State v. Richard M. Fischer, 2008 WI App 152, affirmed , 2010 WI 6
Issue/Holding: The result of a preliminary breath result is categorically inadmissible, § 343.303, so that defense-proffered testimony of an expert who used the result to derive an opinion about the defendant’s blood alcohol concentration was properly excluded, ¶1: “The legislature decided to prohibit admission of PBTs because they are not tested for accuracy at the time the PBT is administered. Prohibiting their use in this OWI trial is in accord with the legislative intent.”
Discussion by court follows, re: difference between “quantitative” (specific measurement) and “qualitative” (mere existence of substance) testing. PBT result falls in the latter category; the PBT isn’t tested for accuracy, but instead ascertains only whether, not in what concentration, alcohol is present:
¶17 Therefore, the testing mechanism for the PBT is simply not designed so the result obtained during the investigation of a possibly intoxicated driver is accurate enough that it can be used to help a jury determine the driver’s guilt or innocence. The legislature did not want the PBT admitted as evidence for that reason. The reason applies whether it is the State that wants to use the PBT results or the defendant who wants to use it. We conclude that the State’s interest in not allowing PBT evidence in the courtroom in OWI trials is legitimate and overrides Fischer’s interest in presenting Dr. Steele’s testimony.The court goes on to say that there is no evidence that scientists “reasonably rely on data that is not designed to be empirically measured with exact accuracy at the time of the test,” ¶23, and although that observation is made almost as a casual aside, it is perhaps the crux of the decision. Perhaps the court meant it as a rhetorical question: it is simply not conceivable that scientists could rely on data generated thusly. The court therefore distinguished between “valid” and “reliable” expert opinions:
¶21 Second, the issue is not the “reliability” of Dr. Steele’s opinion, but the “validity” of his opinion. There is a distinct difference between “reliability” and “validity.” While “reliability” determinations are for the jury under Wisconsin law, “validity” questions are for the circuit court in its limited gate-keeper capacity. …Interesting. Wisconsin’s evidentiary regime generally favors wide-open admissibility, e.g., Green v. Smith, 2000 WI App 192, ¶21, 238 Wis.2d 477, 497, 617 N.W.2d 881 ("Unlike in the federal system, where the trial court has a significant 'gatekeeper' function in keeping from the jury expert testimony that is not reliable ..., the trial court's gatekeeper role in Wisconsin is extremely limited”), affd, 2001 WI 109. There might well be “distinct difference between ‘reliability’ and ‘validity,’” but the court neither grounds it in prior caselaw nor explicitly teases it out. Which isn’t to say that the distinction is, in a word, invalid – only that it isn’t exactly self-evident. If nothing else, though, the distinction gets the court out of the bind created by our status as a non-Daubert state, see also State v. Richard B. Wilkens, 2005 WI App 36, ¶23 (“Wisconsin, unlike the federal courts, considers the reliability of scientific evidence a question of weight and credibility for the trier of fact to decide.”).¶22 Similarly, Dr. Steele can compare the PBT result with a blood test result 100 times and be convinced as to the reliability of his absorption curve analysis. But is his analysis valid? We must answer the question “no” because Fischer’s PBT result is not an empirically tested measurement. …
In any event, the court previously found error in admission of “PBT results without a proper foundation for the jury to interpret this evidence,” State v. Doerr, 229 Wis.2d 616, 626, 599 N.W.2d 897 (Ct. App. 1999): the implication that “a proper foundation” would support inadmissibility is now seemingly eliminated. (Maybe; if a proper foundation could be laid, wouldn’t the categorical statutory proscription raise serious right-to-defense and separation-of-power problems?). Fischer isn’t so much inconsistent with Doerr as that it reaches a conclusion simply not discussed by that case, namely (more or less) that a PBT doesn't yield a sufficiently “valid” result to support admissibility. Doerr simply says, If you can lay a foundation, you can gain admissibility; now, the court is saying, Guess what, you can’t lay a foundation after all.