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COURT OF APPEALS DECISION DATED AND RELEASED January 8, 1997 |
NOTICE |
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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. 96-2155-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
DONALD G. KESTER,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Sheboygan County:
JAMES J. BOLGERT, Judge. Affirmed.
SNYDER, P.J. Donald G. Kester appeals from a judgment of
conviction for operating a motor vehicle with a prohibited blood alcohol
concentration, second offense, contrary to § 346.63(1)(b), Stats.[1] He raises the following issues on
appeal: (1) the officer's stop was not
based on reasonable suspicion; (2) the trial court erred by denying him the
right to cross-examine the Intoxilyzer operator regarding the machine's ability
to detect residual mouth alcohol; and (3) his conviction was violative of the
double jeopardy clause of the Fifth Amendment because his license had already
been administratively suspended for the same act. Because we conclude that there is no legal merit to Kester's
first two claims and that the double jeopardy argument is controlled by State
v. McMaster, No. 95-1159-CR (Wis. Dec. 13, 1996), we affirm.
Sometime after 10:00
p.m., while on his way to work, Officer Todd Priebe of the Sheboygan police
department observed a car pull out in front of him while making a right
turn. As he continued on his way to
work, Priebe saw the vehicle deviate from its lane of travel and cross a
clearly marked centerline on at least two occasions. Upon arriving at work, Priebe relayed his observations to an
on-duty officer, who unsuccessfully attempted to locate the vehicle.
Priebe began his shift
at 11:00 p.m. and approximately two hours later noticed the same vehicle parked
outside of a tavern. He then observed
an individual get into the car and drive away.
Priebe followed the car; at one point it came upon a parked car and he
observed the car “overcompensate” as it passed the parked vehicle and proceed
into the oncoming traffic lane, coming to within three to four feet of the
left-hand curb. Shortly thereafter, the
car pulled into a driveway and Priebe approached the driver.
After failing to
properly perform field sobriety tests, the driver of the car, Kester, was
arrested and transported to the police station. He then submitted to an Intoxilyzer test, which showed a reading
of 0.18%. The case proceeded to trial;
however, prior to trial, defense counsel filed a motion to dismiss based upon
double jeopardy, and a motion to suppress, claiming that police lacked
reasonable suspicion for the stop. The
trial court denied both motions.
Kester requested a jury
trial. At trial, defense counsel
attempted to cross-examine Priebe about his statement that the Intoxilyzer
detects residual mouth alcohol by introducing a study which disputes this. The trial court held that Priebe could not
be subjected to cross-examination on this issue because Priebe did not hold
himself out as an expert in the science behind the Intoxilyzer. The trial court held that the sought-after
evidence should have been admitted through expert testimony or through admission
as a learned treatise. Kester was found
guilty of operating a motor vehicle while intoxicated and operating with a
prohibited blood alcohol concentration.
He now appeals.
Kester first contends
that Priebe's stop was not based upon reasonable suspicion and was violative of
the Fourth Amendment's prohibition against unreasonable searches and
seizures. Whether the officer possessed
reasonable suspicion such that stopping Kester was not violative of his
constitutional protections presents an issue of constitutional fact. A review of constitutional principles as
applied to established facts is de novo.
See State v. Turner, 136 Wis.2d 333, 344, 401
N.W.2d 827, 832 (1987).
It is well settled that
stopping an automobile and detaining its occupants constitutes a seizure under
the Fourth Amendment. See State
v. Baudhuin, 141 Wis.2d 642, 648, 416 N.W.2d 60, 62 (1987). The validity of such a stop depends upon
whether the individual was lawfully stopped.
See id. An
officer has authority to stop a vehicle where the officer has reasonable
grounds to believe that a violation of a traffic regulation has occurred. See id. The test for determining the
constitutionality of an investigative stop is an objective test of
reasonableness. See State
v. Guzy, 139 Wis.2d 663, 675, 407 N.W.2d 548, 554 (1987).
The reasonableness of an
investigative stop depends upon the facts and circumstances that are present at
the time of the stop. See id.
at 679, 407 N.W.2d at 555. “Given a
triggering fact or facts of suspicion, law enforcement officers and reviewing
courts may also consider the circumstances that were present in determining the
weight to be given those facts in making the balance between the intrusion and
the societal interest.” Id. As long as there exists a correct legal
theory to justify the stop and articulable facts fitting a traffic law
violation, the stop is a legal one. See
Baudhuin, 141 Wis.2d at 651, 416 N.W.2d at 63.
At the time that Priebe
made the traffic stop, he had the following facts: several hours earlier, the same car had executed an unsafe right
turn, causing Priebe to brake in order to avoid a collision; just after that,
he had observed the car cross a marked centerline several times; he later
observed the same vehicle being operated; and just prior to the stop, he
observed the driver of the car overcompensate while passing a parked car and
move into the oncoming traffic lane, only three to four feet from the curb.
All of these
observations, taken together, provided Priebe with a reasonable basis for
making a brief investigative stop. Once
Kester was approached, further observations by Priebe led him to conclude that
Kester was an impaired driver. We
affirm the trial court's ruling that the stop was sustained by enough reasonable
suspicion to support a brief investigative stop.
