defendant was between the doctor, and the over the defense's prosecutor objection, ensued as follows: Doctor, years you over the 13 where

[PROSECUTOR]: patients had occasion to treat accident that have con- alcohol, you diagnosis sumed were they able to make a whether or not were under the influence of alco- hol? Yes,

[DOCTOR]: several times. you you're qualified [PROSECUTOR]: Do believe to in opinion? this case render that mean, I I I patients [DOCTOR]: do. see intoxicated not pretty daily in accidents much on a basis that I'm— you're looking And [PROSECUTOR]: when at those patients, things you looking what are are at? those symptoms What are the factors? What are the of alcohol intoxication? Well, behavior; know, you their [DOCTOR]: their — breath;

—obviously their their the smell alcohol on speech, clarity speech; you know, they if had of their or, eyes; ability you redness to their know, their to ambulate steady gait, things like that. walk with treatment, upon your And based [PROSECUTOR]: your practice an experience based on and medical as emergency physician, your room and contact and ex- patient, amination of [the assessment this defen- dant], you opinion sobriety? do have an as to his state of I [DOCTOR]: do. your opinion? And

[PROSECUTOR]: what is objected [The defense overruled.] [DOCTOR]: I believe he was intoxicated at the time. you opinion [PROSECUTOR]: And do hold that a to degree reasonable certainty? scientific and medical I do. [DOCTOR]: Expert opinion testimony? Check. Ultimate Requiring

issue in the case? Check. a definitional instruction? Check. majority opinion

¶ 61. Nonetheless, in the permits testimony instant case the doctor's about emergency defendant's intoxication when he entered the room. majority opinion creatively

¶ 62. The but falla- ciously testimony reasons that is admissible be- any opinion [the cause the doctor "never offered as to defendant's] condition or level of intoxication at the time the accident."11

¶ 63. The State defends the admission of the testimony grounds doctor's on the that the doctor never opinion ability offered an as to whether the defendant's safely materially impaired. control the vehicle was express opinion ¶ 64. True, the doctor did not an about the defendant's intoxication at the time of the ability operate accident or about the defendant's added). Majority op., (emphasis 25¶ ISo, ask, vehicle. what is the relevance of the doctor's expert opinion about the defendant's intoxication in the emergency it room? Is relevant because it enables a testimony to infer from the doctor's that the defendant, hospital, materially at who was intoxicated the had a ability impaired operate a vehicle at the time the accident? It seems to me this must the be unstated permissible? Why rationale. Is this inference No! not? the medical Because doctor's definition of "intoxicated" purposes diagnosis for of medical and treatment at the emergency legal room is different than the definition of "under the influence of an intoxicant." Admitting expert testimony

¶ 65. the doctor's present jury the case leads the to the mistaken belief by that "intoxication" as used a doctor a medical as term legal is the same as the term of art "under the influence of an intoxicant." jury leap can the How make the inferential expert opinion

from the doctor's about intoxication for diagnosis purposes finding medical and treatment beyond a reasonable doubt that the defendant was legal "under the influence of an intoxicant" as a defined element of the crime? testimony

¶ 67. The doctor's therefore not does trier assist the of fact under the relevance-assistance 907.02(1).12 Indeed, standard of Wis. Stat. the doctor's testimony jury. confuses, assists, rather than the 907.02(1) provides: Wisconsin Stat. (1) scientific, technical, specialized knowledge If or other will the trier of fact to or to determine assist understand evidence issue, skill, qualified expert knowledge, a fact in a witness as an education, experience, training, may testify or in the thereto form otherwise, opinion testimony upon if of an or is based sufficient data, testimony product principles

facts or is the of reliable methods, applied principles and the witness has methods reliably to the facts the case.

Ill confusion, 68. To avoid the rules of evi- against dence and the militate case law admission of testimony expert legal concepts on or terms of art. Analyzing law, our case Professor Blinka's treatise wisely weighing expert advises that when whether testimony legal phrased in terms of standards is admis- prime concept sible, "a consideration is whether the peculiarly legal under consideration is a construct or usage."13 one that is also rooted common Roth, Blinka Professor cites Lievrouw v. (Ct. 1990), App. 332, 351-52, Wis. 2d 459 N.W.2d850 as majority opinion.14 does the The Lievrouw court ruled expert opinion may that an witness's not be admissible "legal concept on a for which the needs definitional Lievrouw, instructions." the court determined that a opinion regarding witness's the existence of an "emer gency" "emergency" was admissible because was not jury defined for the and was not a "term of art."15 By admitting expert opinion the doctor's testimony on intoxication, the defendant's the circuit permitted exactly confusing expert court the kind of testimony legal concept on an ultimate that was held inadmissible under Lievrouw.

