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County of Jefferson v. Krause2/20/2003
. James I. Krause appeals a judgment of the circuit court finding him guilty of operating a motor vehicle while under the influence of an intoxicant as a first offense. Krause argues that his conviction should be overturned because (1) the result of his blood test should have been suppressed because the arresting officer did not comply with his request for an alternative test, and (2) the trial court erroneously exercised its discretion in excluding the result of his preliminary breath test (PBT). We disagree with both arguments and affirm.
Background
. Krause was arrested for drunk driving at 3:05 a.m. on September 16, 2001. Preceding his arrest, Krause was administered a PBT in the field. Pursuant to the informed consent law, Krause consented to a test of his blood for alcohol content. After his blood was drawn, Krause requested an alternative test. The officer began preparations to provide Krause with an alternative Intoxilyzer breath test, which included waiting for twenty minutes before administering the test. During the twenty-minute waiting period, Krause asked if he could "have the second test," referring to the one he had taken "on the road." For clarification, an officer showed Krause a PBT device, and Krause agreed that he was requesting a PBT. Krause took the PBT, and was shown the result: .14%. Krause then said that "he did not want any other test and that he would wait for the blood [test] results." In response, the officer asked Krause if Krause was sure he did not want the "alternative" test, and Krause agreed that he "didn't want no further test." At no time did the officer explain the difference between a PBT and a breath test administered via the Intoxilyzer. It is undisputed that an Intoxilyzer result has greater evidentiary value than a PBT result. Krause's blood test revealed an alcohol level of .202%.
. Krause moved to exclude the result of the blood test on the grounds that he was denied his right to an alternative chemical test. Krause also filed a motion in limine to admit the .14 PBT result into evidence. At the hearing on the motion in limine, Krause called a chemist from the Wisconsin Department of Transportation to testify as an expert about the differences between a blood test, a breath test taken with an Intoxilyzer, and a breath test taken with a PBT.
. Krause's expert's testimony included the following. A blood test and an Intoxilyzer test are equivalent in reliability. A PBT result is less reliable than an Intoxilyzer test or a blood test because a PBT lacks a safeguard to ensure that the subject provides a sufficient breath sample, and because a PBT is not tested for accuracy immediately before and immediately after the test. Under ideal conditions, a PBT device would perform the same as the Intoxilyzer. Ideal conditions include (1) maintaining the PBT device at a normal room temperature, (2) a subject who is properly coached, willing, and able to provide a full breath sample, and (3) testing the PBT device for accuracy immediately preceding and immediately following the test. The expert testified that a breath test administered under ideal conditions yields a result 10% lower than a blood test, and thus she would expect a blood test result of .20 to have a corresponding breath test result of about .18. When the expert was asked a hypothetical question-in which a PBT yields a .14 result and a blood test produces a .20 result from the same subject-the expert answered that the blood test result would be more reliable, and that the PBT result would not put the accuracy of the blood test in doubt. Moreover, the expert said it is not unusual to receive a blood test result of .20 and a PBT result of .14 from the same subject.
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