State v. Luis M. Rocha-Mayo

2014 WI 57

SUPREME COURT OF WISCONSIN
CASE NO.: 2011AP2548-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Luis M. Rocha-Mayo,
Defendant-Appellant-Petitioner.

REVIEW OF A DECISION OF THE COURT OF APPEALS
348 Wis. 2d 262, 831 N.W.2d 824
(Ct. App. 2013 – Unpublished)

OPINION FILED: July 11, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: February 4, 2014

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Kenosha
JUDGE: Wilbur W. Warren III

JUSTICES:
CONCURRED: ZIEGLER, ROGGENSACK, GABLEMAN, JJJ., concur.
(Opinion filed.)
DISSENTED: ABRAHAMSON, C.J. dissents. (Opinion filed.)
PROSSER, J., ABRAHAMSON, C.J., BRADLEY, J.,
dissent. (Opinion filed.)
NOT PARTICIPATING:

ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
by Rex R. Anderegg and Anderegg & Associates, Milwaukee, and
oral argument by Rex R. Anderegg.

For the plaintiff-respondent, the cause was argued by Sally
L. Wellman, assistant attorney general, with whom on the brief
was J.B. Van Hollen, attorney general.
 2014 WI 57
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2011AP2548-CR
(L.C. No. 2008CF660)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent,
FILED
v.
JUL 11, 2014
Luis M. Rocha-Mayo,
Diane M. Fremgen
Defendant-Appellant-Petitioner. Clerk of Supreme Court

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 N. PATRICK CROOKS, J. This is a review of an
unpublished court of appeals decision that upheld Luis M. Rocha-

Mayo's convictions for first-degree reckless homicide by use of

a dangerous weapon, homicide by intoxicated use of a vehicle,

first-degree reckless endangerment by use of a dangerous weapon,

and operating a motor vehicle without a valid license causing

death to another person.1 The convictions stem from a high-speed

collision involving Rocha-Mayo's car and two motorcycles. The

1
State v. Rocha-Mayo, No. 2011AP2548-CR, unpublished slip
op. (Wis. Ct. App. Apr. 24, 2013).
 No. 2011AP2548-CR

collision resulted in the death of one motorcyclist as well as

injuries to Rocha-Mayo.

¶2 During trial, the State introduced the preliminary

breath test (PBT) result obtained from Rocha-Mayo by an

emergency room (ER) nurse for diagnostic purposes. The Kenosha

County Circuit Court, the Honorable Wilbur W. Warren III

presiding, utilized Wis JI——Criminal 11852 in instructing the

2
Wisconsin JI——Criminal 1185 addresses the charge of
"Homicide by Operation of a Vehicle While Under the Influence."
Utilizing a slightly modified version of the instruction, the
circuit court instructed the jury, in part,

If you are satisfied beyond a reasonable doubt that
there was .08 grams or more of alcohol in 210 liters
of the defendant's breath at the time the test was
taken, you may find that the defendant was under the
influence of an intoxicant at the time of the alleged
operating, but you are not required to do so. You the
jury are here to decide this question on the basis of
all the evidence in this case, and you should not find
that the defendant was under the influence of an
intoxicant at the time of the alleged operating,
unless you are satisfied of that fact beyond a
reasonable doubt.

In contrast, the same passage from the standard
Wisconsin JI——Criminal 1185 provides,

If you are satisfied beyond a reasonable doubt that
there was .08 grams or more of alcohol in 210 liters
of the defendant's breath at the time the test was
taken, you may find from that fact alone that the
defendant was under the influence of an intoxicant at
the time of the alleged operating, but you are not
required to do so. You the jury are here to decide
this question on the basis of all the evidence in this
case, and you should not find that the defendant was
under the influence of an intoxicant at the time of
the alleged operating, unless you are satisfied of
that fact beyond a reasonable doubt.

2
 No. 2011AP2548-CR

jury on the PBT result. Over Rocha-Mayo's objection, the State

also offered testimony from Dr. William Falco, an ER physician

who treated Rocha-Mayo. The physician testified that Rocha-Mayo

appeared to be intoxicated at the time he was undergoing

treatment in the ER.

¶3 Rocha-Mayo asks this court to review three issues.

First, whether Wisconsin statutes governing breath alcohol

testing allow admission of a PBT result as evidence of

intoxication in operating while intoxicated (OWI) related trials

when the results are not obtained by law enforcement. Second,

whether the circuit court improperly instructed the jury in

regard to the PBT result. Third, whether the circuit court

erred in allowing an ER physician to testify that Rocha-Mayo

appeared intoxicated while being treated in the ER. The State

asserts that the circuit court did not err in any regard. In

the alternative, the State contends that any circuit court error

was harmless.