¶ 71. More can be and has been written on the meaning, application, vitality, continued and nuances of § proper phrasing questions Wis. Stat. 907.04 and the The rules of evidence exclude opinion thus the doctor's present case, only violating § not as Wis. Stat. 907.04 and law, our helpful case but also as not to the trier of fact and as a waste of time. Blinka, Wisconsin Practice Series: Wiscon 7 Daniel D. (3d 2008). sin Evidence 702.603 ed. 14Majority op., (citing 26-27 Wis. Stat. ¶¶ 907.04 Lievrouw, 157 Wis. 2d at 351-52). 15 Lievrouw, 157 Wis. 2d at 351-52. expert comply for the purposes with the rule. For the present of this dissent in the case, I do not write on length. important engage rule at I think it issue, this point problems majority out the with the opinion's discussion, and foster discussion of the rule. foregoing join 72. For the reasons, I Justice separately.

Prosser's dissent and write (dissenting). 73. DAVID T. PROSSER, J. majority opinion present has been constructed to a picture black and white of a reckless defendant. Unfor- tunately, story. there is more to the The facts left out pretty, ugliness helps are explain why not and their County jury Kenosha deliberated hours, about 20 over days, reaching four before a verdict.

¶ 74. When a deliberates for 20 hours on a seemingly simple something case, about the case has troubled them. When a has deliberated for 20 convicting hours before a defendant, facile assurances that critical errors the trial were harmless to that unpersuasive unsettling. defendant can be For the reasons stated below, I believe this defendant should be given Consequently, respectfully a new trial. I dissent.

FACTUAL BACKGROUND ¶ 75. The defendant in case, this Luis M. Rocha- Mayo, years was 19 old at the time of the accident. He immigrant was an undocumented from Mexico whose primary language Spanish required is and who an interpreter throughout proceedings. the criminal many passed knew that months had between the

113 jury's charges of this affected the and the trial.1 None of the case. consideration conscientious ¶ was at his 21, 2008, the defendant 76. On June p.m. family. p.m. apartment and 9 he Between 7 with group p.m., traveled About 9 the consumed three beers. separate at corner of 14th Rodeo, to El a bar in cars in the next five and 52nd Street Kenosha. Over Avenue and ordered defendant consumed five beers hours, the partially and took consumed at the bar sixth, he which left at 2 a.m. in his car when he with him finish p.m. 21 2 a.m. on June Thus, 77. between 7 defendant consumed at June 22—seven hours —the on claimed also that between nine beers. He least he drank and the last six beers some initial three beers drinking dispute; The defendant's is not soda. drinking is. effect of his pulled Rodeo, El he the defendant left 78. When proceeded west, in- onto 52nd Street and

his vehicle apartment tending return to his on 40th Avenue. motorcycles blocks, three entered 52nd Within a few parking Tavern, which has from the lot for Coins Street Street. an address of 1714 52nd story that a The defendant's version of the is (Martin) motorcycle carrying people, Martin two Curtis (Shawna), merged right into the and Shawna Bestwick directly Two lane in front of the defendant's vehicle. immediately motorcycles other then entered street cycles One these was the defendant's vehicle. behind (Bestwick); by the other was driven Travis Bestwick (Walters). was Jason Walters Bestwick driven motorcycle, riding He was Martin's Shawna's brother. $100,000 bond, custody, on from trial, he until the time of received time of his arrest days years on the ten of confinement his bifurcated of credit sentence. riding motorcycle,

and Martin was Bestwick's because cycle carrying pas- Bestwick's was better suited for senger. motorcyclists riding The had been as a

group, apparently Bestwick and Walters became group offended Rocha-Mayo's separated by when members of the were pulled up parallel car. Walters to the alongside car, defendant's yelled the driver's window. He obscenity gestured at with an for him pull over. yelling Martin and Shawna heard the behind them and then turned off on 25th Avenue in a up maneuver that enabled them to end behind the motorcycles. defendant's car with the other The part defendant's brief reads in as follows: point, At Mayo testified, this Rocha he sensed Walters and group his were looking for trouble and the situation felt threatening. Realizing he now had three cycles him, around and believing them all in a mood to him, harm Mayo Rocha did pull not over as Walters Instead, demanded. he home, resolved to continue required which he remain on 52nd Street and turn right at 40th Avenue. He therefore continued west- bound at the approximate limit, speed just hoping to get home. pulled 81. Walters back behind jacket expandable

car. He reached into his for an metal open right baton and flicked it with the wrist of his hand. He then accelerated his bike to the left of the defendant's car and launched the metal baton at the traveling high car's rear speed. window while at The baton shattered the rear window the car and landed passenger's on the floor in front of the seat. Glass fragments throughout flew the car. Bestwick followed past Walters the defendant's car. The defendant's brief explains: premonition of Mayo's perspective, his

