Lead Opinion
¶ 1. This is a review of two published decisions of the court of appeals, State v. Luedtke,
¶ 2. In Luedtke, the Winnebago County District Attorney's Office charged Michael R. Luedtke ("Luedtke") with one count of operating a motor vehicle while under the influence of a controlled substance (diazepam and methadone), seventh, eighth, or ninth offense, contrary to Wis. Stat. § 346.63(l)(a) (2009-10),
¶ 3. Luedtke filed á post-conviction motion arguing that the State violated his due process rights when the Wisconsin State Laboratory of Hygiene ("Laboratory") destroyed his blood sample, in accordance with routine procedures, before he had the opportunity to test it. Luedtke also argued that the charge of operating a motor vehicle with a detectable amount of a restricted controlled substance in the blood is unconstitutional without scienter.
¶ 4. The court of appeals affirmed and concluded (1) that the State did not violate Luedtke's due process rights when the Laboratory destroyed his blood sample in accordance with routine procedures; and (2) that the statute prohibiting operating a motor vehicle with a detectable amount of a restricted controlled substance in the blood is a strict liability offense, and thus does not require scienter. Luedtke,
¶ 5. In Weissinger, the Ozaukee County District Attorney's Office charged Jessica M. Weissinger ("Weissinger") with one count of injury by use of a vehicle with a restricted controlled substance in the blood causing great bodily harm, contrary to Wis. Stat. § 940.25(l)(am),
¶ 6. Two issues are presented for our review. The first, applicable to both parties, is whether the State violated Luedtke
¶ 7. First, based on precedent, we hold that, in the context of evidence preservation and destruction, the Wisconsin Constitution does not provide greater due process protection under Article 1, Section 8, Clause 1
¶ 8. Second, we hold that operating a motor vehicle with a detectable amount of a restricted controlled substance in the blood under Wis. Stat. § 346.63(l)(am) is a strict liability offense that does not require scienter, and is constitutional. We therefore affirm the court of appeals.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A. Michael R. Luedtke
¶ 9. On April 27, 2009, at 2:07 PM in Oshkosh, Wisconsin, Luedtke, driving a Ford Escort belonging to his employer, rear-ended another vehicle, extensively damaging it and injuring its driver. Luedtke stated that he caused the accident when he took his eyes off the road to reach for his cell phone. Police officers arrived at the scene and eyewitnesses told them that Luedtke had stuffed a blue bag-like item into the sewer after the collision. Detective Christopher Guiliani ("Detective Guiliani") searched the sewer and found a blue shirt wrapped around six syringes and a metal spoon. Luedtke later testified that he hid the syringes, but not the spoon, in the sewer in a panic because he thought that they were illegal items. He also testified that he did not know that the items were in the car before the accident.
¶ 10. At the scene, Officer Joseph Framke ("Officer Framke") spoke with Luedtke. Luedtke admitted that he had taken several prescription medications and occasionally used marijuana. Luedtke consented to a search of his vehicle and Officer Framke found, in the driver's side door pocket, three additional syringes and an unlabeled prescription bottle containing powder residue. In his initial interactions with Luedtke, Officer Framke did not notice any significant signs of intoxication
¶ 11. It is undisputed that at 3:28 PM on the day of the accident police conducted a legal blood draw. Prior to the blood draw, Detective Guiliani read Luedtke the "informing the accused"
This law enforcement agency now wants to test one or more samples of your breath, blood or urine to determine the concentration of alcohol or drugs in your system. ... If you take all the requested tests, you may choose to take further tests. You may take the alternative test that this law enforcement agency provides free of charge. You may also have a test conducted by a qualified person of your choice at your expense.
Luedtke declined an alternative test.
I 12. On April 30, 2009, Luedtke's blood sample arrived at the Laboratory, a public health laboratory at the University of Wisconsin that is accredited by the American Board of Forensic Toxicologists and that acts independently from the direction of any law enforcement agency. On May 1, 2009, Advanced Chemist Thomas Neuser ("Neuser") tested Luedtke's blood sample for alcohol. The Laboratory generated a report in May 2009 indicating that Luedtke's blood tested negative for alcohol. The report stated that "Specimen(s) will be retained no longer than six months unless otherwise requested by agency or subject."
¶ 13. On November 18, 2009, the sample underwent a more comprehensive Gas Chromatograph with Mass Selective Detector ("GCMSD") drug panel screen. This test indicated the presence of the anti-depressant venlafaxine, the narcotic methadone, and the anti-anxiety medication diazepam, all within the therapeutic range. The test results also indicated the presence of cocaine, at less than 20 nanograms
¶ 14. The Laboratory mailed copies of both the May 2009 report and November 2009 reports to Luedtke, but he claims that he never received them.
¶ 15. On December 18, 2009, the Winnebago County District Attorney's Office
¶ 16. Luedtke failed to appear at his initial appearance scheduled for January 11, 2010, because he was in custody in Outagamie County. On February 4, 2010, the Laboratory destroyed Luedtke's blood sample. Luedtke claims that he first saw the blood test results at his initial appearance on May 24, 2010.