Kester next argues that
the trial court erred when it denied him the opportunity to cross-examine
Priebe, who operated the Intoxilyzer, regarding the machine's ability to detect
residual mouth alcohol. The
introduction or exclusion of evidence rests within the sound discretion of the
trial court. See Ritt v.
Dental Care Assocs., 199 Wis.2d 48, 72, 543 N.W.2d 852, 861 (Ct. App.
1995). The issue on appeal is whether
the trial court exercised its discretion in accordance with acceptable legal
standards and the facts of record. See
State v. Pharr, 115 Wis.2d 334, 342, 340 N.W.2d 498, 501
(1983). A discretionary determination
must be the product of a rational mental process, whereby the facts of record
and the law relied upon are stated together, leading one to conclude that the
court has made a reasoned determination.
See Hartung v. Hartung, 102 Wis.2d 58, 66, 306
N.W.2d 16, 20‑21 (1981).
On direct examination,
Priebe testified as to certain occurrences which would cause the Intoxilyzer to
invalidate a sample received.[2] One such occurrence was if it detected
“residual mouth alcohol” since a true measure of an individual's level of
intoxication must utilize deep lung air. When asked on cross-examination to
comment on the process by which residual mouth alcohol causes the Intoxilyzer
to invalidate a test result, Priebe responded, “I'm not an expert in the
Intoxilyzer 5000, so I'm not -- I'm not sure.”[3] Defense counsel, however, continued:
Q:Are
you aware of a study that was done sponsored by the Wisconsin State Laboratory
of Hygiene which concluded that the residual mouth alcohol detector doesn't
always work in the Intoxilyzer 5000?
Are you aware of anything like that?
An
objection was made by the State that this line of questioning was “[b]eyond the
scope of [Priebe's] expertise through his previous testimony.” After a sidebar conference, the court
dismissed the jury and a discussion ensued in open court.
Defense counsel sought
to introduce the conclusion of an article from a scientific journal that the
“residual mouth alcohol flagging program” of the Intoxilyzer 5000 is not
entirely reliable. The State argued
that introduction of the article called for expert testimony and Priebe had not
been held out as an expert. Defense
counsel countered that he was using the treatise for impeachment on
cross-examination and that this was allowed under § 908.03(18)(a), Stats.
The statutory authority
defense counsel offered as allowing the introduction of the treatise provides
in pertinent part:
(18) Learned treatises. A published treatise, periodical or pamphlet
... is admissible as tending to prove the truth of a matter stated therein if
... a witness expert in the subject testifies, that the writer of the statement
... is recognized in the writer's profession or calling as an expert in the
subject.
(a) No published treatise ... may be
received in evidence, except for impeachment on cross-examination, unless the
party proposing to offer such document in evidence serves notice in writing
upon opposing counsel at least 40 days before trial.
Section
908.03(18), Stats. Defense counsel argued that because he
wanted to use the treatise to cross-examine Priebe, it was admissible.
We conclude, as did the
trial court, that this argument misconstrues this subsection. The statute initially provides for the
admissibility of any treatise which is substantiated by an expert witness as to
its authenticity within the scientific community. Paragraph (a) then allows for the use of such a treatise for
purposes of cross-examination. We agree
with the trial court's reasoning that para. (a) allows a treatise to be used to
cross-examine an expert, but not to impeach a witness without any
particular expertise in the area in question.
The trial court reasoned:
You will not be permitted to introduce
the conclusions of the Journal of Forensic Sciences through cross-examination
of this witness. If you want to
introduce those types of conclusions, I understand there's a couple ways of
doing it. You can bring in an expert or
you can file learned treatises.
This person is present as a trained operator of this device. You asked him if he was an expert in the
science behind it. He said no. I don't think that opens the door for you to
parade a series of conclusions or even one conclusion past him in an area
that's not within his expertise.
There are many ways you could have
introduced this into evidence, and you chose to do it on cross-examination of a
witness who doesn't have an expertise in the area which you're questioning him.
The
trial court made a well-reasoned decision not to allow the admission of this
evidence in this way. We conclude that
it was a proper exercise of discretion.
As a final issue, Kester
claims that his conviction is violative of constitutional double jeopardy
protections because he was previously administratively suspended for the same
act. This issue is controlled by McMaster,
in which the supreme court rejected this claim.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[1] The jury also found him guilty of the companion charge of operating a motor vehicle while under the influence of an intoxicant. See § 346.63(1)(a), Stats.
[2]
Priebe was asked on direct examination:
Q:[F]rom your training and
experience, are there certain things that would be printed out on the
Intoxilyzer printout card if the instrument was malfunctioning?
A:Yes, there is.
Q:Can you give me some examples?
A:There would be an indicator of r.f.i., which means radio frequency interference; residual mouth alcohol; blowing too early; starting the test procedures too early; pulling the test record out of the machine from the printer. That would also be indicated. Also, if the diagnostic check is not okay, that would also be indicated.