¶4 Since we conclude that this case can and should be
resolved by application of a harmless error analysis, we assume,

without deciding, that the circuit court erred when it allowed

the State to admit, as evidence, the PBT result obtained by a

medical professional for diagnostic purposes. Likewise, we

assume, without deciding, that the circuit court erred under

these circumstances in utilizing Wis JI——Criminal 1185 to

instruct the jury on its use of the PBT evidence. We conclude,

(Emphasis added.)

3
 No. 2011AP2548-CR

however, that the circuit court did exercise appropriate

discretion when it allowed Dr. Falco to testify that, based on

his observations and medical experience, Rocha-Mayo was

intoxicated while undergoing treatment in the ER. We agree with

the court of appeals that "[t]he legal concept at issue was

whether Rocha-Mayo was under the influence of an intoxicant at

the time he operated the motor vehicle."3 Dr. Falco's testimony

related only to his observations of Rocha-Mayo in the ER, and he

did not testify about Rocha-Mayo's driving ability on the night

of the accident. In fact, Dr. Falco specifically testified that

he could not give any indication of Rocha-Mayo's level of

intoxication at the time of the accident.

¶5 Although we assume without deciding that the circuit

court erred in admitting the PBT result as evidence and in

instructing the jury in regard to the PBT, we conclude that

these alleged errors were harmless beyond a reasonable doubt.

Even without the PBT evidence, the jury heard evidence of Rocha-

Mayo's level of intoxication from witnesses and from Rocha-Mayo
himself. Rocha-Mayo admitted that he consumed two or three

beers at home and an additional five or six beers at a bar, and

that he was drinking alcohol in his car just prior to the

collision. Dr. Falco and Steven Edwards, an ER nurse, testified

that they could smell alcohol on Rocha-Mayo's breath in the ER.

Finally, Dr. Falco testified that Rocha-Mayo appeared to be

3
State v. Rocha-Mayo, No. 2011AP2548-CR, unpublished slip
op., ¶15 (Wis. Ct. App. Apr. 24, 2013).

4
 No. 2011AP2548-CR

intoxicated while being treated in the ER. We therefore

conclude, beyond a reasonable doubt, that any error by the

circuit court did not contribute to the verdict.

I. Background

¶6 At trial, the facts leading up to the collision were

disputed. We discuss only those facts relevant to our decision.

¶7 On June 22, 2008, Rocha-Mayo left El Rodeo,4 a bar in

Kenosha, Wisconsin, at approximately 2:00 a.m., around the time

of the bar's closing.5 He left the bar in his vehicle and

started traveling west on 52nd Street. Shortly after leaving

the bar, Rocha-Mayo encountered three motorcyclists. One of the

motorcycles in the group also carried a passenger.

¶8 At that point, the descriptions of what happened

diverge; however, a road-rage type incident unfolded in which

Rocha-Mayo and the motorcyclists were driving within close

proximity to one another. At one point one of the motorcyclists

threw a metal baton through Rocha-Mayo's rear window. The

motorcycle carrying two people turned off of 52nd Street. The
other two motorcyclists and Rocha-Mayo continued traveling on

52nd Street at high rates of speed upwards of 70 miles per hour

(mph).

4
Rocha-Mayo also referred to this bar in a statement to
police and during his testimony as "Alas de Oro" and "Oro."
5
The bar's owner and Rocha-Mayo testified that he left
around bar closing time, which occurs at 2:30 a.m. However,
police reports and witness accounts of the accident suggest that
Rocha-Mayo left the bar closer to 2:00 a.m.

5
 No. 2011AP2548-CR

¶9 At the intersection of 52nd Street and Green Bay Road,

Rocha-Mayo's vehicle struck one of the motorcycles. That

motorcyclist later died of his injuries. The other motorcyclist

was uninjured and left the scene of the accident. Rocha-Mayo

also sustained injuries and was taken to St. Catherine's Medical

Center.

¶10 Dr. Falco and Edwards attended to Rocha-Mayo in the ER

and examined him for a possible head injury. Dr. Falco and

Edwards both testified that they could smell alcohol on Rocha-

Mayo's breath. Dr. Falco also testified that he observed Rocha-

Mayo talking rapidly on his phone upon arrival, and that Rocha-

Mayo had a diminished memory of the accident. Rocha-Mayo also

told Dr. Falco that he had been drinking alcohol.