¶ 17. On December 28, 2010, Luedtke filed a motion to dismiss or to suppress the blood test results on the ground that the Laboratory had destroyed his blood. The circuit court denied Luedtke's motion, finding no evidence of bad faith on the part of the Laboratory. The court suggested that Luedtke inform the jury that he was not given a chance to retest the sample due to its destruction.
¶ 18. On April 17, 2012, the State tried Luedtke before a jury. Luedtke's counsel cross-examined Neuser, who testified that blood testing is not infallible and that the reported value does not always match the target value with an unstable molecule like cocaine, though this discrepancy does not constitute a false positive. Luedtke also cross-examined Officer Framke, who admitted that Luedtke did not display signs of impairment during their initial interactions. Luedtke testified and explained his use of venlafaxine, methadone, and diazepam, and denied any cocaine use. Luedtke also testified that he could not retest his blood sample because the Laboratory destroyed it before he was aware of the results. Further, Luedtke admitted that he hid the syringes, but not the spoon, in the sewer. During his closing argument, Luedtke focused on the Laboratory's destruction of the blood sample. Luedtke did not call an expert witness, object to any jury instructions, or request any additional information be added to the record.
¶ 19. The jury found Luedtke not guilty of count one, operating under the influence of a controlled substance. The jury found Luedtke guilty of count two, operating a motor vehicle with a detectable amount of a restricted controlled substance in the blood. On April 17, 2012, the court entered a judgment of conviction, withheld sentence, and placed Luedtke on probation for a period of four years, with 12 months of conditional jail time, imposed and stayed.
¶ 20. On May 31, 2013, Luedtke filed a post-conviction motion that challenged the admission into evidence of the blood test result and the constitutionality of Wis. Stat. § 346.63(l)(am). He asserted that, even if the court admitted the blood test results into evidence, the jury should have been instructed that they could infer that the sample could have been exculpatory had it not been destroyed. Luedtke also contended that he was denied the effective assistance of counsel. The circuit court denied the motions, concluding that the State did not violate Luedtke's due process rights when the Laboratory destroyed his blood sample. The court also concluded that § 346.63(l)(am) is a constitutional strict liability offense.
¶ 21. On June 11, 2014, the court of appeals affirmed the circuit court's judgment of conviction and order denying postconviction relief. The court of appeals concluded that § 346.63(l)(am) is a strict liability offense and is constitutional. Luedtke,
¶ 22. Luedtke successfully petitioned this court for review.
B. Jessica M. Weissinger
¶ 23. On July 6, 2009, in Mequon, Wisconsin, between 5:00 and 5:30 PM, Weissinger's vehicle collided with a motorcycle. The motorcyclist saw Weissinger's vehicle swerve into his lane when Weissinger turned left at an intersection. Despite applying his brakes, the motorcyclist struck Weissinger's vehicle and was thrown to the pavement causing a broken back, shattered wrists, a head laceration, and a concussion. Weather was not a factor in the crash.
¶ 24. Law enforcement and emergency medical personnel arrived at the scene and administered treatment to the motorcyclist. Investigating Officer Mark Riley ("Officer Riley") spoke with Weissinger for about one minute. Officer Riley noted that Weissinger had bloodshot eyes, but acknowledged that this was consistent with her emotional state and not necessarily indicative of impairment. Officer Brent Smith ("Officer Smith") also examined Weissinger and did not believe her to be intoxicated.
¶ 25. Officer Riley did not initially believe that Weissinger was under the influence of drugs or alcohol. However, anticipating a fatality investigation, he obtained Weissinger's consent for a blood draw. Officer Riley transported Weissinger to the hospital in a Mequon Police Department vehicle. It is undisputed, however, that she was not under arrest at the time. Because the police did not arrest Weissinger for an impaired driving offense, Officer Smith was not required to provide her with an "informing the accused"
¶ 26. At 6:45 PM that same evening, technician Lisa Brandt drew Weissinger's blood, with all parties confirming that both the draw and the return of the sample to the police were acceptable. On July 10, 2009, Weissinger's blood sample arrived at the Laboratory. On July 13, 2009, the Laboratory tested the blood sample for alcohol. The following day, the Laboratory generated a report that stated that the test results did not show the presence of alcohol. The report also stated that: "Specimen(s) will be retained no longer than six months unless otherwise requested by agency or subject."
¶ 27. On August 7, 2009, the Laboratory tested Weissinger's blood sample for drugs using the GCMSD drug panel screen. The GCMSD found that Weissinger's blood contained near-therapeutic range levels of the anti-depressant fluoxetine and therapeutic range levels of the narcotic oxycodone. On February 24, 2010, the final GCMSD analysis revealed that her blood contained THC at a level of 5.9 nanograms per milliliter. On March 7, 2010, the Laboratory generated a report identifying the presence of THC.
¶ 28. The Laboratory mailed the July 2009 report and March 2010 report to
¶ 29. On May 24, 2010, the Ozaukee County District Attorney's Office charged Weissinger with one count of injury by use of a vehicle with a restricted controlled substance (THC) in the blood causing great bodily harm, contrary to Wis. Stat. § 940.25(l)(am), and one count of operating a motor vehicle with a detectable amount of a restricted controlled substance (THC) in the blood, second offense, contrary to Wis. Stat. § 346.63(l)(am).