From Rocha reality his rear suddenly a rude when danger became cycles by him on the two roared exploded as window momentarily Mayo Rocha explosion caused left. get hit. going he to he convinced was duck and was wits, instinctively he accelerated regained he his When him, in addition to cycle was behind because another him, and he was scared. cycles now in front the two Although from the rear. still He feared another assault and near 30th 33rd right in the lane and somewhere so Avenues, not to turn off on 40th Avenue he resolved he lived. cyclists not learn where the would Roeha- baton shattered 82. After Walters' in window, motorcycles and the two Rocha-Mayo Mayo's Street at on 52nd of him westward speeded front motorcycle third hour. The per 70 miles approximately blocks, then turned off on 39th for several followed testified, however, that he contin- Rocha-Mayo Avenue. by cycle, the third being pursued ued to believe he was of him and cycles he had two ahead thought so that he did not down to noted, him. As he slow one behind cycle he was Avenue, because allegedly turn off on 40th apartment. he be followed to his afraid would three "race" with the vehicles ostensible until for more than 20 blocks on 52nd Street continued Bay the intersection with Green the came to vehicles reads as follows: Road. The defendant's brief intersection, stop approached the vehicles As The two west- light for traffic was red .... westbound traffic, lanes, first that were also free of widened bound (a lane) and then to dedicated left turn to three lanes lane). (a right ... dedicated turn four lanes shorter cycle Mayo he had a third behind Rocha believed still him.. . . intersection, Bestwick neared the As vehicles (but Walters, signals hand unbeknownst via Mayo), attempt right

Rocha decided to turn onto Road, North Bay Green a maneuver the State's acci- investigator agreed dent would impossible have heen at speed. Mayo right their was Rocha still hand lane and from his perspective, Walters and Bestwick were off to Suddenly braked, the left in front of him. Walters but realized a would be impossible, turn and wound up sliding stopping into and in the of the middle intersec- Bestwick, however, tion. attempted turn and moved right, directly Mayo's to the vehicle, front of Rocha braking. Mayo while enough Rocha could not react fast striking avoid Bestwick. vehicle collided with motorcycle. Bestwick's Bestwick, who had not been wearing cycle a helmet, was thrown from the eventually died of blunt force trauma to the head. injured crash, was found lying police pain nearby grass, in like Bestwick, and transported hospital. was to a according testimony

¶ 85. Walters, to at trial, the complete stop to a intersection, came in the looked vantage point around from the he where could see both complete lying at a rest, vehicles with Bestwick the Bay street. Walters then took off on southbound Green police approached. a Road as car ¶ 86. Walters called Shawna the accident, about quickly and she and Martin drove to the accident scene. they telling police However, left without their knowl- edge or and involvement waited more than 19 hours contacting they before authorities. When came talk, motorcyclists tragic entirely blamed the events on Rocha-Mayo. motorcyclists oper- Whether had been ating under influence established, was never large part they because absented themselves from au- including motorcyclists, of the None

thorities. any with charged ever Walters, baton-launching offense.2 22, 2008. June Sunday, died on Bestwick 87. with second- charged Rocha-Mayo was day,

following weapon, dangerous a homicide with reckless degree 939.50(3)(d), and 940.06(1), §§ to Wis. Stat. contrary D 939.63(1)(b), felony. a Class on examination a Following preliminary charging an information filed 2, 2008, the State July three offenses: with Rocha-Mayo (1) homicide, a use of reckless with First-degree 940.02(1), §§ contrary to Wis. Stat. weapon, dangerous 939.63(l)(b), felony B instead 939.50(3)(b), a Class and originally charged. felony D the Class (2) use of endangerment, with First-degree reckless 941.30(1), contrary to Wis. Stat. weapon, dangerous a felony. The 939.63(l)(b), a F 939.50(3)(f), Class recklessly "did information asserted Walters, circum- under safety of Jason A. endanger the life." disregard for human utter which show stances (3) causing death license Operating without valid Stat. contrary to Wis. person, another 343.05(5)(b)3d 939.51(3)(a), A a Class misde- §§ meanor. 2009, 11, later, February on months 89. Seven the infor- to amend the circuit court State moved intoxi- of homicide charge to add a fourth

mation Stat. vehicle, to Wis. contrary motor use of a cated 940.09(1)(a) D 939.50(3)(d), felony. a Class §§ important part a rich and Motorcycles have been imply intended to Nothing in this dissent is history. Wisconsin overwhelming number of re of the any criticism whatsoever in this state. operators motorcycle sponsible owners motion Circuit Bruce granted by Judge was Schroeder. motion, District Attorney his Robert wrote: Zapf hearing