¶11 Due to these observations, Dr. Falco ordered Edwards

to test Rocha-Mayo's breath for the presence of alcohol to

determine whether Rocha-Mayo's symptoms might be alcohol-

related. Edwards performed the PBT and recorded a result of

0.086.6
¶12 Rocha-Mayo sought to exclude the PBT test result from

his trial. He argued that Wis. Stat. § 343.3037 prohibits the

use of PBT results in OWI-related trials. The circuit court

6
Since 2003, the legal limit for driving in Wisconsin has
been 0.08 BAC. See Wis. Stat. § 346.63; 2003 Wis. Act 30, § 1.
However, Wis. Stat. § 346.63(1)(a) generally prohibits driving
under the influence of any intoxicant, which "renders him or her
incapable of safely driving . . . ."
7
This and all subsequent references to the Wisconsin
statutes are to the 2007-08 version unless otherwise indicated.

6
 No. 2011AP2548-CR

denied his motion to suppress the result. The circuit court

reasoned that Wis. Stat. § 343.303 must be read in its entirety,

and that the plain language of the statute applies to PBT

results obtained by law enforcement. Therefore, the circuit

court found that the PBT result was admissible because it was

taken by a medical professional for diagnostic purposes. In

addition, the PBT was not taken at the direction of, or at the

request of, law enforcement. The circuit court pointed out that

no law enforcement officers were present in the ER at the time

Edwards administered the PBT.

¶13 Rocha-Mayo proceeded to trial on the charges of first-

degree reckless homicide by use of a dangerous weapon, homicide

by intoxicated use of a vehicle, and first-degree reckless

endangerment by use of a dangerous weapon. Before trial, he

pleaded guilty to the charge of operating a motor vehicle

without a valid license causing death to another person.

¶14 At trial, the State presented several witnesses who

observed the motorcyclists and Rocha-Mayo on 52nd Street prior
to the collision. These witnesses consistently estimated that

the vehicles were traveling upwards of 70 mph. A police officer

on patrol observed the vehicles just prior to the accident and

testified that all three were driving "recklessly and at a high

rate of speed" that he estimated as between 70 and 80 mph.

¶15 The State also elicited other testimony regarding

Rocha-Mayo's level of intoxication. A police officer who

obtained a statement from Rocha-Mayo read the statement during
her trial testimony. In this statement Rocha-Mayo admitted to
7
 No. 2011AP2548-CR

drinking three beers at his home between 7 p.m. and 9 p.m.

before going to El Rodeo, where, he admitted, he drank another

six beers.8 Rocha-Mayo's statement also provided information

that he purchased two six-packs of beer from the bar as he left

and that he continued to drink an open beer in his car as he

drove away from the bar. A third officer testified that he

inspected Rocha-Mayo's car following the accident and that he

observed one empty beer bottle and five full beer bottles

scattered on the front floorboard of the car.

¶16 The State also called El Rodeo's owner, who worked as

a bartender on the night in question, as a witness. She

testified that she did not recall serving alcohol to Rocha-Mayo

and that she could not remember selling him any packaged

alcohol. On cross-examination, the bar owner testified that

Rocha-Mayo did not appear to be intoxicated, but she then

admitted that her recollection of the evening was poor. When

pressed, she testified that she did not recall Rocha-Mayo

exhibiting any obvious signs of intoxication, such as falling
down.

¶17 The State also presented testimony from Dr. Falco and

Edwards who both testified that they could smell alcohol on

Rocha-Mayo's breath. In addition, Dr. Falco testified that, in

8
Rocha-Mayo testified at trial. His testimony was largely
consistent with his prior statement to police. He testified
that he drank two or three beers at home and then consumed an
additional five or six beers at the bar.

8
 No. 2011AP2548-CR

his professional opinion, Rocha-Mayo was intoxicated at the time

he was treated in the ER.

¶18 A jury found Rocha-Mayo guilty of all charges.9

¶19 The court of appeals affirmed. Like the circuit

court, it found that the plain language of Wis. Stat. § 343.303

applies only to PBT results obtained by law enforcement. It

concluded that the circuit court's decision to allow the PBT

result was a proper exercise of discretion. The court of

appeals also rejected Rocha-Mayo's argument that the circuit

court erred in utilizing Wis JI——Criminal 1185 when instructing

the jury that it could rely on the PBT result as evidence of

intoxication because the instruction allowed, but did not

require, the jury to find that the defendant was under the

influence of an intoxicant at the time of the alleged operating.