¶ 30. On May 3, 2011, Weissinger made her first request to retest the blood sample. Soon after, she filed a formal motion to retest the sample. In May 2011, the Laboratory informed her that it had destroyed her blood sample in late April 2010. Weissinger filed a motion to dismiss the charges on the ground that her blood sample had been destroyed. The circuit court denied Weissinger's motion, concluding that the State did not violate Weissinger's due process rights.
¶ 31. From April 23-24, 2012, the case was tried before a jury. The circuit court gave Weissinger wide latitude during cross-examination. Weissinger cross-examined Advanced Chemist Amy Miles ("Miles"), the analyst who tested Weissinger's blood sample for drugs. During cross-examination, Miles acknowledged that testing is not infallible and that she had no certain evidence or direct knowledge of whether Weissinger received the Laboratory's reports. Miles also testified that, based on the blood test results, Weissinger was likely a regular user of marijuana and probably had consumed the substance within a few hours before the accident, certainly within 24 hours. The court, prior to trial, also gave Weissinger additional time to hire an expert witness for her defense, though she ultimately declined to do so.
¶ 32. The circuit court also allowed the jury to hear a statement from Weissinger explaining she was unable to retest her blood sample because it no longer existed. The court prohibited the State from indicating that Weissinger waited until May 2011 to request a retest of the blood.
¶ 33. The jury found Weissinger guilty of both counts. The circuit court withheld sentence and placed her on probation for a period of five years for count one and a period of two years for count two, to be served concurrently. As a condition of probation, the court ordered five months of conditional jail time, stayed pending Weissinger's appeal.
¶ 34. On June 25, 2014, the court of appeals affirmed. The court rejected Weissinger's argument that the destruction of her blood sample violated due process. Weissinger,
¶ 35. Judge Reilly dissented. Judge Reilly argued that "[a] criminal justice system that allows the government to destroy the sole evidence of a person's guilt prior to notice, charging, or a meaningful opportunity for the accused to inspect the State's evidence is fundamentally unfair." Id., f 31 (Reilly, J., dissenting). Judge Reilly argued Youngblood was inapplicable in the present case because Weissinger's blood sample had inculpatory value, not merely "conceivable evidentiary significance." Id., ¶ 38 (Reilly, J., dissenting).
¶ 36. Weissinger successfully petitioned this court for review.
¶ 37. "Whether state action constitutes a violation of due process presents a question of law, which this court decides independently. . . ." State v. Neumann,
¶ 38. "Statutory interpretation is a question of law that this court reviews de novo . . . ." Noffke ex rel. Swenson v. Bakke,
III. DISCUSSION
A. Youngblood Controls
¶ 39. Luedtke and Weissinger's primary argument on appeal is that the Wisconsin Constitution provides greater due process protections than the United States Constitution in the context of evidence preservation and destruction. We disagree. Based on our precedent we hold that, in the context of evidence preservation and destruction, the Wisconsin Constitution does not provide greater due process protections under Article 1, Section 8, Clause 1 than the United States Constitution does under either the Fifth or Fourteenth Amendments. As a result, Arizona v. Youngblood, controls. In order to prevail, Luedtke and Weissinger would have to show that the State (1) failed to preserve evidence that was apparently exculpatory or (2) acted in bad faith by failing to preserve evidence that was potentially exculpatory. Greenwold II,
¶ 40. "This court follows the doctrine of stare decisis scrupulously because of our abiding respect for the rule of law." Johnson Controls, Inc. v. Employers Ins. of Wausau,
ensures that existing law will not be abandoned lightly. When existing law is open to revision in every case, deciding cases becomes a mere exercise of judicial will, with arbitrary and unpredictable results. Consequently, this court has held that any departure from the doctrine of stare decisis demands special justification.
Schultz v. Natwick,
The rationales for following the doctrine of stare decisis ... include: '[1] the desirability that the law furnish a clear guide for conduct of individuals, to enable them to plan their affairs with assurance against untoward surprise; [2] the importance of furthering fair and expeditious adjudication by eliminating the need to relitigate every relevant proposition in every case; and [3] the necessity of maintaining public faith in the judiciary as a source of impersonal and reasoned judgments.'
Johnson Controls,
Five factors typically contribute to a decision to overturn prior case law. This court is more likely to overturn a prior decision when one or more of the following circumstances is present: (1) Changes or developments in the law have undermined the rationale behind a decision; (2) there is a need to make a decision correspond to newly ascertained facts; (3) there is a showing that the precedent has become detrimental to coherence and consistency in the law; (4) the prior decision is unsound in principle; or (5) the prior decision is unworkable in practice.
