State v. Jude W. Giles

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
October 8, 2019
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2018AP1967-CR Cir. Ct. No. 2016CF84

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JUDE W. GILES,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Oneida County:
PATRICK F. O’MELIA, Judge. Affirmed.

¶1 STARK, P.J.1 Jude Giles appeals a judgment, entered following a
jury trial, convicting him of operating a motor vehicle while intoxicated (OWI), as
a second offense. Giles argues the circuit court violated his constitutional right to

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2017-18). All
references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
No. 2018AP1967-CR

present a defense when it prohibited him from introducing at trial the results of a
preliminary breath test (PBT), along with expert witness testimony that relied on
those results. We conclude the court properly prevented Giles from presenting
this evidence. The PBT results were clearly inadmissible under WIS. STAT.
§ 343.303, and our supreme court previously determined in a case involving
similar facts that excluding expert testimony based on PBT results did not violate
the defendant’s constitutional right to present a defense. See State v. Fischer,
2010 WI 6, 322 Wis. 2d 265, 778 N.W.2d 629, superseded by statute on other
grounds, see State v. Jones, 2018 WI 44, ¶¶6-7, 381 Wis. 2d 284, 911 N.W.2d 97.
We therefore affirm Giles’ judgment of conviction.

BACKGROUND

¶2 On April 3, 2016, at approximately 1:00 p.m., a vehicle Giles was
driving rear-ended another vehicle at the intersection of Highways 51 and 47 in
Oneida County. When a police officer arrived at the scene, Giles was outside of
his vehicle. On initially speaking with Giles, the officer observed that Giles’ eyes
were red and glassy and that his speech was somewhat slurred. After speaking
with the driver of the other vehicle, the officer returned to speak to Giles and
noticed a strong odor of intoxicants when standing downwind from Giles. When
the officer confronted Giles about the odor, Giles admitted drinking “some vodka
mixed with soda.”

¶3 At that point, the officer asked Giles to perform three field sobriety
tests, two of which he failed. The officer then administered a PBT, which
measured a breath alcohol concentration of .076. Following the PBT, Giles was
placed under arrest for OWI and was transported to a local hospital where a blood

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draw was performed. Subsequent testing of the blood sample showed a blood
alcohol concentration (BAC) of .144.

¶4 Giles was ultimately charged with four counts: OWI causing injury,
as a second and subsequent offense (Count 1); operating with a prohibited alcohol
concentration (PAC) causing injury, as a second and subsequent offense
(Count 2); OWI, as a second offense (Count 3); and operating with a PAC, as a
second offense (Count 4). Before trial, Giles filed a motion in limine asking that
the defense “be allowed to admit evidence of [Giles’ PBT] results” in order “to
support the expert opinion” of forensic toxicologist Glenn Hardin. Giles asserted
that Hardin would opine—based on the PBT results, the blood test results, and
Hardin’s training and experience—that Giles was “likely in the alcohol absorption
phase” at the time of the PBT and therefore “likely” did not have a BAC over the
legal limit of .08 when he operated his vehicle. Giles further argued that if the
circuit court did not allow him to present this evidence, its ruling would violate his
constitutional right to present a defense.

¶5 The circuit court denied Giles’ motion in limine to admit the PBT
results and Hardin’s testimony based on those results. The court acknowledged
that Giles had a constitutional right to present admissible evidence in his defense.
However, the court reasoned that the PBT results were “inadmissible evidence
under [WIS. STAT. § 343.303] as applied to OWI cases.”

¶6 At trial, Giles testified that he was staying at a friend’s residence on
the day of the accident. At around 8:00 that morning, he got into an argument
with another person at the residence. After that individual left the house, Giles
took two drinks from a bottle containing a mixture of vodka and soda to “help
calm [him] down.” A few hours later, Giles left his friend’s residence intending to

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No. 2018AP1967-CR

go to his parents’ home, which was approximately five minutes away by car.
After getting into his vehicle, he consumed six to eight shots of vodka. He then
began driving, and the accident occurred shortly thereafter. Giles testified that it
normally takes twenty to thirty minutes for alcohol to “hit [his] system” and that
he did not feel woozy after consuming the vodka.

¶7 Hardin testified at trial that for the average person, “half of a dose”
of alcohol is absorbed from the gastrointestinal tract into the bloodstream in
approximately twenty to thirty minutes, and a “full dose takes … an hour to an
hour and a half to be absorbed.” Hardin further testified that “a couple minutes”
after a person consumes alcohol, only about ten percent of the alcohol has been
absorbed into the person’s bloodstream. He also testified that alcohol does not
have any impairing effect on a person until it reaches the brain, and “it has to enter
the bloodstream in order to reach the brain.”