At the court on the defendant's motion to adjourn date, inquired the trial the Court whether the intending pursue any State was alcohol related time, charges. At that this writer advised the Court I think performed by that did not the BAC test However, hospital your be would admissible. affiant has origi- all of the evidence and reviewed reconsidered its position. nal 90. Rocha-Mayo successfully thereafter moved

Judge Schroeder to recuse himself from the case. Judge III Wilbur W Warren to the case. assigned closely 91. The facts stated above follow the obviously defendant's brief and the defendant's convey however, on some of the facts. perspective Significantly, the State did Rather, not rewrite the statement of facts. the State said:

Rocha-Mayo's largely statement of facts consists itself, facts about the criminal incident from the view- point most favorable to him. Because the criminal directly legal incident are not pertinent facts to the issues, present the State will not a counter statement of so, By declining criminal incident facts. to do the State any way agree does not in intend to with partisan presentation pre- of the facts. The evidence sented, light viewed in the most favorable to the State conviction, it prove as must be after was sufficient to Rocha-Mayo guilty beyond a reasonable doubt. above, 92. The facts presented large part

from the defendant's are to the perspective, damaging defendant. they suggest possibility But also death but tragic Bestwick's would not have happened motorcy- for actions initiated Walters and the other Rocha-Mayo's explanation day clists. This was from the throughout of his arrest and his defense the trial. It position Consequently, underlies his presented now. the issues integrally in this are review related to the specific Rocha-Mayo charged felonies with which was specific leading up convicted, and the facts to presented by death. If Bestwick's the issues the defen- very, very dant trial, reveal errors it is difficult to assert these errors did not "contribute" to the verdict.

ADMISSIBILITY OF THE PBT RESULT Rocha-Mayo ¶ 93. states his first issue as follows: testing regimen "whether Wisconsin's breath allows the present State to evidence of a PBT result an OWI prosecution quantitatively prove to the defendant was simply intoxicant, under the influence of an because the by PBT was not administered law enforcement." Following Rocha-Mayo accident, was emergency taken to the room at St. Catherine's Medical Rocha-Mayo Center. The State's brief states that strapped lips to a backboard and had swollen and blood face; on his he was confused and emitted an obvious goes odor of alcohol. The State's brief on to describe emergency Dr. Falco, how William room doctor, immediately emergency almost ordered nurse, room try Edwards, Steven to do a breath alcohol test to Mayo's determine whether Rocha confusion was caused injury a head or alcohol. The defendant's brief states, complied, Mayo "Nurse Edwards Rocha consented cooperated, and a PBT test result of 0.086 was taken. It single sample was a test." sup- 95. Prior trial, moved to

press hospital the result of the PBT obtained at the emergency Rocha-Mayo argued room. that the result of inadmissible under Wis. Stat. 343.303. the test was hearing, disagreed the circuit court and admit- After a ted the test result at trial. admissibility of the PBT 96. This issue—the involving offenses, traffic-related in-

result in a trial cluding by a homicide intoxicated use of motor surely the reason the court took this case. vehicle—is prepared say Significantly, court is no one on the correctly circuit court admitted the evidence. the Fischer, ¶ ¶ 6, 4, In State v. 2010 WI 97. unanimously 629, the court 265, Wis. 2d 778 N.W.2d expressly PBT held that Stat. 343.303 bars "Wisconsin joining opinion, After the Justice results OWI cases." Ziegler stating, "I that as a matter concurred, conclude PBT results are neither reliable nor admissible of law confirming dispelling purpose or a defendant's for the of specific trial." concentration an OWI or PAC alcohol concurring, joined by (Ziegler, Id., ¶ Justices J, Gableman). Roggensack and present

¶ case, 98. In her concurrence the legislature spoken Ziegler has Justice adds that "the purpose for the and PBT results are not admissible confirming specific dispelling or a alco- or intoxication an when these considerations are hol concentration ¶ Concurrence, the crime." 43. element of majority Against background, ¶ none- 99. this by assuming, willing to decide the case theless is deciding, it circuit court erred when "that the without evidence, the PBT result admit, the State to as allowed diagnostic pur- professional for obtained a medical affirming majority op., poses," Rocha- 4, and then Mayo's the basis of harmless error. convictions on assuming case, error rather than this ducking deciding a error has the unfortunate effect of vital issue that should be decided and burying reasons for an "inadmissibility" ruling. 101. Wisconsin Stat. 343.303 reads as follows:

Preliminary If screening breath test. a law enforce- probable ment officer has cause to believe that 346.63(1) (2m) person violating is or has violated s. or therewith, a conformity or 346.63(2) local ordinance in or s. (6) or or 940.25 or s. 940.09 where the offense vehicle, involved the use of a or if the any officer detects presence alcohol, substance, a controlled controlled analog substance drug, or other or a combination thereof, person driving on a operating duty or or on respect time with to a commercial motor vehicle or has person reason to believe that the violating is or has 346.63(7) violated s. or a local conformity ordinance in therewith, officer, arrest, prior may request to an person provide sample of his or her breath for preliminary a screening using breath test a device approved by the department purpose. for this The preliminary result of this screening may breath test be used the law enforcement purpose officer for the of deciding person whether or not the shall be arrested for (5) (7) 346.63(1), (2m), a violation of s. or or a local 346.63(2) conformity therewith, ordinance in or s. or 940.09(1) (6), or 940.25 and require whether or not to request or chemical tests as authorized under s. 343.305(3). The preliminary result of the breath screening test shall not any be admissible in action or proceeding except probable to arrest, show cause for an if the challenged, prove arrest is or to that a chemical test properly required requested or person of a 343.305(3). under Following test, s. screening addi- may tional required requested tests be or of driver 343.305(3). under general s. The penalty provision 939.61(1) under s. apply does not to a refusal take a preliminary screening breath test. important in The most sentence this sec- screening preliminary breath is: "The result of the

tion any proceeding admissible in action or test shall not be except probable if arrest, for an the arrest to show cause challenged, prove that a chemical test was is properly or person

required requested of a under s. or added). 343.305(3)." (emphasis Id. "Preliminary § 343.303 is 103. The title phrase "preliminary screening breath test."

breath appears screening four times the text of the test" among "prelimi- key the four words is section. The word wholly nary," and that word is consistent with may required expectation that "additional tests be or 343.305(3)." requested Id. of the driver under s. § Stat. 343.305 is entitled "Tests 104. Wisconsin suspension intoxication; and court- for administrative outlines the tests for revocation." This section ordered in traffic- are admissible evidence intoxication that 343.305(5)(d) prosecutions. Stat. related Wisconsin part: provides in in accordance with results of a test administered

[T]he on the issue of whether the this section are admissible an intoxicant... to a person was under the influence of incapable safely him driv- degree which renders ... person's alcohol ing any relating or issue to the ... given effect Test results shall be concentration. required under s. 885.235.3 person's taking sample include of the

These tests 885.235(1g) part: Stat. reads Wisconsin prove any proceeding in which it is material to action or person of an intoxicant. . . evidence that a was under the influence breath, person's in the is admissible on of the amount of alcohol of an intoxi- he . . . was under the influence the issue of whether specified prohibited concentration or a cant or had a alcohol sample after if the was taken within 3 hours alcohol concentration "techniques breath, consistent with the or methods of performing analysis breath" chemical of the set out in 343.305(6)(b) (c). § Wis. Stat. and Department Transportation's ¶ 105. The of (DOT) required rules, statute, administrative as Wis. 343.305(6)(b), § spell approved Stat. out in the detail techniques performing analy and methods for chemical § sis of the breath. See Wis. Admin. Code TRANS (Mar. 2012). Rocha-Mayo's argument 311.06 Much of hospital seeks to the at show test taken the emergency room, result of which was admitted at satisfy requirements trial, did not set out in statute thereby rendering only rules, not result inad missible but also unreliable.

¶ 106. The distinction breath between tests ad- 343.305(5)(d) § missible under Stat. Wis. Wis. Stat. § 885.235 and PBTs under inadmissible Wis. Stat. § highlighted 343.303 is in Wis. Admin Code TRANS distinguishes section, definition which analysis" "Quantitative "Qualitative breath alcohol from analysis." breath alcohol " analysis' 'Qualitative breath alcohol person's

means a breath, test of a the results of which presence indicate the or absence alcohol." Wis. 311.03(12) (Mar. 2012)." Admin. Code TRANS 'Quan- analysis' titative breath alcohol a means chemical test person's yields specific of a breath which result in grams per of alcohol 210 liters of breath." Wis. Admin. proved. analysis given