Bartholomew v. Wisconsin Patients Comp. Fund & Compcare Health Servs. Ins. Corp.,
¶ 41. Wisconsin has a well-settled and long standing body of law on the due process implications of evidence preservation and destruction. See, e.g., State v. Disch,
¶ 42. As early as 1984, we held that "[t]he importance of the production of the original breath ampoule or a portion of the blood sample as the sine qua non of due process is a myth that should not be perpetuated." Ehlen,
¶ 43. That same year, the United States Supreme Court concluded that due process did not require the preservation of a breath sample in order to introduce breathalyzer results at trial. Trombetta,
¶ 44. In Youngblood, the Supreme Court reaffirmed this principle. The Court noted "the importance for constitutional purposes of good or bad faith on the part of the Government when the claim is based on loss of evidence attributable to the Government." Youngblood,
¶ 45. Post-Youngblood, Wisconsin courts have adhered to this precedent. In Greenwold II, the court of appeals concluded that "the due process clause of the Wisconsin Constitution is the substantial equivalent of its respective clause in the federal constitution." Greenwold II,
¶ 46. Therefore, under longstanding Wisconsin precedent, it is clear that the routine destruction of a driver's blood or breath sample, without more, does not deprive a defendant of due process. To prevail on a due process challenge, the defendant must show that the evidence was apparently exculpatory or that it was destroyed in bad faith. Greenwold II,
¶ 47. Though our precedent is clear that destruction alone does not create a due process violation under either constitution, Luedtke and Weissinger both argue that changes or developments in the law, specifically State v. Dubose,
¶ 48. In Dubose, we held that Article I, Section 8 of the Wisconsin Constitution contained a broader due process right than that contained within the Fifth and Fourteenth Amendments to the United States Constitution. Dubose,
¶ 49. However, post -Dubose, we have held that the decision did not create a precedential sea change with respect to the recognition of a broader due process protection under the Wisconsin Constitution than under the United States Constitution. In State v. Drew,
¶ 50. The State correctly notes, even within the specific context of eyewitness identification, postDubose jurisprudence confirms the limited reach of its actual holding: that due process under the Wisconsin Constitution provides greater protection in one identification procedure, the showup. Dubose withdrew no language from Ehlen, Disch, Walstad, or Pankow. Dubose is therefore not a sea change or even a development sufficient to undermine the rationale behind Ehlen, Disch, Walstad, Pankow, and Greenwold II.
¶ 51. Luedtke questions the precedential value of Ehlen and Disch because they were decided before Dubose. Dubose did not involve evidence destruction. The Wisconsin Constitution provides identical protections to the United States Constitution in this context. Luedtke also argues that Ehlen and Disch are distinguishable because "the Court implicitly assumed the defendants were aware of the specific focus of the testing on alcohol." Luedtke argues that, unlike the defendants in Ehlen and Disch, he had no reason to seek an independent test prior to the Laboratory's destruction of his blood sample. That distinction is not persuasive. When the State conducted the blood draw, the officer informed Luedtke that his blood would be tested for drugs and alcohol and that he could have the blood independently tested. Although Luedtke allegedly had no reason to believe that his blood sample would test positive for restricted controlled substances before the Laboratory destroyed it, he knew that his blood sample would be tested for drugs. Thus, he had reason to seek an independent test before the Laboratory destroyed his blood sample. In Ehlen and Disch, we found it significant that the defendants knew of their right to seek independent tests before the State destroyed their blood samples. Ehlen,
¶ 52. Further, Luedtke received notice that the "law enforcement agency now wants to test one or more samples of your breath, blood or urine to determine the concentration of alcohol or drugs in your system." See Wis. Stat. § 343.305(4). Luedtke thus knew the nature of the investigation when he declined to pursue an alternate test. Luedtke and Weissinger's argument that discovery granted them a post-charge right to the preservation of the blood sample is in conflict with our longstanding precedent. We have consistently held that it is the test results, not the blood samples, that fall within the discovery
¶ 53. Because, under our precedent, the Wisconsin Constitution provides no greater due process protections than the United States Constitution regarding evidence preservation and destruction, we now proceed to the application of the Youngblood test. Again, under Youngblood a defendant's due process rights regarding the destruction of evidence are violated if the State (1) fails to preserve evidence that is apparently exculpatory or (2) acts in bad faith by failing to preserve evidence that is potentially exculpatory. Greenwold II,
¶ 54. Neither Luedtke nor Weissinger argue that their blood samples were apparently exculpatory. The fact that Luedtke's blood tested positive for restricted controlled substances, cocaine and its metabolite benzoylecgonine, demonstrates that his blood was apparently not exculpatory. See, e.g., Illinois v. Fisher,
¶ 55. Luedtke and Weissinger's due process claims also fail because the State did not destroy their blood samples in bad faith. Luedtke argues that the State acted in bad faith by destroying his blood sample after he was charged and before he received notice of the charge. Weissinger argues the State acted in bad faith by destroying her sample before she was charged. However, Luedtke and Weissinger have failed to prove bad faith because they have not shown that the State (1) was "aware of the potentially exculpatory value or usefulness of the evidence [the State] failed to preserve"; and (2) "acted with official animus or made a conscious effort to suppress exculpatory evidence." See Greenwold II,
[R] equiring a defendant to show bad faith on the part of the police both limits the extent of the police's obligation to preserve evidence to reasonable bounds and confines it to that class of cases where the interests of justice most clearly require it, i.e., those cases in which the police themselves by their conduct indicate that the evidence could form a basis for exonerating the defendant.
Youngblood,
¶ 56. Requiring bad faith is especially sensible once a blood sample has tested positive for a controlled substance, because at that point the sample is "much more likely to provide inculpatory than exculpatory evidence." See Trombetta,
¶ 57. Weissinger's reliance on State v. Hahn,
¶ 58. Finally, both Luedtke and Weissinger received fair trials. In Ehlen and Disch, we framed the due process issue when evidence is destroyed as one of fairness,
¶ 59. We agree with the State that both Luedtke and Weissinger received fair trials.
