COURT OF APPEALS DECISION DATED AND RELEASED December 10, 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
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-1973-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
DAVID G. ALEXANDER,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
TIMOTHY G. DUGAN, Judge. Affirmed.
FINE,
J. David G. Alexander appeals from a judgment entered on a
jury verdict convicting him of operating a motor vehicle while under the
influence of an intoxicant as a third offense, see §§ 346.63(1)(a) &
346.65(2), Stats., and operating
a motor vehicle with a prohibited alcohol concentration of .08% or more, see
§§ 340.01(46m)(b), 346.63(1)(b) & 346.65(2), Stats. He contends
that the trial court erred in the following respects: (1) by not suppressing the results of the Intoxilyzer test that
was given to him by the police; (2) by not accepting his offer to stipulate to
his prior drunk-driving offenses, thereby permitting the jury to learn that he
had already been twice convicted of drunk driving; (3) by refusing to give to
the jury his “theory-of-defense” instruction; and (4) by not ruling that his
prosecution was barred by the double-jeopardy clause of the Fifth Amendment as
a result of the prior administrative suspension of his driver's license. We affirm.
1. The
Intoxilyzer test.
Following Alexander's
arrest for drunk driving, police gave him a breath test using a machine that
Alexander contends was not properly certified. Therefore, he argues, the trial
court should not have admitted the results of that test.
Wis.
Adm. Code § Trans. 311.04 provides:
Approval of breath alcohol test
instruments. (1) Only instruments and ancillary
equipment approved by the chief of the chemical test section may be used for
the qualitative or quantitative analysis of alcohol in the breath.
(2) (a) All
models of breath testing instruments and ancillary equipment used shall be
evaluated by the chief of the chemical test section.
(b) The
procedure for evaluation shall be determined by the chief of the chemical test
section.
(3) Each type or category
of instrument shall be approved by the chief of the chemical test section prior
to use in this state.
The police used an
Intoxilyzer 5000 for Alexander's breath test.
Prior to this test, however, a new processor board was installed. The new board had a different model number than
the one it replaced. At a hearing on
Alexander's motion to suppress the breath-test results, George Menart, a senior
electronics technician with the Wisconsin State Patrol, testified without
contradiction that there was no difference between the machine with the old
processor board and the machine with the new board insofar as “the basic
analysis” of a subject's breath was concerned.
Therefore, he testified, the Department of Transportation did not
evaluate the Intoxilyzer machine with the new processor board because it had
already evaluated the machine with the old board.
Alexander moved to
suppress the Intoxilyzer results, claiming that Wis. Adm. Code § Trans. 311.04 was violated. The trial court denied Alexander's
suppression motion, finding that there was “no difference in how the machine
operates” with the new replacement board so that the machine with the new
processor board was “the same” for breath-test purposes as it was with the old
board.
Admissibility of
evidence is governed by Rule
901.04, Stats.[1] Both parties tacitly treated the
admissibility of the results of Alexander's breath test as one to be decided
under Rule 901.04(1), rather than
as one of conditional relevancy under Rule
901.04(2); neither side asked the trial court to have the jury make the
ultimate determination of whether the machines had passed muster under the
regulation. The trial court's finding
that there were no material differences between the machine that had gone
through the evaluation process required by Wis.
Adm. Code § Trans. 311.04 and the machine after the new board was
installed was based on evidence that was not controverted. Accordingly, its conclusion that § Trans. 311.04 had been complied with,
and its decision to admit the results of the breath test were proper.[2]
2. Alexander's
proffered stipulation.
No person who “has 2 or
more prior convictions, suspensions or revocations” for drunk driving “as
counted under s. 343.307(1)” may drive a motor vehicle in Wisconsin if he or
she has “a blood alcohol concentration of 0.08% or more.” Sections 340.01(46m)(b) & 346.63(1)(b), Stats.
These “prior convictions, suspensions or revocations” constitute “an
element of the offense.” State v.
Ludeking, 195 Wis.2d 132, 136, 536 N.W.2d 392, 396 (Ct. App.
1995). Alexander offered to stipulate
to his drunk-driving record, and moved to bar the State from introducing
evidence of those prior convictions.