Finally, the court of appeals found that Dr. Falco's testimony,

that Rocha-Mayo appeared intoxicated while in the ER, was not

error because he offered no opinion on Rocha-Mayo's state of

intoxication at the time of the accident.
¶20 This case presents four issues. First, whether Wis.

Stat. § 343.303 prohibits the admission of a PBT test result

obtained by a medical professional in an OWI-related trial.

Second, whether the circuit court erred in utilizing Wis JI——

Criminal 1185 to instruct the jury on its use of the PBT

evidence. Third, whether Dr. Falco's testimony, that Rocha-Mayo

9
As previously noted, Rocha-Mayo had pleaded guilty to the
charge of operating a motor vehicle without a valid license
causing death to another person prior to his trial.

9
 No. 2011AP2548-CR

was intoxicated while in the ER, was improper because it

embraced a "legal concept for which a definitional instruction

was required." Finally, whether circuit court error, if any, was

harmless.

¶21 We assume without deciding that the circuit court

erred when it admitted the PBT result and instructed the jury on

that result. Therefore, we first address whether the circuit

court erred in allowing Dr. Falco's testimony. We then turn to

the parties' harmless error arguments.

II. Standard of Review

¶22 We review a prior court's admission of evidence under

the erroneous exercise of discretion standard. State v. Doss,

2008 WI 93, ¶19, 312 Wis. 2d 570, 754 N.W.2d 150. That means we

will not overturn the prior court's determination unless there

is a clear showing of such discretion having been exercised in

an erroneous manner. Id. "A proper exercise of discretion

requires that the circuit court rely on facts of record, the

applicable law, and, using a demonstrable rational process,
reach a reasonable decision." Id.

¶23 Our harmless error analysis requires us to determine

whether the error in question affected the jury's verdict.

State v. Weed, 2003 WI 85, ¶29, 263 Wis. 2d 434, 666 N.W.2d 485.

Therefore, we ask, "Is it clear beyond a reasonable doubt that a

rational jury would have found the defendant guilty absent the

error?" State v. Harvey, 2002 WI 93, ¶46, 254 Wis. 2d 442, 647

N.W.2d 189 (quoting Neder v. U.S., 527 U.S. 1, 18 (1999)).

10
 No. 2011AP2548-CR

III. Analysis
A. Admissibility of Dr. Falco's Testimony

¶24 Rocha-Mayo argues that the circuit court erred when,

over his objection, it allowed Dr. Falco to testify that, in his

expert opinion, Rocha-Mayo was intoxicated at the time he was

treated in the ER. Rocha-Mayo's argument is that Dr. Falco's

testimony was improper because it "embraced a legal concept for

which a definitional instruction was required." The legal

concept to which Rocha-Mayo refers is the definition of "under
the influence of an intoxicant," which was one element of the

charge of homicide by intoxicated use of a vehicle. As to this

charge, the circuit court instructed the jury, "The third

element is the defendant was under the influence of an

intoxicant at the time the defendant operated a vehicle. 'Under

the influence of an intoxicant' means that the defendant's

ability to operate a vehicle was materially impaired because of

consumption of an alcoholic beverage." (Emphasis added.)

¶25 In contrast, the State argues that Dr. Falco never

offered any opinion as to Rocha-Mayo's condition or level of
intoxication at the time of the accident. In fact, the State

points out that Dr. Falco specifically testified that he could

not make any judgment as to Rocha-Mayo's blood alcohol content

at the time he operated his vehicle or his ability to operate a

vehicle.

¶26 Wisconsin Stat. § 907.04 governs "opinion on ultimate

issue." It states, "[t]estimony in the form of an opinion or
inference otherwise admissible is not objectionable because it

11
 No. 2011AP2548-CR

embraces an ultimate issue to be decided by the trier of fact."

Wis. Stat. § 907.04. Both parties agree that Dr. Falco's

testimony was permissible under Wis. Stat. § 907.04. However,

Rocha-Mayo argues that the circuit court erred in allowing Dr.

Falco to testify in regard to his level of intoxication because

the definitional instruction for "under the influence of an

intoxicant" was required.

¶27 The court of appeals has explained that the "ultimate

issue" described in Wis. Stat. § 907.04 cannot "be one that is a

legal concept for which the jury needs definitional

instructions." Lievrouw v. Roth, 157 Wis. 2d 332, 351-52, 459

N.W.2d 850 (1990).

