Jury learning PBT was requested not grounds for mistrial

State v. Dale R. Delvoye, 2017AP833, 7/3/18, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)

At Delvoye’s OWI trial, an officer testified that as part of the stop he asked Delvoye to take a preliminary breath test. Counsel objected and moved for a mistrial. The trial court denied the mistrial, and the court of appeals affirms.

Delvoye’s problem: While Wis. Stat. § 343.303 prohibits the admission of the “result of” a PBT, it doesn’t say anything about the fact that one was requested or taken. In fact, as the court of appeals points out, language that was previously in the statute to that effect has been repealed.

Delvoye argues in his reply brief that the legislature could not have intended such a reading of WIS. STAT. § 343.303, and he insists that allowing admission of requests for preliminary breath tests is bad public policy. Delvoye’s argument ignores both the proper method of statutory interpretation and a clear statutory history to the contrary of his argument. Statutory interpretation must begin with the language of the statute, given the assumption that the enacted language expresses the legislature’s intent. Delvoye does not even attempt an interpretation of the text of § 343.303 that would support his conclusory assertions.

What is more, prior amendments to WIS. STAT. § 343.303 confirm that the plain language of the statute’s current version does not mandate the exclusion of evidence regarding requests for preliminary breath tests. When the legislature amended and recreated WIS. STAT. § 343.303 in 1981, it excluded language that previously did bar the admission of evidence regarding the administration of a preliminary breath test. Compare WIS. STAT. § 343.305(2)(a) (1979-80) (“Neither the results of the preliminary breath test nor the fact that it was administered shall be admissible”) with WIS. STAT. § 343.303 (1981-82) (“the result of this preliminary breath screening test shall not be admissible”). If the legislature specifically removed “administ[ration]” of a breath test from this prohibition, it follows that the current version does not prohibit evidence regarding a request for the administration of such a test. Notably, nowhere in his briefing does Delvoye acknowledge or address this history of the relevant statute, even after the State highlighted it in its response brief. In all, Delvoye offers no plausible interpretation of § 343.303 that supports his argument that Nerat’s testimony violated that statute.

(¶¶11-12(citations omitted)).