¶ 60. Luedtke cross-examined witnesses and the court gave him an opportunity to call his own expert witness, although he chose not to do so. Luedtke also had the opportunity to tell the jury that he was unable to test his blood sample because the Laboratory destroyed it. Luedtke received discovery and additional time from the circuit court to prepare his defense and to seek documents from the Laboratory through an open records request. Although Luedtke was unable to retest the blood sample, he was able to analyze the raw data and methodology that the Laboratory used to test the sample. Further, when Luedtke's blood was drawn the officer informed him, in writing, of his right to independently test the sample or to have a second test performed by the State. Due to these these safeguards we conclude that Luedtke's claim of an unfair trial is unpersuasive.
¶ 61. Weissinger also received a fair trial. The circuit court gave Weissinger full rein to cross-examine the State's witnesses. Weissinger also received discovery. Although she did not call an expert witness, the circuit court granted her extra time to hire one. The circuit court instructed the jury that Weissinger's motion to retest her blood sample was denied because the Laboratory destroyed her sample before the State filed charges. We have held that defendants unable to independently test their blood samples have received fair trials under similar circumstances. See Disch,
¶ 62. While it is true that the Laboratory destroyed Weissinger's sample before the State filed charges, it was under no obligation to preserve the sample any longer than its internal six month retention policy required. Further, the Laboratory upheld its duty in mailing Weissinger the test results. The test results informed her that, unless she requested otherwise, the Laboratory would destroy her blood sample six months after its receipt. Further, Weissinger was not under arrest at the time of her blood draw, thus the officer was under no obligation to advise her regarding the opportunity for additional tests. Weissinger argues that
¶ 63. Consequently, because we hold that the State did not violate Luedtke and Weissinger's due process rights, we conclude that the circuit court was not required to give a jury instruction allowing the jury to infer that the lost evidence was exculpatory. Nor was Luedtke denied the effective assistance of counsel. To demonstrate ineffective assistance of counsel, Luedtke must show that counsel's performance was deficient and that the deficient performance prejudiced him. Strickland v. Washington,
B. Operating a Motor Vehicle with a Restricted Controlled Substance in the Blood is a Constitutional Strict Liability Offense.
¶ 64. Next, we consider whether operating a motor vehicle with a detectable amount of a restricted controlled substance in the blood under Wis. Stat. § 346.63(l)(am) is a strict liability offense, and, if so, whether the offense is constitutional. Only Luedtke presents this as an issue for review, though we note that the State charged Weissinger under the same statute. We hold that operating a motor vehicle with a detectable amount of a restricted controlled substance in the blood under Wis. Stat. § 346.63(l)(am) is a strict liability offense and is constitutional.
¶ 65. "An offense is a strict liability offense if it punishes a defendant's behavior without regard to the mental state of the defendant." State v. Polashek,
¶ 66. The first factor, the language of the statute, weighs in favor of strict liability, as the legislature omitted any requirement
¶ 67. The second factor, the language of related statutes, also weighs in favor of strict liability. Related statutes prohibit 1) the operation of a motor vehicle with a prohibited alcohol concentration,
¶ 68. The third factor, the statute's legislative history, also weighs in favor of strict liability. In the past, we have explained that "[w]hen the legislature's goal is primarily to regulate, to accomplish a social good, or to obtain a high standard of care, proof of a criminal state of mind is often eliminated to achieve the desired result." State v. Stoehr,
Two defenses are available if a detectable amount of a restricted controlled substance is found in the bloodstream: (1) a defense to causing death or injury if the defendant can prove the injury or death would have occurred even if the defendant had been exercising due care and did not have a restricted controlled substance in his or her blood (this is an extension of defenses available under current law); and (2) a defense to having methamphetamine, GHB, or the active ingredient of marijuana in the bloodstream if the defendant can show he or she had a valid prescription for that substance.
Id. at 2. Importantly, "unknowing ingestion" is not listed as a defense.
¶ 69. Further, the legislative history indicates that the legislature intended to make prosecutions easier, by removing the "under the influence" requirement. Requiring the State to prove knowledge would undoubtedly make prosecutions more difficult. By removing the "under the influence" requirement and not providing "unknowing ingestion" as a defense, the legislature was attempting to regulate drugged driving, accomplish a social good, and impose a high standard of care on those who drive after using restricted controlled substances.
¶ 70. The fourth factor, law enforcement practicality, also weighs in favor of strict liability. Intent can be difficult to prove, and, under Luedtke's argument a defendant could assert that he did not knowingly ingest a restricted controlled substance and thus escape liability. For example, a defendant could claim that he accidentally inhaled marijuana smoke, or ate a piece of candy laced with cocaine. The legislative history indicates that the legislature intended to make prosecutions easier. Id. Requiring proof of knowledge or intent is contrary to the purpose of practical enforcement.
¶ 71. The fifth factor, the protection of the public from harm, further weighs in favor of strict liability. The legislature enacted the statute because drivers who have restricted controlled substances in their blood are a threat to public safety.
