One reason the job is so easy is the systematic biasing of the citizenry. Unlike most crimes, there is abundant advertisement against drunk driving on TV and and radio. There are campaigns such as, "Buzzed driving is drunk driving". There are statistics thrown around based on the misleading term "alcohol-related". There is intense media focus on the senseless deaths caused by drunk driving.
To be sure, no one is a fan of impaired driving. However, when someone is accused of any offense, whether it be homicide or OWI/PAC, the process of determining guilt or innocence must be fair, for the sake of us all. This two-part series will reveal just a couple of ways that Wisconsin law has stacked the deck against persons charged with OWI/PAC.
Creating bias against OWI/PAC defendants is not the only way the playing field has been skewed: Wisconsin law stacks the deck in favor of prosecutors, giving them pass on the admission of highly-disputed evidence. Other provisions instruct judges and jurors that they can find against OWI/PAC defendants based on scientifically-flawed presumptions. Don't believe me? Continue reading this two-part series. In this segment, I focus on how the law has given prosecutors a pass in admitting BAC evidence from breath-testing devices.
The law in Wisconsin instructs jurors that any BAC testing device approved for use in this state uses a "scientifically sound method of measuring the alcohol concentration of an individual". (See the standard jury instruction below.) For breath testing cases, this means that prosecutors don't even have to prove that the "guilt or innocence box" is scientifically sound. The statutes says it is, and so it is. Well, the State can say whatever it wants, but that does not make it correct, literally or morally.
In an OWI/PAC trial I defended last week, the device at issue was the EC/IR II breath testing machine. That's the only breath-testing device approved for evidentiary testing in Wisconsin. An important issue was whether the test result was inflated by mouth alcohol. (The device is supposed to measure BAC in deep lung breath, not alcohol reintroduced (belched) into the esophagus or mouth.) To begin, the EC/IR II is a device that is (1) tested and maintained by a law enforcement agency, a division of the Wisconsin Highway Patrol; (2) kept at the police stations; and (3) almost always operated by the arresting officer who is seeking a conviction. Not exactly a formula for objectivity.
At an OWI/PAC trial, the State's witnesses will vehemently assert that there is nothing to worry about regarding mouth-alcohol contamination, because, supposedly, the EC/IR II has a devise to detect when mouth alcohol is present. The fact is, the State's witnesses are unable to point to a single study, independent or otherwise, indicating that mouth-alcohol detection reliably works. Moreover, despite having this infallible mouth-alcohol detector, the State's witnesses concede that the machine operator must stare at the subject for at least 20 minutes to ensure he/she is not doing something (belching, regurgitating, vomiting) that could reintroduce alcohol to the esophagus or mouth. If the mouth-alcohol detector works every time, why spend thousands of man hours looking for burps?!
The State has people who travel to the various police stations to conduct mandated 120-day "accuracy checks" and "calibration" of the machines. These are the people who typically testify as experts at the trial. They will quickly agree that they never perform any tests to determine whether the mouth-alcohol detector actually works, and they know of no other study demonstrating the same. Further, the State will not allow anyone else to a have access to one of the machines to do testing to determine the reliability of mouth-alcohol detection.
Wisconsin law requires judges in OWI/PAC trials to admit any breath test administered on the EC/IR II within 3 hours of driving, not matter how unusual that particular test may look (i.e, seven breath samples to get a result). The Judge is also required to instruct the jurors that the test is based upon sound scientific principles. Of course, the prosecutors hammer that point over, and over: "The State of Wisconsin says this thing is scientific and admissible. What more do you need? Convict!" (So, please, don't expect me to prove it. And, ignore all the evidence the defendant is showing you to suggest otherwise.)
Thankfully, some juries remain open minded. In my trial last week, the jury refused to be sold on these tactics. They rejected a .22 test, and for good reasons. Many will not challenge their breath test result because they know the deck is stacked. If the State of Wisconsin wants to use breath testing for OWI/PAC cases, it should prove that it is reliable.
1. Wis JI—Criminal 230, 232 (When an approved testing device is involved, the jury is instructed that "[t]he law recognizes that the testing device used in this case uses a scientifically sound method of measuring the alcohol concentration of an individual. The State is not required to prove the underlying scientific reliability of the method used by the testing device. However, the State is required to establish that the testing device was in proper working order and that it was correctly operated by a qualified person.