The trial court denied the motion. This was error. See State v. McAllister,
153 Wis.2d 523, 525, 529, 451 N.W.2d 764, 765, 767 (Ct. App. 1989) (where
defendant's prior felony conviction is element of crime, defendant's offer to
stipulate to the prior felony makes nature of felony not relevant unless it is
being offered for some purpose other than to establish the felony-conviction
element). We conclude, however, that
the error was harmless. See id.,
153 Wis.2d at 530, 451 N.W.2d at 769 (improper admission of evidence in face of
defendant's offer to stipulate subject to harmless-error analysis); see State
v. Dyess, 124 Wis.2d 525, 543, 370 N.W.2d 222, 233 (1985) (reversal of
conviction not warranted unless there is reasonable possibility that error
contributed to conviction).
Alexander's status as a
two-time convicted drunk driver made it illegal for him to drive if his
blood-alcohol concentration exceeded .08%.
See §§ 340.01(46m)(b) and 346.63(1)(b), Stats. The Intoxilyzer test of Alexander's breath indicated a
blood-alcohol concentration of .24%—three times the legal limit. Moreover, the trial court instructed the jury
that evidence of Alexander's two prior drunk-driving convictions was being
received because that evidence “bears upon the second element that the State
must prove for the offense of driving with a prohibited alcohol concentration,”
that the jury was not to use the evidence “for any other purpose,” and that the
evidence was “not proof of guilt of the offense charged in this case.” It is presumed that juries comply with the
trial court's instructions. State
v. Truax, 151 Wis.2d 354, 362, 444 N.W.2d 432, 436 (Ct. App. 1989).[3] There is no reasonable possibility that the
trial court's error in not following McAllister contributed to
Alexander's convictions in this case.
3. Theory-of-defense
instruction.
Alexander complains that
the trial court did not give a special theory-of-defense instruction. Specifically, he argues that the trial court
erred by not telling the jury that Alexander's theory-of-defense was: (1) that he did not drink enough alcohol “to
render him incapable of safely driving”; and (2) that the Intoxilyzer did not
accurately measure Alexander's blood-alcohol concentration because it might
have measured “residual mouth alcohol as opposed to deep lung alcohol,” and
because the machine's “maintenance history raises serious doubts about its
reliability and accuracy.”
A “trial court has wide
discretion in choosing the language of jury instructions and if the
instructions given adequately explain the law applicable to the facts, that is
sufficient and there is no error in the trial court's refusal to use the
specific language requested by the defendant.”
State v. Herriges, 155 Wis.2d 297, 300, 455 N.W.2d 635,
637 (Ct. App. 1990). Although a trial
court must provide legal framework for a defendant's arguments that are
supported by the evidence, it need not iterate for the jury a defendant's
contentions. State v. Davidson,
44 Wis.2d 177, 191–192, 170 N.W.2d 755, 763 (1969). Alexander does not claim that he was precluded by the trial court
from arguing his contentions to the jury or that the jury was not otherwise
accurately instructed on the applicable law.
Accordingly, his complaint that the trial court erred is without merit. See id., 44 Wis.2d at
192, 170 N.W.2d at 763.
4. Double
jeopardy.
Both Alexander and the
State recognize that State v. McMaster, 198 Wis.2d 542, 543
N.W.2d 499 (Ct. App. 1995), review granted, ___ Wis.2d ___, 546 N.W.2d
468 (1996), which held that an administrative suspension of a driver's
operating license did not bar a subsequent criminal prosecution based on the
same conduct, is dispositive.
Accordingly, no analysis here is required or permitted. See In re Court of Appeals of
Wisconsin, 82 Wis.2d 369, 371, 263 N.W.2d 149, 149-150 (1978) (per
curiam) (a published decision by one district of the court of appeals is
binding on the court of appeals).
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[1] Rule 901.04, Stats., provides in material part:
Preliminary questions.
(1) QUESTIONS OF ADMISSIBILITY GENERALLY. Preliminary questions concerning the
qualification of a person to be a witness, the existence of a privilege, or the
admissibility of evidence shall be determined by the judge, subject to sub. (2)
and ss. 971.31 (11) and 972.11 (2). In
making the determination the judge is bound by the rules of evidence only with
respect to privileges and as provided in s. 901.05.
(2) RELEVANCY CONDITIONED ON FACT. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the judge shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
[2] We do not, therefore, decide whether suppression would have been an appropriate remedy if the Intoxilyzer machine had not passed the evaluation process required by Wis. Adm. Code § Trans. 311.04. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663, 665 (1938) (only dispositive issue need be addressed).