¶ 72. The sixth factor, the potential penalties imposed, is neutral. This factor is a "significant consideration in determining whether a statute should be construed as dispensing with mens rea." Id., ¶ 27. "Criminal liability without criminal intent almost always has involved statutes that impose fines or short jail sentences." Id. A first-offense violation of § 346.63(l)(am) is a civil forfeiture. Wis. Stat. § 346.65(2)(am)l. A second offense can result in up to six months in jail, and a third offense can result in up to one year in jail. Wis. Stat. § 346.65(2)(am)2-3. A fourth offense can result in one year in jail, if the individual has a total of four convictions in their lifetime, or a Class H felony with six or more months of imprisonment, if the individual has a total of four convictions in their lifetime, one of which was in the last five years. Wis. Stat. § 346.65(2)(am)4 — 4m. A fifth or subsequent offense results in a Class H felony for five or six convictions, a Class G felony for seven, eight, or nine convictions, and a class F felony for ten or more convictions. Wis. Stat. § 346.65(2)(am)5-7. These severe penalties for repeated violations of the statute "support an inference that the legislature did not intend to impose strict liability." See Jadowski,
¶ 73. We decline Luedtke's invitation to apply the rule of lenity. The rule of lenity states "that ambiguous penal statutes should be interpreted in favor of the defendant." State v. Cole,
¶ 74. Alternatively, Luedtke argues that, without scienter, the statute is unconstitutional and violates his substantive due process rights. "The Due Process Clauses of the United States and Wisconsin Constitutions protect both substantive and procedural due process rights." State ex rel. Greer v. Wiedenhoeft,
¶ 75. However, we presume that statutes are constitutional. Cole,
¶ 76. We apply rational basis scrutiny to this statute because the statute does not implicate a fundamental right or suspect class. See State v. Smith,
¶ 77. In the present case, rational basis scrutiny is satisfied because the statute is rationally related to achieving public safety. Id., ¶ 17. We agree with the court of appeals that "[i]n addressing the problem of drugged driving, the legislature could have reasonably and rationally concluded that 'proscribed substances range widely in purity and potency and thus may be unpredictable in their duration and effect.'" Luedtke,
¶ 78. Therefore, because the statute is a strict liability offense and is constitutional, Luedtke is not entitled to a new trial in the interest of justice. Because the jury did not have to determine whether or not Luedtke knew he ingested cocaine, the real controversy was fully tried. Bannister,
¶ 79. First, based on precedent, we hold that, in the context of evidence preservation and destruction, the Wisconsin Constitution does not provide greater due process protection under Article 1, Section 8, Clause 1 than the United States Constitution under either the Fifth or Fourteenth Amendments. As a result, Youngblood controls. Accordingly, in order to prevail, Luedtke and Weissinger must show that the State (1) failed to preserve evidence that was apparently exculpatory, or (2) acted in bad faith by failing to preserve evidence that was potentially exculpatory. Greenwold II,
¶ 80. Second, we hold that operating a motor vehicle with a detectable amount of a restricted controlled substance in the blood under Wis. Stat. § 346.63(l)(am) is a strict liability offense that does not require scienter, and is constitutional. We therefore affirm the court of appeals.
By the Court. — The decision of the court of appeals in each of the two cases is affirmed.
¶ 81. (concurring). The issue before the court is whether the State violated the defendants' due process rights (protected under the Wisconsin Constitution) when a laboratory, following routine practice, destroyed the defendants' blood samples. Neither defendant had an opportunity to independently test his sample.
Notes
All subsequent references to the Wisconsin Statutes are to the 2009-10 version unless otherwise indicated.
Wisconsin Stat. § 346.63(l)(a) states:
No person may drive or operate a motor vehicle while: Under the influence of an intoxicant, a controlled substance, a controlled substance analog or any combination of an intoxicant, a controlled substance and a controlled substance analog, under the influence of any other drug to a degree which renders him or her incapable of safely driving, or under the combined influence of an intoxicant and any other drug to a degree which renders him or her incapable of safely driving.
Diazepam is listed as a Schedule IV controlled substance under Wis. Stat. § 961.20(2)(cr). Methadone is listed as a Schedule II controlled substance under Wis. Stat. § 961.16(3)(r).
See Benzoylecgonine, http://www.merriam-webster. com/ dictionary/benzoylecgonine (last visited Feb. 9, 2015).
Wisconsin Stat. § 346.63(l)(am) states: "No person may drive or operate a motor vehicle while: The person has a detectable amount of a restricted controlled substance in his or her blood."
Wisconsin Stat. § 967.055(lm)(b) defines restricted controlled substance as any of the following: "1. A controlled substance included in schedule I under ch. 961 other than a tetrahydrocannabinol. 2. A controlled substance analog, as defined in s. 961.01 (4m), of a controlled substance described in subd. 1. 3. Cocaine or any of its metabolites. 4. Methamphetamine. 5. Delta-9-tetrahydrocannabinol."
The Honorable Karen L. Seifert, presiding.
Scienter is defined as "[a] degree of knowledge that makes a person legally responsible for the consequences of his or her act or omission." Black's Law Dictionary 1463 (9th ed. 2009).