¶28 Here, we conclude that Dr. Falco's testimony complies

with both Wis. Stat. § 907.04 and Lievrouw. This is because the

ultimate issue at stake was whether Rocha-Mayo was intoxicated

at the time of the collision. Furthermore, a significant part

of the defense was that even if Rocha-Mayo was intoxicated while

driving, the accident would have occurred regardless of that
fact.10

¶29 Dr. Falco's testimony was permissible because it did

not embrace the ultimate issue: whether Rocha-Mayo was

10
As we noted previously, Wis JI——Criminal 1185, addresses
the charge of "Homicide by Operation of a Vehicle While Under
the Influence." From this instruction the jury was told,
"Wisconsin law provides that it is a defense to this crime if
the death would have occurred even if the defendant had been
exercising due care and had not been under the influence of an
intoxicant." Wis JI——Criminal 1185.

12
 No. 2011AP2548-CR

intoxicated at the time of the accident. As previously noted,

Dr. Falco's testimony related only to his belief that Rocha-Mayo

was intoxicated while undergoing treatment in the ER.

Furthermore, Dr. Falco did not give any opinion as to Rocha-

Mayo's ability to drive his vehicle safely. In fact, on cross-

examination Rocha-Mayo's counsel specifically asked Dr. Falco if

he could opine on Rocha-Mayo's level of intoxication at the time

of the accident. After explaining that Rocha-Mayo's blood

alcohol level on the night of the accident would have fluctuated

depending on the rate his body metabolized the alcohol, Dr.

Falco responded, "I cannot." Therefore, we conclude that the

circuit court acted appropriately within its discretion when it

allowed Dr. Falco to testify about Rocha-Mayo's state of

intoxication while he was being treated in the ER.

B. Harmless Error

¶30 Rocha-Mayo argues that any circuit court error related

to the PBT evidence or the instruction to the jury regarding the

PBT results cannot be harmless error. We disagree. While we
assume without deciding that admission of the PBT result and the

jury instruction at issue was error, we conclude that these

errors were harmless beyond a reasonable doubt. In other words,

we conclude that admission of the PBT result and the use of

Wisconsin JI——Criminal 1185, in regard to the PBT evidence, did

not affect the jury's verdict. It is clear beyond a reasonable

doubt that the jury would have found the defendant guilty absent

the alleged errors.

13
 No. 2011AP2548-CR

¶31 Under Wisconsin statutes and precedent, harmless error

analysis is applicable to this case. Wisconsin Stat.

§ 805.18(2) provides,

No judgment shall be reversed or set aside or new
trial granted in any action or proceeding on the
ground of . . . the improper admission of evidence . .
. unless in the opinion of the court to which the
application is made, after an examination of the
entire action or proceeding, it shall appear that the
error complained of has affected the substantial
rights of the party seeking to reverse or set aside
the judgment, or to secure a new trial.
(Emphasis added.) Although Wis. Stat. § 805.18 specifically

applies to civil procedure, this statute is applicable to

criminal proceedings through Wis. Stat. § 972.11(1).11 Harvey,

254 Wis. 2d 442, ¶39.

¶32 In Harvey, this court addressed the application of

harmless error analysis in the context of a challenged jury

instruction. Id., ¶6. In doing so, we relied heavily on Neder,

527 U.S. 1. Id., ¶¶35-46. In considering the language of Wis.

Stat. § 805.18, we also relied on the following question when

conducting harmless error analysis: "Is it clear beyond a
reasonable doubt that a rational jury would have found the

defendant guilty absent the error?" Harvey, 254 Wis. 2d 442,

¶46 (quoting Neder, 527 U.S. at 18).

11
The applicable portion of Wis. Stat. § 972.11(1)
provides, "Except as provided in subs. (2) to (4), the rules of
evidence and practice in civil actions shall be applicable in
all criminal proceedings unless the context of a section or rule
manifestly requires a different construction." Subsections (2)-
(4) are not applicable to this case.

14
 No. 2011AP2548-CR

¶33 The following year we again found guidance from Harvey

and Neder in discussing harmless error analysis in the context

of an alleged confrontation clause violation. Weed, 263 Wis. 2d

434, ¶29. In doing so, we again relied on the harmless error

test set forth in Harvey. Id. (citing Harvey, 254 Wis. 2d 442,

¶44).

