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State v. Gruber3/27/2002
. We reject William J. Gruber's request that he be granted a new trial because the jury was not given the opportunity to consider important evidence that bore on an important issue. Gruber's contention that he was convicted with the use of unreliable evidence is premised on a proposed attack on the accuracy of the Intoxilyzer 5000. Such an attack amounts to nothing more than a new theory of defense and does not justify a new trial in the interest of justice.
. On November 28, 1988, Gruber was arrested for drunk driving ; he submitted to a breath test using the Intoxilyzer 5000 located at the Cedarburg police department; his breath alcohol concentration was 0.09%, which was over the prohibited concentration for any driver with two or more drunk driving convictions. Wis. Stat. §§ 340.01(46m), 343.307(2). After a jury trial, Gruber was convicted and the trial court entered judgment on one count of operating a motor vehicle while intoxicated, third offense, Wis. Stat. §§ 346.63(1)(a) and 346.65(2)(c), and one count of operating a motor vehicle with an alcohol content exceeding 0.08%, §§ 346.63(1)(b) and 346.65(2)(c).
. Gruber filed a timely motion for a new trial. In support of his motion, Gruber filed a letter from a forensic expert whose primary experience was with the Intoxilyzer 5000. The expert stated that based upon the serial number of the machine at the Cedarburg police department, it was one of the oldest Intoxilyzer 5000s in use in Wisconsin. The expert also stated that two years prior to Gruber submitting to the instant test, the Wisconsin State Patrol Chemical Test Section had lost faith in the accuracy of the Intoxilyzer 5000. According to the expert, since the date of Gruber's arrest all of the Intoxilyzer 5000s have been replaced by newer equipment. The expert also stated that under the Wisconsin Administrative Code all breath test equipment, including the Intoxilyzer 5000, must have an accuracy level of plus or minus 0.01. Wis. Admin. Code § Trans 311.06(3)(c). The expert explained that if the tolerance level of plus or minus 0.01% were compared to Gruber's test results of 0.09, it would be possible that because of machine error Gruber could have been below 0.08 at the time of the test. Finally, the expert opined that given the error rate acceptable to the State and the loss of precision and accuracy in an old Intoxilyzer 5000, Gruber would have been below a 0.08 at the time of the test. The trial court denied the request for a new trial, concluding that Gruber had waived the issue because he did not object to the admission of the results from the Intoxilyzer 5000 at trial and that the Intoxilyzer 5000 enjoys a presumption of accuracy. Gruber appeals.
. Gruber recognizes that his failure to object to the admission of the results from the Intoxilyzer 5000 did not preserve the issue and he asks us to use our discretionary power to grant him a new trial. See Vollmer v. Luety, 156 Wis. 2d 1, 20, 456 N.W.2d 797 (1990). He asks us to reverse his conviction and remand to the circuit court for a new trial. His sole claim before us is "that admission of unreliable evidence violated his right to due process; ... because the jury heard evidence it should not have heard, the real controversy was not fully tried." Our discretionary power of reversal is found in Wis. Stat. § 752.35:
In an appeal to the court of appeals, if it appears from the record that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried, the court may reverse the judgment or order appealed from, regardless of whether the proper motion or objection appears in the record and may direct the entry of the proper judgment or remit the case to t
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