Wisconsin Stat. § 940.25(l)(am) states: "Any person who does any of the following is guilty of a Class F felony: Causes great bodily harm to another human being by the operation of a vehicle while the person has a detectable amount of a restricted controlled substance in his or her blood."
The Honorable Sandy W. Williams, presiding.
Wisconsin Const, art 1, § 8, cl. 1 states: "No person may be held to answer for a criminal offense without due process of law, and no person for the same offense may be put twice in jeopardy of punishment, nor may be compelled in any criminal case to be a witness against himself or herself."
United States Const, amend. V states: "No person shall be . . . deprived of life, liberty, or property, without due process of law."
United States Const, amend. XIV, § 1 states: "No state shall. . . deprive any person of life, liberty, or property, without due process of law."
Wisconsin Stat. § 343.305(4) requires that a law enforcement officer provide certain information to a person after being arrested for operating while under the influence of alcohol or drugs. The officer must inform the arrestee that his or her blood, breath, or urine sample will be tested for drugs or alcohol. The officer must also inform the arrestee that he or she has the right to take an alternative test free of charge and to have a test conducted by a qualified person of the arrestee's choice and at the arrestee's expense.
A nanogram is one billionth of a gram.
This incident occurred before the 2010 amendment to Wis. Stat. § 343.305(4), in which the legislature amended the statute to require that the "informing the accused" information be provided after any vehicular collision involving grave injury, great bodily harm, or death.
We restricted briefing to the first Bartholomew factor: "Whether changes or developments in the law in State v. Dubose,
Wisconsin Stat. § 346.63(l)(b) states: "No person may-drive or operate a motor vehicle while: The person has a prohibited alcohol concentration."
Wisconsin Stat. § 346.63(2m) states: "If a person has not attained the legal drinking age, as defined in s. 125.02 (8m), the person may not drive or operate a motor vehicle while he or she has an alcohol concentration of more than 0.0 but not more than 0.08."
Wisconsin Stat. § 346.63 (7)(a)l states: "No person may drive or operate or be on duty time with respect to a commercial motor vehicle under any of the following circumstances: While having an alcohol concentration above 0.0."
Luedtke's reliance on State v. Griffin,
The Institute for Behavior and Health estimates that 20 percent of motor vehicle crashes are caused by drugged driving, which "translates into 8,600 deaths, 580,000 injuries, and $33 billion in property damage each year in the United States." Tina Wescott Cafaro, Slipping Through the Cracks: Why Can't We Stop Drugged Driving?, 32 W. New Eng. L. Rev. 33, 35 (2010). See also Robert L DuPont, M.D., Drugged Driving Research: A White Paper 4 (Mar. 31, 2011), http://stop druggeddriving. org/pdfs/DruggedDrivingAWhitePaper.pdf (reporting that one-third of fatally injured drivers with known test results tested positive for drugs.).
Luedtke argues that the statute punishes those who accidentally ingest cocaine. He does not argue that he accidentally ingested cocaine. Luedtke merely argues that it was possible that it happened because "he does not use cocaine." Further, Luedtke cites to studies that show cocaine is present on paper currency and in lakes, but does not explain how such exposure could result in a positive blood test. We decline to address this undeveloped argument.
Concurrence Opinion
| 82. These cases raise the broader question of the capacity of the defendant, as a matter of due process law, to gain access to evidence the defendant may use at trial.
¶ 83. The court takes two approaches in deciding that the defendants lose:
¶ 84. The first approach is to deny that the Wisconsin constitution offers greater protection than the United States Constitution. Rather, the court holds that the United States Supreme Court decision in Arizona v. Youngblood,
¶ 85. The second approach is to assert that the court is bound, under the doctrine of stare decisis, by its prior decisions adopting Youngblood.
¶ 86. I take a third approach to the present cases. I do not rely on the due process clause of the Wisconsin Constitution. I would require that hereafter a circuit court is to instruct the fact finder in cases like the instant cases that the fact finder may, but need not, infer that the destroyed evidence would have been favorable to the defense. If hereafter such a jury instruction is not given, the cause should be remanded for a new trial.
I
¶ 87. First, I disagree with the court's persistent antipathy to construing the Wisconsin Constitution's Declaration of Rights differently from the way the United States Supreme Court construes an analogous provision in the federal constitution. Federal jurisprudence is persuasive and helpful, but this court must make an independent judgment considering competing principles and policies under the Wisconsin Constitution.
¶ 88. We should follow our earlier precedent regarding interpretation of the Wisconsin Constitution. Ten years ago, the
• In State v. Knapp,2005 WI 127 , ¶ 60,285 Wis. 2d 86 ,700 N.W.2d 899 , the court stated: "While textual similarity or identity is important when determining when to depart from federal constitutional jurisprudence, it cannot be conclusive, lest this court forfeit its power to interpret its own constitution to the federal judiciary. The people of this state shaped our constitution, and it is our solemn responsibility to interpret it. Federal jurisprudence is persuasive and helpful, but we must save independent judgment for considering competing principles and policies under the Wisconsin Constitution."1 (Citation omitted.)
• In State v. Dubose,2005 WI 126 , ¶ 41,285 Wis. 2d 143 ,699 N.W.2d 582 , the court stated: "[Wjhile this results in a divergence of meaning between words which are the same in both federal and state constitutions, the system of federalism envisaged by the United States Constitution tolerates such divergence where the result is greater protection of individual rights under state law than under federal law...." (Quoted source omitted.)
