COURT OF APPEALS DECISION DATED AND RELEASED December
7, 1995 |
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. 95-0290
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
CITY
OF PRAIRIE DU CHIEN,
Plaintiff-Respondent,
v.
GEORGE
J. EASTMAN,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Crawford County: MICHAEL KIRCHMAN, Judge. Affirmed.
EICH,
C.J.[1] George Eastman appeals from a judgment
finding him guilty of driving while intoxicated in violation of a City of
Prairie du Chien ordinance adopting § 346.63(1), Stats. He claims that
the judgment cannot stand because there was no evidence that the Intoxilyzer
machine used to determine his blood alcohol content had been periodically
tested as required by various provisions of the administrative code.[2]
We
reject the argument and affirm the judgment.
Eastman
bases his argument on City of New Berlin v. Wertz, 105 Wis.2d
670, 314 N.W.2d 911 (Ct. App. 1981), which he says compels the conclusion that
the city's failure to affirmatively prove the dates and results of the required
testing of the machine requires dismissal of the charge.
Wertz does not so hold, however. In that case, the defendant sought to suppress the results of a
breath test on grounds that the testing methods and procedures did not meet
provisions of the administrative code requiring (a) continuous observation of
the subject for twenty minutes prior to testing and (b) compliance of the
"assay report" of the machine's manufacturer with certain
standards. Wertz, 105
Wis.2d at 672 n.2, 314 N.W.2d at 912.
We held that his "contention is not correct" because
"[t]he State is not required to affirmatively prove compliance with
administrative code procedures as a foundation for the admission of a breath[]
test." Id. at 673,
674, 314 N.W.2d at 912, 913. We based
our holding largely on the fact that the statute rendering such tests
admissible in court, § 343.305(7), Stats.,
"places no conditions on the admissibility of the results of [the]
test." Id. at 673, 314 N.W.2d at 912.
Eastman
points to dicta in a footnote in Wertz where, in discussing
statutes establishing time limitations for administration of breath tests[3]
and requiring proof of authentication or identification of items received in
evidence,[4]
we noted that our own examination of the record "reveals an abundance of
evidence demonstrating the probable accuracy of the ... test,"
illustrating the point as follows:
The City offered
evidence that the operator of the breathalyzer was certified as an operator and
that he was experienced in operating the machine. There was also evidence that the machine had been properly
tested before and after the test and that the ... operator had carefully
followed the recommended procedures for operation of the machine. There was evidence which demonstrated, at
the very least, substantial compliance with [Wis.
Adm. Code § Trans 311], if not actual compliance with the relevant
sections dealing with breathalyzer tests and standards.
Wertz, 105 Wis.2d at 676-77 n.10, 314 N.W.2d at 914 (emphasis added).
We
framed the issue in Wertz as "whether the prosecutor was
required to prove compliance with certain administrative code procedures as
foundation for the introduction into evidence of the results of a breathalyzer
test," and we held that "compliance with all administrative code
procedures was not required for [the] test
results to be admitted ...."
Wertz, 105 Wis.2d at 671, 314 N.W.2d at 911. And while, as we said in Wertz,
trial courts may, in appropriate cases--such as where the court is convinced
"that the accuracy of the test is so questionable that its results are not
probative" (and thus not relevant evidence under § 904.01, Stats.), or where "accuracy of the
test is so questionable that its probative value is outweighed by its
prejudicial effect"--properly refuse to admit the test in evidence even
though there are "no legislatively imposed foundational
prerequisites," id. at 675, 314 N.W.2d at 913, there is no
argument that such is the case here, and the trial court did not so rule. Indeed, the court recognized that the
Intoxilyzer operator had been trained in the machine's operation and
"followed the [applicable] procedures," and that the accuracy of the
test result (indicating blood alcohol content of .15%) was also corroborated by
the observations of the officer who administered a series of field sobriety
tests to Eastman at the scene of his arrest.
Eastman
has not persuaded us that Wertz--or any other case, statute or
administrative rule--compels the result he urges. Rather, we conclude that the city was not required to
affirmatively prove that the machine used to test his breath had been tested as
required by § 343.305(6)(b)3, Stats.,
or Wis. Adm. Code § Trans 311.10(1), as Eastman argues, and
that the trial court did not err in ruling as it did.
By
the Court.—Judgment affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.
[2] Specifically, Eastman points to
§ 343.305(6)(b)3, Stats.,
which requires the department of transportation to "test and certify the
accuracy of [such] equipment ... before regular use of the equipment and
periodically thereafter at intervals of not more than 120 days," and to Wis. Adm. Code § Trans 311.10(1), which
provides:
(1) All quantitative breath alcohol test instruments ...
shall be tested and certified for accuracy in accordance with the following
standards:
(a) Each instrument
shall be tested and certified for accuracy before regular use and periodically
thereafter pursuant to s. 343.305 [(6)](b)3, Stats.
(b) Each test ...
shall include ... 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.
(c) The original
reports of instrument maintenance and certifications shall be forwarded to and
retained by the department.