COURT OF APPEALS DECISION DATED AND RELEASED May 8, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
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No. 95-3239
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
ROMAN G. BROTZ,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Sheboygan County:
L. EDWARD STENGEL, Judge. Affirmed.
BROWN, J. Roman
G. Brotz raises due process and equal protection challenges to the blood
alcohol testing procedures authorized under the implied consent law. He argues that the margin of error
calculation for breath alcohol testing machines which is promulgated by the
Department of Transportation (DOT) unfairly discriminates against drivers who
are near that line where a breath alcohol concentration becomes presumptive
evidence of actual intoxication. We
conclude, however, that Brotz has no standing to bring either of his
constitutional challenges because his test results, even accounting for the
margin of error, were so far over the line that he would not benefit by the
legal precedent he seeks to make. We affirm
his conviction for operating a motor vehicle while intoxicated.
An officer from the
Sheboygan County Sheriff's Department stopped Brotz in the early morning hours
of September 12, 1994, because he suspected Brotz of drunk driving. Brotz agreed to take a breath test. The test was performed by an Intoxilyzer
5000 and yielded two results of .214 and .233 grams of alcohol per 210 liters
of breath. This evidence led to Brotz's
conviction of operating a vehicle with a prohibited alcohol concentration. See § 346.63(1)(b), Stats.
Brotz now renews the
constitutional challenges he made before the trial court. He develops this argument as follows. He begins with an explanation of how
Wisconsin's drunk-driving law prohibits a person from driving when he or she
has too great an alcohol concentration within his or her system. See id.; but cf. State
v. McManus, 152 Wis.2d 113, 122-24, 447 N.W.2d 654, 657 (1989)
(explaining that former § 346.63(1)(b), Stats.,
1987-88, determined liability on the basis of breath test results).[1] He further contrasts Wisconsin's current law
with those jurisdictions that determine liability based on whether the driver's
breath or blood test result is above a certain level. See McManus, 152 Wis.2d at 125, 447 N.W.2d at 658
(citing State v. Brayman, 751 P.2d 294, 298 (Wash. 1988)).
Nonetheless, under this
state's law, Brotz explains that the risk of a potentially flawed test presents
a constitutional threat to drivers because they may not be actually intoxicated
(and hence in violation of the law) even though they yield a positive result. He notes that when a driver's breath test
result is above .10 grams per 210 liters of breath, the statutory presumption
of unlawful intoxication is triggered. See § 885.235(1)(c), Stats. But because of the margin of error accepted
under the DOT regulations, Brotz explains that a driver's actual breath alcohol
concentration could be miscalculated by .01 gram. Hypothetically, a driver who only had a breath alcohol
concentration of .09 grams could still trigger the statutory presumption
because the machine's margin of error may add .01 gram to the actual
result.
The DOT regulations
which Brotz targets as the source of the problem provide in pertinent part:
Procedure for testing and certifying the
accuracy of breath alcohol test instruments. (1) All quantitative
breath alcohol test instruments approved for use in this state shall be tested
and certified for accuracy in accordance with the following standards:
....
(b) Each test for accuracy shall include, but not be limited to, an
instrument blank analysis and an analysis utilizing a calibrating unit. The result of the calibrating unit analysis
shall fall within 0.01 grams of alcohol per 210 liters of the established
reference value.
Wisconsin Adm. Code § Trans 311.10. The “due process problem” that Brotz sees with the DOT's .01 gram
margin of error is that the state is “permitted to shirk its responsibility to
prove guilt beyond a reasonable doubt.”
He seems to argue that the possibility of a .01 gram error always
creates a reasonable doubt and he must therefore be allowed some means to
challenge the DOT's selection of this standard before his test results are
deemed presumptive evidence that he was intoxicated. See § 885.235(1)(c), Stats.
Similarly, Brotz sees an “equal protection problem” with the DOT
regulations because they treat drivers “within the margin of error disparately
from those outside the margin of error of the machine.”
We conclude, however,
that Brotz does not have standing to raise either of these alleged constitutional
infirmities. Whether a person has
standing is a question of law which we review de novo. Mogilka v. Jeka, 131 Wis.2d
459, 467, 389 N.W.2d 359, 362 (Ct. App. 1986).
We employ a two-pronged test to determine if a person has standing. First, we ask if the person was injured in
fact. Id. Next, we gauge if the person's injury falls
within the zone of interest protected by the constitutional guarantee in
question. Id.
Brotz was not injured in
fact and thus fails the first prong of the test. His lowest test result was .214 grams. Thus, the greatest effect that the DOT's margin of error could
have had was to falsely report his actual breath alcohol concentration at this
level when it was actually .204 grams.
At the lower level, however, Brotz was still more than 100% over the
amount that triggers the presumption of intoxication. See § 885.235(1)(c), Stats. Because
Brotz's test results were so high, the possible constitutional problems in the
DOT's selection of .01 gram as an appropriate margin of error has not had any
effect.
Indeed, when we examine
the cases that Brotz cites to support his constitutional arguments, we see that
each of the defending drivers was very near the line at which a test result
triggered liability. For example, in Haynes
v. State Dep't of Pub. Safety, 865 P.2d 753, 754 (Alaska 1993), the
driver had a test result of .106 grams per 210 liters of breath. Although the margin of error under that
state's drunk-driving law was also .01 gram, the driver in that case could have
had an actual breath alcohol content as low as .096 grams. See id. So while Haynes may support
Brotz's legal analysis, important facts of the case make it
distinguishable. See also State
v. Boehmer, 613 P.2d 916, 917-18 (Haw. Ct. App. 1980) (blood alcohol test
reading at .11% could represent actual blood alcohol content as low as .0935%);
State v. Bjornsen, 271 N.W.2d 839, 840 (Neb. 1978) (blood alcohol
test reading of .10% could represent actual blood alcohol content of .095%); State
v. Keller, 672 P.2d 412, 413 (Wash. Ct. App. 1983) (registered reading
of .10% could represent actual alcohol content of .09%). Since Brotz's test results do not raise
similar concerns that he may have been affected by the DOT's selection of a .01
gram margin of error, we hold that he has no standing and reject his
constitutional challenges.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.