the event to be The chemical shall be effect requiring any testimony expert as follows without as to its effect: (c) analysis person The fact that the shows that had an prima alcohol concentration of 0.08 or more facie is evidence that prima he .. . was under the influence of an intoxicant and is facie . had an evidence that he . . alcohol concentration 0.08 or more. 311.03(13) (Mar. 2012). § TRANS Wisconsin Code 311.06(2) § explains "[tech- TRANS that Admin. Code performing quantitative niques in breath alcohol used designed analysis are shall be those which assure safeguard accuracy, person- detect malfunctions and to added.) (Emphasis equipment." nel and Wisconsin 311.06(5) provides only Admin. Code TRANS qualita- techniques performing "[m]ethods in used analysis approved by shall be the tive breath alcohol added.) (Emphasis department." Hackworthy, testimony trial, 108. at Susan section, of State chief of the chemical test Division explained qualitatives Patrol, DOT, in the that "The are quantitatives are She also PBT and the evidential." iy PBT at testified that the Aleo-Sensor device used Center, Medical is not certified St. Catherine's evidentiary use in Wisconsin courts and that DOT for certify testing not breath devices the DOT does private sector. trial counsel cross-examined

Hackworthy procedures in on various the administra- designed accuracy in to assure test results tive rules required procedures that are to be and to avoid error — part of the followed in "evidential" tests but are not ordinary regimen expert grudg- PBTs. The State's for gen- ingly acknowledged: preliminary "A breath test is jury." erally not allowed in an OWI trial front of She acknowledged response hypothetical ques- further protocols, a breath tions that in the absence of certain satisfy guidelines State Patrol for evi- test would not protocols were not case, dence. In this several of including hospital PBT, an assurance that met in the amount of mouth did not have an unusual drinking accident, alcohol of his recent or because affected both head and his chest. which his up, provides 110. To sum Wis. Stat. 343.303 preliminary screening that a breath test is not admis- any proceeding except sible in action or as authorized by that statute. When court decisions have deviated statutory they only from this directive, have deviated in cases that did not involve traffic enforcement and did require quantitative analysis not a spe- that shows "a grams per cific result in of alcohol 210 liters of breath." 311.03(13) (Mar. 2012). § Wis. Admin. Code TRANS case, this the admission of the PBT result does not fit any plausible exception statutory within to the directive protocols and comes with few of the that assure the integrity reliability of the tests authorized Wis. 343.305(3). § Stat.

¶ regi- 111. Wisconsin Stat. 343.303 creates a encourages cooperation men that a driver's with law enforcement inasmuch as the test result is inadmis- except provided by sible, as statute, and a refusal to strengthens probable take the PBT cause for an Permitting arrest. settings hospital the results of PBTs taken in against hospital patients

to be used later in engender court pa- will distrust between doctors and patients comply tients and create disincentives for requests open with the of their doctors. Once courts safeguards door to use of PBT results without legislative without authorization, evasions of the direc- § commonplace, tive 343.303 will become and the purpose essential of the statute will be thwarted. OF

CORRECTNESS MODIFIED JURY INSTRUCTION 1185 second issue is "whether it was error solely to instruct it find, could based qualitative on a result, test that was in- toxicated at the time of the accident." is, to this majority's response question 113. that the circuit court assume, deciding, without "[W]e JI— utilizing circumstances Wis under these erred on its use of the PBT 1185 to instruct Criminal 4, but the error was harmless evidence," majority op., ¶ Id., doubt. a reasonable beyond in- gave following 114. The circuit court offense the third element of the struction relation to 940.09(l)(a), that namely, under Wis. Stat. charged an intoxicant under the influence of the defendant was a vehicle. operated at the time the defendant the defendant under the The third element is intoxicant at the time the defendant influence of an operated vehicle. influence of an intoxicant" means

"Under the ability operate a vehicle was materi- the defendant's of an alcoholic ally impaired consumption because of beverage. consumed alcoholic every person who has

Not the influence" as that term is used beverages is "under person that the has must be established is here. What to cause the a sufficient amount of alcohol consumed judgment and to able to exercise the clear person be less necessary handle and control a motor steady hand to vehicle. ability operate be required impaired not that

It is driving. by particular acts of unsafe demonstrated ability safely person's required What is is that materially impaired. the vehicle be control concentration in a The law states that the alcohol sample taken within three hours defendant's breath alco- of the defendant's operating a vehicle is evidence operating. the time of the hol concentration at doubt that you beyond If are a reasonable satisfied in 210 liters of grams or more of alcohol there was .08 the defendant's breath taken, at the time the test was you may find that the defendant was under the influ- ence of an alleged intoxicant at the time of the operat- ing, you required You, but are not jury, to do so. are here to question decide this on the basis of all the case, evidence in you this and should not find the defendant was under the influence of an intoxicant at the time alleged of the operating, you unless are satis- beyond fied of that fact a reasonable doubt. 115. The circuit court omitted four words from

the standard instruction when it gave instruction above: namely, "from that fact alone." Normally, the last paragraph of the instruction reads: you

