State v. John E. Paul, 2018AP1496, 7/11/19, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)
Paul had three prior OWIs and was on trial for a fourth, plus the associated PAC charge. During voir dire, the prosecutor told the jury that
the other thing is the prohibited alcohol concentration in this particular case is .02. Now, many of you may have heard of the .08, but in this instance, the prohibited alcohol concentration is .02. Now, is there any person here who thinks it’s unfair that somebody could be prosecuted or convicted of the offense of operating a motor vehicle with a prohibited alcohol concentration of .02 percent or .02 grams per 210—I forgot, but per deciliter of the defendant’s breath? So it’s a .02 standard. Is there any person here who thinks that would be unfair?
(¶5). Paul moved for a mistrial, arguing the prosecutor’s statement basically told the jury that he had several priors – a no-no under State v. Alexander, 214 Wis. 2d 628, 644, 571 N.W.2d 662 (1997), where the defendant is willing to stipulate to the lower BAC limit.
The circuit court denied the motion, and the court of appeals affirms. Here’s the nut graf:
There are several problems with Paul’s argument, including the following. First, the prosecutor’s question did not inform the prospective jurors that Paul had prior OWI convictions, and he points to nothing in the record supporting his argument that the question implied as much. Second, neither did the prosecutor’s question provide jurors with any information regarding the .02 limit that they did not already possess—that the .02 limit applied, and that it differed from the .08 limit that jurors might be familiar with. Third, Paul did not stipulate to the validity of the blood alcohol concentration test results until after voir dire had been completed, and he does not now argue that the circuit court erred in informing the prospective jurors of the .02 limit during voir dire. Fourth, Paul does not explain why the court’s reasoning, that the prospective jurors did not likely know why the lower .02 limit applied in this case and that there were several reasons in addition to prior convictions why it might apply, is irrational or wrong as a matter of fact or law.
(¶12)
.02 grams per deciliter (.1 L) of the client’s “breath” rather than blood (or the equivalent of 42 grams per 210 L of breath) was an obvious error in the prosecution’s telling of the legal standard here however.