¶8 Based on Giles’ and Hardin’s testimony, the defense argued that
Giles was not operating while intoxicated or with a prohibited alcohol
concentration because the majority of the alcohol that he consumed immediately
before driving had not yet been absorbed into his blood at the time of the accident.
The jury ultimately found Giles guilty of Counts 3 and 4—the OWI and PAC
charges.2 The circuit court subsequently dismissed the PAC charge, pursuant to
WIS. STAT. § 346.63(1)(c). The court sentenced Giles to thirty days in jail on the
OWI charge and imposed a $1570 fine and a thirteen-month license revocation.
Giles now appeals.

2
The jury was unable to reach a verdict on Counts 1 and 2.

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No. 2018AP1967-CR

DISCUSSION

¶9 WISCONSIN STAT. § 343.303 provides, in relevant part, that PBT
results “shall not be admissible in any action or proceeding except to show
probable cause for an arrest, if the arrest is challenged, or to prove that a chemical
test was properly required or requested of a person under s. 343.305(3).” It is
undisputed that this language unambiguously precluded the admission at Giles’
OWI trial of both his PBT results and Hardin’s expert testimony based on those
results. Giles argues, however, that the application of § 343.303 in this case
deprived him of his constitutional right to present a defense.3 This issue presents a
question of constitutional fact, which we review independently. See State v.
St. George, 2002 WI 50, ¶16, 252 Wis. 2d 499, 643 N.W.2d 777.

¶10 The Confrontation and Compulsory Process Clauses of the Sixth
Amendment to the United States Constitution and article I, section 7 of the
Wisconsin Constitution grant defendants a constitutional right to present evidence.
Id., ¶14. However, a defendant’s constitutional right to present evidence is not
absolute. Id., ¶15. “Confrontation and compulsory process only grant defendants
the constitutional right to present relevant evidence not substantially outweighed
by its prejudicial effect.” State v. Pulizzano, 155 Wis. 2d 633, 646, 456 N.W.2d
325 (1990). Moreover, a defendant’s right to present even relevant evidence is not
unlimited and is instead subject to reasonable restrictions. State v. Shomberg,
2006 WI 9, ¶35, 288 Wis. 2d 1, 709 N.W.2d 370. Stated differently, a defendant’s

3
Giles claims he was deprived of his constitutional right to present a defense. However,
he was permitted to raise a defense at trial based upon the delayed absorption of alcohol. The
circuit court simply prohibited him from presenting certain evidence in support of that defense—
i.e., the PBT results and Hardin’s testimony based on those results. Therefore, the claimed
deprivation is of Giles’ constitutional right to present evidence in support of his defense.

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No. 2018AP1967-CR

interest in presenting such evidence may sometimes “bow to accommodate other
legitimate interests in the criminal trial process.” Id. (citation omitted).

¶11 In this case, we conclude—based on our supreme court’s decision in
Fischer—that the exclusion of Giles’ PBT results and Hardin’s associated expert
testimony did not violate Giles’ constitutional right to present a defense. The facts
of Fischer are strikingly similar to those presented here. Fischer was pulled over
on suspicion of OWI. Fischer, 322 Wis. 2d 265, ¶8. A PBT was ultimately
administered and measured a breath alcohol concentration of .11. Id. A
subsequent blood test showed a BAC of .147. Id. Fischer was then charged with
OWI. Id.

¶12 Before his trial, Fischer retained an expert witness who opined,
based in part on the PBT and blood test results, that Fischer “was in the absorptive
phase when he was stopped and that his BAC was increasing” at that time. Id., ¶9.
Fischer’s expert therefore asserted the evidence was consistent with the hypothesis
“that Fischer was below the 0.08% threshold when stopped.” Id. The circuit court
granted the State’s motion to exclude the expert’s report and testimony, on the
grounds that the PBT results were inadmissible under WIS. STAT. § 343.303.
Fischer, 322 Wis. 2d 265, ¶¶10, 13.

¶13 On appeal, Fischer argued the exclusion of his expert witness’s
report and testimony had violated his constitutional right to present a defense.
Id., ¶5. Our supreme court analyzed that argument using the two-part framework
set forth in St. George. See Fischer, 322 Wis. 2d 265, ¶¶27-28. Under the first
part of that framework, a court considers four factors in order to determine
whether the defendant has established “a constitutional right to present the expert
testimony.” Id., ¶28 (citation omitted). If the defendant makes that showing, the

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court then “undertakes the second part of the inquiry by determining whether the
defendant’s right to present the proffered evidence is nonetheless outweighed by
the State’s compelling interest to exclude the evidence.” Id. (citation omitted).