If beyond are satisfied a reasonable doubt that there grams was .08 or more of alcohol in 210 liters of the defendant's breath at taken, the time the test was you may find that alone that the defendant from fact was under the influence anof intoxicant at the time of alleged operating, you but are required not to do so. You the are here to question decide this on the basis of all case, the evidence in you this should not find that the defendant was under the influence of an intoxicant at the time of the alleged operating, unless you are satisfied beyond of that fact a reasonable doubt. Wis JI —Criminal 1185. 116. The wording of the standard instruction

makes clear it is derived from Wis. Stat. § 885.235(lg)(c) is intended to be used for a test authorized Wis. Stat. 343.305(3), not a PBT autho- rized under Wis. Stat. 343.303. Removal of the four words really changes because nothing, the standard instruction never requires the find that defendant was under the influence of an intoxicant. The instruction as written and the instruction as modi- fied both authorize or permit jury to find a defen- a reasonable doubt beyond if it is satisfied guilty dant had .08 or more of alcohol grams that the defendant was taken. breath at the time the test 210 liters of his instruction, "The law states that all, to quote After breath in a defendant's the alcohol concentration of a vehicle operating taken within three hours sample at of the defendant's alcohol concentration is evidence and the test result was .086. operating," the time of the instruction Immediately following an instruction relation to above, the court gave cited defense: the defendant's it a defense to this provides law that is

Wisconsin if the have occurred even crime if the death would had not exercising been due care and defendant had intoxicant. influence of an been under the by evi- prove the defendant to The burden is on certainty by you to a reasonable dence which satisfies evidence that this greater weight of the credible defense is established. evidence" is

"By greater weight of the credible which, weighed against when meant evidence it, convincing power. "Credible opposed to has more reason and light in the evidence" is evidence which worthy of sense is belief. common relating to the conduct been received Evidence has Any alleged time of the crime. Travis Bestwick at the not exercise due care does by failure Travis Bestwick to charged against to the crime provide a defense itself of the conduct of evidence the defendant. Consider has deciding whether the defendant Bestwick Travis if occurred even that the death would have established an under the influence of had not been the defendant exercising due care. and had been intoxicant you If are certainty by satisfied to a reasonable greater weight of the credible evidence that this de- proved, you fense is find guilty. must the defendant not you If are not satisfied to a certainty by reasonable greater weight of the credible evidence that this proved you defense is beyond are satisfied a rea- sonable doubt that all elements of this offense have proved, you been should find the guilty. defendant you If are beyond not satisfied a reasonable doubt that all elements of this proved, you offense have been must find the defendant guilty. not anything ¶ 118. More than else the court's jury, paragraphs instructions to the these relate to Rocha-Mayo's explanation and defense of his conduct. quoted paragraphs immediately But the followed a potent given. instruction that should not have been

HARMLESS ERROR majority ¶ 119. The assumes, if even it does not concede, two critical errors in trial. It beyond dismisses these errors as harmless a reasonable by pointing doubt to evidence sufficient to sustain the defendant's conviction.

¶ Martin, ¶ State v. 2012 96, WI 45, 343 repeated 2d 278, Wis. 816 270, N.W.2d this court classic test for harmless error: whether it is "clear beyond a reasonable doubt that a rational would guilty have found the defendant absent the error." Id. (quoting Harvey, State v. 93, 2002 WI 49, 254 Wis. 2d 189). 442, 647 N.W.2d But the court added valuable commentary: way,

Framed a different an "error is if harmless beneficiary proves of the error 'beyond a reasonable

130 did complained not contribute to doubt that error 47, Mayo, 78, obtained.'" State v. 2007 WI the verdict 642, (quoting 2d 115 State v. Wis. 734 N.W.2d 301 Anderson, 114, 77, 673, 2d WI Wis. 74). satisfied, Therefore, this court must be N.W.2d doubt, jury not that the could have beyond a reasonable (i.e., the defendant sufficient evidence existed convicted defendant), Weed, 86, the v. to convict State 2003 WI 485, 28, 434, 2d 263 Wis. 666 N.W.2d but rather that ¶ at the same had the jury the would have arrived verdict 442, Harvey, 254 2d error not occurred. See Wis. ¶ States, 1, [Neder 527 U.S. (quoting v. United (1999)]). omitted). (citation