¶ 89. In keeping with my oath of office to support the Wisconsin Constitution and the Constitution of the United States, I adhere to Knapp and Dubose and to State v. Doe,
¶ 90. The court must make this judgment in each case.
¶ 91. The majority opinion applies Arizona v. Youngblood to interpret the Wisconsin constitution. Youngblood is a troublesome case.
II
¶ 92. Second, the majority opinion relies on Wisconsin precedent. See State v. Greenwold (Greenwold II),
¶ 93. Stare decisis, "let the decision stand," is an essential bedrock principle in our system of justice. To overrule precedent requires special justification. "A court must keep in mind that it does 'more damage to the rule of law by obstinately refusing to admit errors, thereby perpetuating injustice, than by overturning an erroneous decision.
¶ 94. The court has set forth the following factors that typically contribute to a decision to overturn prior case law:
• Changes or developments have undermined the rationale behind a decision;
• There is a need to make a decision correspond to newly ascertained facts;
• There is a showing that the precedent has become detrimental to coherence and consistency in the law;
• The prior decision is "unsound in principle;"
• The prior decision is "unworkable" in practice;
• The prior decision was not correctly decided; and
• The prior decision has not produced a settled body of law.3
¶ 95. These factors are sufficiently implicated in the present case to justify overturning Greenwold, as demonstrated by Judge Brown's concurrence and Judge Reilly's dissent in the Weissinger decision in the court of appeals.
¶ 96. Judge Brown wrote in concurrence: Youngblood "sets up an illusion. . . . The bad faith component devised by the Supreme Court sets such a high bar, it is virtually impossible to overcome."
¶ 97. Judge Reilly wrote in dissent: "A criminal justice system that allows the government to destroy the sole evidence of a person's guilt prior to notice, charging, or a meaningful opportunity for the accused to inspect the State's evidence is fundamentally unfair."
¶ 98. I share these judges' unease with the federal standard set forth in Youngblood (and adopted by Wisconsin case law).
¶ 99. The Youngblood and Greenwold II decisions do not give meaningful protection to a defendant. "Ironically, the rule of law established by [Youngblood] was founded upon the conviction of an innocent man."
¶ 100. There is an emerging consensus among courts that have considered the issue that the bad faith standard does not go far enough to protect adequately the rights of a person charged with a crime. I agree with those courts that viewed the bad faith requirement as a "potentially bottomless pit for a defendant's interest in a fair trial, and stepped back from the brink."
Ill
¶ 101. I conclude that under the circumstances of these cases the court should
¶ 102. This court often governs evidence in the circuit courts and requiring a curative instruction is not unusual in Wisconsin law.
¶ 103. If hereafter such a jury instruction is not given in cases such as the instant cases, the cause should be remanded for a new trial.
¶ 104. I favor this approach because there should be consequences for even innocent or negligent loss or destruction of evidence to deter the State from losing or destroying evidence and to ensure that defendants do not bear the total burden of the State's conduct.
¶ 105. Finally, I note that the invocation of a curative instruction is especially important in light of recent cases developing the law of evidence in this state. It is arguable that defendants are being given fewer and fewer opportunities to assess evidence against them.
¶ 106. For example, in State v. O'Brien,
¶ 107. If the defendant's ability to cross-examine witnesses is being reduced, there is all the more reason to be sure that a defendant has the opportunity to independently test blood and challenge the State's evidence of the blood sample.
¶ 109. For the reasons set forth, I write separately.
See State v. Knapp,
Bartholomew v. Wis. Patients Comp. Fund,
Johnson Controls, Inc. v. Employers Ins. of Wausau,
State v. Weissinger,
See id., ¶ 30, n.l (Brown, C.J., concurring).
Weissinger,
State v. Greenwold,
Norman C. Bay, Old Blood, Bad Blood, and Youngblood: Due Process, Lost Evidence, and the Limits of Bad Faith, 86 Wash. U. L. Rev. 241, 243 (2008). See also 6 Wayne R. LaFave, Criminal Procedure § 24.3(e) at 388-89 (3d ed. 2007).
Cost v. State,
Numerous states have rejected Arizona v. Youngblood on state constitutional grounds. Cynthia E. Jones, The Right Remedy for the Wrongly Convicted: Judicial Sanctions for Destruction of DNA Evidence, 77 Fordham L. Rev. 2893 (2009); Norman C. Bay, Old Blood, Bad Blood, and Youngblood: Due Process, Lost Evidence, and the Limits of Bad Faith, 86 Wash. U. L. Rev. 279 (2008); Illinois v. Fisher,
The instruction I propose would not be given when it is necessary for the sample to be destroyed to perform the test. See State v. Ehlen,
This court has superintending authority over all courts. Wis. Const, art. VII, § 3(1). See In re Jerrell C.J.,
See, e.g., People v. Handy,
For a discussion of mistakes made in crime laboratories, a failing score of the Wisconsin State Laboratory of Hygiene, and the limitations on the defendant in cross-examination, see Judge Reilly's dissent in Weissinger,
Cost v. State,