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State v. Lanser10/20/1999
Marilyn L. Graves Clerk, Court of Appeals of Wisconsin
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.
APPEAL from a judgment of the circuit court for Walworth County: JAMES L. CARLSON, Judge. Affirmed.
Lana Lanser appeals from a conviction of driving with a prohibited alcohol content (BAC), third offense, contrary to § 346.63(1)(b), Stats. Lanser contends that the trial court erred by limiting her cross-examination of the State's blood alcohol test expert and by admitting the blood alcohol test results into evidence. We disagree and affirm the judgment of conviction.
. Lanser was arrested on August 9, 1997, in the city of Elkorn by Walworth county sheriff's deputies. She was then transported to the Lakeland Hospital where a sample of her blood was obtained for test purposes. Lanser's blood sample was sent to the Toxicology Department of the Wisconsin State Lab of Hygiene where it was tested by chemist Tracy Fritsch. Fritsch testified that a gas chromatograph test on August 12, 1997, indicated that Lanser's blood alcohol level was .122 grams per 100 milliliters. We first address Lanser's complaint that the trial court improperly denied her an opportunity to cross-examine Fritsch as to the integrity of the process used to obtain and test her blood sample.
A. Limiting State Expert
Cross-Examination
. Lanser contends that she has the right to attack the reliability of the blood alcohol testing process as well as the blood test results. We agree. While "a chemical test specified by a statute may not be deemed unreliable as a matter of law," City of Madison v. Bardwell, 83 Wis.2d 891, 900, 266 N.W.2d 618, 622 (1978), a defendant may call witnesses and present evidence to challenge the reliability of the testing procedure used. See County of Milwaukee v. Gliniecki, 123 Wis.2d 462, 367 N.W.2d 239 (Ct. App. 1985) (accuracy of breathalyzer test results due to radio frequency interference); see also State v. McManus, 152 Wis.2d 113, 447 N.W.2d 654 (1989) (accuracy of test results from limited portion of test subject's breath sample).
. However, Lanser did not call an expert witness or present evidence to challenge the reliability of the gas chromatograph process or to challenge Fritsch's testimony. The trial court did not preclude Lanser from cross-examining Fritsch or from presenting a defense, ruling instead on the State's objections as to the relevancy of Lanser's cross-examination questions. Therefore, we address Lanser's concerns by applying the standards of review applicable to a trial court's evidentiary rulings during trial.
. "Evidence which is not relevant is not admissible." Section 904.02, Stats. A defendant does not have a constitutional right to present irrelevant evidence. See State v. Robinson, 146 Wis.2d 315, 332, 431 N.W.2d 165, 171 (1988). The decision to admit or exclude evidence is a matter of trial court discretion. See State v. Pharr, 115 Wis.2d 334, 342, 340 N.W.2d 498, 501 (1983). The scope of cross-examination for impeachment purposes is also discretionary with the trial court. See Rogers v. State, 93 Wis.2d 682, 689, 287 N.W.2d 774, 777 (1980). An erroneous exercise of discretion will not be found if there is a reasonable basis for the trial court's ruling. See Pharr, 115 Wis.2d at 342, 340 N.W.2d at 501.
. Lanser contends that the trial court erroneously exercised its discretion by sustaining the State's objections during cross-examination of Fritsch concerning: (1) the use of cleaning swabs containing alcohol in obtaining blood samples from test subjects; (2) the
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