Id. ¶ factors 121. court went on cite several analysis is a court's of whether an error that assist impor- ¶ Id., factors "the harmless. 46. These include erroneously the admitted and "the tance of evidence" nature of the defense." Id. It hard for this to contend 122. would be writer defendant not have been convicted

that the would something of his role should not have been convicted for the issue, however, death. The is whether Bestwick's jury the have at the same verdict on all would arrived charged not had the errors occurred. offenses Kenosha 123. It must be remembered that the County Attorney charge District did not 940.09(1)(a) (homicide by of with a violation Wis. Stat. vehicle) many until after intoxicated use months did not authorized the accident because he an have thought he PBT result was test, breath or blood the encouraged If he not been to file this inadmissible. had charge implication that the PBT result would with charge might at all. admitted, he never have filed the be ¶ 124. If the had not admitted, test result been jury any would have had not numerical evidence of the amount of alcohol the defendant's If breath. likely admitted, test result had been not the court disputed portion would not have read the Wis JI— if 1185, Criminal even a homicide intoxicated use of charge a vehicle been had filed. Erroneously admitting the PBT result as

legitimate gave support evidence scientific Dr. to Will- opinion testimony iam Falco's that the defendant was testimony, intoxicated. This it correct whether was or powerful incorrect, would have been less much absent the PBT result. only short, to assert not

could have convicted defendant of Wis. Stat. 940.09(1)(a) but also that the would have con beyond victed the defendant of that a reason offense— able the doubt—without inadmissible PBT result and persuasive the mistaken instruction —is not because it greatly having undervalues the effect of a chemical test of the breath, defendant's or blood, urine as evidence in prosecution. a criminal may

¶ 127. But the effect of two the errors have greater. been even Rocha-Mayo recognized legal had a defense charge operation

to the of homicide aof motor vehicle while under the influence—a defense alluded to Judge jury in Warren's instructions. He did not have an equivalent legal charges to the Wis. under Stat. defense §§ Nonetheless, 940.02 and 941.30. did attacking have an avenue for the element "circum- of disregard stances that show utter for human life" in both offenses. instructions Wis. for Stat. §§ following 940.02 and 941.30 both contain the lan- guage:

132 of the the circumstances determining whether life, disregard for human con- utter conduct showed doing; why the defendant was factors: what sider these conduct; how dan- engaged in that the defendant was; was; danger conduct how obvious gerous the life; and, any regard for showed the conduct whether relating to the con- and circumstances all other facts duct. added) (foot- (emphasis 1020, 1345

Wis JI —Criminal omitted). note 1020 for to Wis JI —Criminal 129. The comment

first-degree "All circum observes, reckless homicide relating conduct should be the defendant's to stances determining shows that conduct whether considered disregard' circumstances for human life. These 'utter possible provocation relating facts to would include of continues: "Evidence defendant." The comment of the prosecutions usually provocation be admissible will (and, requiring . . . criminal recklessness for crimes prosecutions circum section, whether the under this life)." disregard human Com for stances show utter (quoting Council 1020 Judicial ment, JI — Criminal Wis 191). language is 940.02, S.B. Similar to Note re to Wis JI —Criminal found in the Comment safety. recklessly endangering first-degree lated to Jury invited Instruction 130. Wisconsin guilty operating his find the defendant causing death of under the influence vehicle Any juror who PBT result. of the .086 Bestwick because likely disregard accepted Rocha- invitation was likely Mayo's legal the effect to dismiss defense evaluating of provocation the element an attack on disregard human life." for "utter inadmissible evidence admission of 131. The given faulty because of that was instruction and the critically of admission that inadmissible evidence were felony tied to all three convictions.

¶ 132. The deliberated case rendering days, for 20 hours, about over four before its jurors It verdict. twice advised the court that the were finally many deadlocked. came, When verdicts jurors cried as the read. verdicts were judge ¶ 133. an When admired circuit court in- jury "upon principles you structed the of law which considering are follow in evidence," to he made this duty your statement: "It is to follow all of these instruc- Regardless any opinion you may tions. have about ought you your be, what the law is or must base give you on the verdict law I in these instructions." jury struggled discharge duty. ¶ 134. The It its agonized say over its decision. For the court now to that two critical trial errors at were harmless in their effect deny reality forget purpose on the is to our as reviewing a court.

¶ 135. I Because believe the must defendant be given respectfully trial, new I dissent. I am authorized to state Chief Justice

SHIRLEY S. ABRAHAMSON Justice ANN join WALSH BRADLEY this dissent.

Case Details

Case Name: State v. Luis M. Rocha-Mayo

Court Name: Wisconsin Supreme Court

Date Published: Jul 11, 2014

Citation: 848 N.W.2d 832

Docket Number: 2011AP002548-CR

Court Abbreviation: Wis.