Opinion by Justice Crooks, with Chief Justice Abrahamson, and Justices , Bradley, Crooks, and Prosser [footnotes omitted]
¶2 In its motion in limine, the State sought to exclude the evidence to the extent that it relied on Fischer's PBT results on two grounds: first, that Wis. Stat. §343.303, which prohibits admitting PBT [preliminary breath test] results as evidence in drunk driving cases except for limited purposes that are inapplicable here, means that PBT results cannot be used as the basis for an admissible expert opinion in such a case; and second, that PBT results are not sufficiently reliable to serve as the basis for an expert opinion. Fischer argued that the motion in limine should be denied for two reasons: first, that Wis. Stat. §907.03, which permits an expert to testify as to an opinion regardless of the admissibility of the underlying data on which the opinion is based, is an exception to Wis. Stat. §343.303; and second, that any reading of those statutes that would require the exclusion of the expert's opinion would violate his constitutional right to present a defense. The circuit court and court of appeals ruled that the evidence must be excluded in general on the grounds advanced by the State: that Wis. Stat. §343.303 prohibited the PBT results' use and that PBT results were insufficiently reliable to form the basis of an expert opinion that is admissible under Wis. Stat. §§907.02 and 907.03. Before this court, Fischer expanded his argument to urge the court to abandon the established Wisconsin "limited gatekeeper" approach, where reliability of evidence is a matter for the finder of fact, and instead adopt the federal standard articulated in Daubert v. Merrell Dow Pharmaceuticals, Inc.,[509 U.S. 579, 588 (1993)] where the trial judge has a significant role in determining reliability.Concurrence by Justice Ziegler, with Justices Roggensack and Gableman.
¶7 Our analysis does not turn on an evaluation of the reliability of an expert opinion based on PBT results, which after all are routinely relied on to establish probable cause for arrest and have been held to be admissible for purposes other than those prohibited by statute. Because we conclude that the State's countervailing compelling interest and not the reliability of the expert testimony is dispositive of the analysis, there is no reason for us to revisit Wisconsin's well-established role for the circuit court where expert testimony is proffered. The law in Wisconsin continues to be that questions of the weight and reliability of relevant evidence are matters for the trier of fact. As we stated in State v. Walstad, "This is the relevancy test of our rules and we adhere to it." We, therefore, decline to adopt a Daubert-like approach to expert testimony that would make the judge the gatekeeper.
¶42 ... I conclude that the legislature has spoken, and PBT results are not admissible in an OWI or PAC trial for the purpose of confirming or dispelling a specific alcohol concentration. Even if an expert were to rely upon PBT results to form the basis of an opinion, the test results are still unreliable and inadmissible for the purpose offered in the case at issue. I agree with the majority, however, that this prohibition does not preclude the defense from offering an absorption curve defense. See majority op., ¶6. Still, just as I would not allow the State to introduce this PBT evidence at trial, the defense is precluded from offering an absorption curve defense based upon PBT results. Accordingly, I would conclude as a matter of law that an expert cannot reasonably rely upon PBT results to form an opinion in an OWI or PAC trial.See 2009-2010 Term of the Wisconsin Supreme Court
Right to present defense trumped: Preliminary breath tests inadmissible, by David Ziemer, Wisconsin Law Journal
Supreme Court upholds inadmissibility of preliminary breath tests, by Bill Novak, The Capital Times (via WisPolitics)
Limit on evidence in drunk driving cases upheld, by Alex De Grand, State Bar of Wisconsin