¶14 When applying this two-part analysis to the facts before it, the
Fischer court began by “assum[ing] without deciding” that Fischer had satisfied
the first part of the analysis and had therefore established “a right to present the
expert evidence in question.” Id., ¶29. Nevertheless, the court concluded that
Fischer’s “right to do so [was] outweighed by the State’s compelling interest in
excluding the evidence.” Id. The court reasoned that it was “beyond dispute that
the State has a compelling interest in combating the threat to public safety created
by drunk driving.” Id., ¶32. The court further explained that “[i]n the evidentiary
gap between reasonable suspicion and probable cause for arrest, a voluntarily
taken PBT can furnish the necessary evidence to remove an impaired driver from
the road.” Id. The court therefore concluded that by making PBT results
inadmissible in OWI trials, the legislature “reasonably may have sought to
eliminate any disincentive a driver might have to consent to take the PBT by
assuring drivers that the results would not be used at trial.” Id.

¶15 This case is factually indistinguishable from Fischer. Like Fischer,
Giles was suspected of OWI and was therefore asked to complete a PBT. And like
Fischer, Giles’ PBT showed a lower alcohol concentration than that which was
later measured during a chemical test of his blood. Both Fischer and Giles sought
to use expert testimony, which relied on their PBT results, to show that their
bodies were still absorbing the alcohol they had consumed at the time they drove
and that, as a result, they were not operating while intoxicated. The supreme court
concluded in Fischer that the exclusion of that testimony, pursuant to WIS. STAT.
§ 343.303, did not violate Fischer’s constitutional right to present a defense.

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No. 2018AP1967-CR

Based on the court’s decision in Fischer, we reject Giles’ identical argument in
this case that the circuit court violated his constitutional right to present a defense
when it excluded his PBT results and the associated expert testimony.4

¶16 In the circuit court, Giles noted that the United States District Court
for the Eastern District of Wisconsin ultimately granted Fischer’s petition for a
writ of habeas corpus and vacated his conviction. See Fischer v. Ozaukee Cty.
Circuit Court, 741 F. Supp. 2d 944, 959-60 (E.D. Wis. 2010). The district court
concluded that our supreme court’s decision affirming Fischer’s conviction
“involved an unreasonable application of federal law.” Id. at 958. While Giles
argued below that the district court’s decision in Fischer meant our supreme
court’s decision in that case was no longer good law, he does not renew that
argument on appeal. Moreover, we are not bound by decisions issued by federal
district courts. See State v. Lepsch, 2017 WI 27, ¶34 n.14, 374 Wis. 2d 98, 892
N.W.2d 682; see also State v. Webster, 114 Wis. 2d 418, 426 & n.4, 338 N.W.2d
474 (1983) (observing that a federal decision granting habeas relief to one
defendant did not, in a subsequent case involving a different defendant, “stand as a
precedential bar” to the Wisconsin Supreme Court following one of its previous
decisions, which was contrary to the federal decision). We are instead bound by
decisions of the Wisconsin Supreme Court. See Cook v. Cook, 208 Wis. 2d 166,
189, 560 N.W.2d 246 (1997) (“The supreme court is the only state court with the

4
Giles briefly argues that this case is distinguishable from State v. Fischer, 2010 WI 6,
322 Wis. 2d 265, 778 N.W.2d 629, superseded by statute on other grounds, see State v. Jones,
2018 WI 44, ¶¶6-7, 381 Wis. 2d 284, 911 N.W.2d 97, because the difference between Giles’ PBT
and blood test results was greater than the difference at issue in Fischer. This is a distinction
without a difference. Both Giles and Fischer attempted to use their PBT results to show that they
did not drive while intoxicated because at the time of driving their bodies had not yet absorbed
the alcohol they had consumed. Our supreme court’s analysis in Fischer is therefore equally
applicable here.

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No. 2018AP1967-CR

power to overrule, modify or withdraw language from a previous supreme court
case.”).

¶17 The supreme court’s decision in Fischer therefore determines the
outcome of this case. Accordingly, the circuit court did not violate Giles’
constitutional right to a defense by excluding the PBT results and associated
expert testimony.5

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)4.

5
In the circuit court, the parties raised additional arguments regarding whether the court
would need to hold a Daubert hearing to assess the reliability of the PBT results and associated
expert testimony before admitting that evidence. See Daubert v. Merrell Dow Pharm., Inc., 509
U.S. 579 (1993). Giles obliquely refers to this issue in his brief-in-chief on appeal, but he does
not develop any argument as to whether a Daubert hearing would have been required in order to
admit the PBT results and expert testimony. Regardless, because we conclude the court properly
declined to admit the evidence in question based on WIS. STAT. § 343.303, we need not address
any issue regarding the necessity of a Daubert hearing.

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