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County of Jefferson v. Krause2/20/2003
test. Ultimately, Krause chose to refuse the alternative test, and we conclude that his choice was neither caused by an officer's misstatement or misinformation nor affected by the officer's conduct.
. Krause also challenges the trial court's decision to exclude evidence of the second PBT result. Assuming, without deciding, that the trial court erred in excluding this evidence, Krause's argument fails because any error in this respect was harmless.
. "An erroneous exercise of discretion in admitting or excluding evidence does not necessarily lead to a new trial. The appellate court must conduct a harmless error analysis to determine whether the error `affected the substantial rights of the party.'" Martindale v. Ripp, 2001 WI 113, , 246 Wis. 2d 67, 629 N.W.2d 698. An error affects the substantial rights of the party where "`there is a reasonable possibility that the error contributed to the conviction. A reasonable possibility is a possibility sufficient to undermine our confidence in the conviction.'" State v. Moore, 2002 WI App 245, , __ Wis. 2d __, 653 N.W.2d 276 (quoting State v. Williams, 2002 WI 58, , 253 Wis. 2d 99, 644 N.W.2d 919). When determining whether error is harmless, the reviewing court considers the entire record. State v. Patricia A.M., 176 Wis. 2d 542, 556-57, 500 N.W.2d 289 (1993).
. We conclude that the exclusion of the second PBT result does not undermine our confidence in Krause's conviction. Krause argues that the .14 PBT result casts doubt on the accuracy of the .202 blood test result because a breath test should have yielded a result closer to .18. However, the expert testimony strongly suggests otherwise. Even if the second PBT result had been admitted, Krause's expert would have testified that a blood test is more reliable than a PBT. The expert would not have questioned the accuracy of a blood test result of .20 even though the PBT provided a .14 result. The expert would have explained the PBT device's many limitations, set forth in detail in the factual summary above.
. Accordingly, we conclude that the exclusion of the result of the second PBT, even if error, was harmless error.
By the Court. -- Judgment affirmed.
This opinion will not be published. Wis. Stat. Rule 809.23(1)(b)4.
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