¶34 Assuming, without deciding, that the circuit court

erred when it allowed admission of the PBT result and the

corresponding jury instruction, we conclude that such alleged

errors were harmless. This is because the jury heard ample

evidence to conclude that Rocha-Mayo was intoxicated at the time

of the accident.

¶35 First, while speed is not necessarily indicative of

intoxication, the jury heard from multiple witnesses who all

testified that Rocha-Mayo and the motorcyclists were driving

recklessly and traveling at high rates of speed. Witnesses

consistently estimated that the vehicles were travelling between

70 and 80 mph along 52nd Street. At the point where a patrol
officer observed the vehicles, the posted speed limit on 52nd

Street was 30 mph.

¶36 In addition, the jury heard evidence of Rocha-Mayo's

level of intoxication. First, the jury heard Rocha-Mayo's

statement to police in which he admitted to drinking three beers

at his home between 7 p.m. and 9 p.m. His statement also

provided that he arrived at El Rodeo around 9 p.m. and that he

consumed an additional six beers before purchasing two six-packs
of beer from the bar as he left. His statement and his
15
 No. 2011AP2548-CR

testimony at trial was that he carried a partially consumed

bottle of beer to his car and finished that beer while driving

his vehicle.12 Rocha-Mayo's statements were confirmed in part by

a police officer who testified that he examined Rocha-Mayo's

vehicle after the accident. This officer found one empty bottle

of beer and five unopened bottles in Rocha-Mayo's vehicle.

¶37 The jury also heard testimony from Dr. Falco and

Edwards who both attended to Rocha-Mayo in the ER. Rocha-Mayo

told Dr. Falco that he had been drinking alcohol immediately

prior to the collision. Dr. Falco and Edwards both testified

that they could smell alcohol on Rocha-Mayo's breath. In

addition, Dr. Falco testified that, based on his observations

and experience, Rocha-Mayo was intoxicated while undergoing

treatment in the ER.13

¶38 Due to other evidence of Rocha-Mayo's intoxication, we

conclude, beyond a reasonable doubt, that admission of the PBT

result and the related jury instruction did not affect the

jury's verdict. Therefore, assuming, without deciding, that
admission of the PBT evidence and use of the corresponding jury

instruction were error, we conclude that those alleged errors

were harmless beyond a reasonable doubt.

12
Rocha-Mayo testified that the beer he finished in his car
was part of the estimated five or six beers that he consumed at
the bar.
13
As noted previously, El Rodeo's owner testified that she
could not recall serving or selling alcoholic beverages to
Rocha-Mayo. She admitted, however, that her memory of that
night was poor.

16
 No. 2011AP2548-CR

IV. Conclusion

¶39 This case can and should be resolved by application of

a harmless error analysis. We assume, without deciding, that

the circuit court erred when it allowed the State to admit, as

evidence, the PBT result obtained by a medical professional for

diagnostic purposes. Likewise, we assume, without deciding,

that the circuit court erred under these circumstances in

utilizing Wis JI——Criminal 1185 to instruct the jury on its use

of the PBT evidence. We conclude, however, that the circuit

court did exercise appropriate discretion when it allowed Dr.

Falco to testify that, based on his observations and medical

experience, Rocha-Mayo was intoxicated while undergoing

treatment in the ER. We agree with the court of appeals that

"[t]he legal concept at issue was whether Rocha-Mayo was under

the influence of an intoxicant at the time he operated the motor

vehicle."14 Dr. Falco's testimony related only to his

observations of Rocha-Mayo in the ER, and he did not testify

about Rocha-Mayo's driving ability on the night of the accident.
In fact, Dr. Falco specifically testified that he could not give

any indication of Rocha-Mayo's level of intoxication at the time

of the accident.

¶40 Although we assume, without deciding, that the circuit

court erred in admitting the PBT result as evidence and in

instructing the jury in regard to the PBT, we conclude that

14
State v. Rocha-Mayo, No. 2011AP2548-CR, unpublished slip
op., ¶15 (Wis. Ct. App. Apr. 24, 2013).

17
 No. 2011AP2548-CR

these alleged errors were harmless beyond a reasonable doubt.

Even without the PBT evidence, the jury heard evidence of Rocha-

Mayo's level of intoxication from witnesses and from Rocha-Mayo

himself. Rocha-Mayo admitted that he consumed two or three

beers at home and an additional five or six beers at a bar and

that he was drinking alcohol in his car just prior to the

collision. Dr. Falco and Steven Edwards, an ER nurse, testified

that they could smell alcohol on Rocha-Mayo's breath in the ER.

Finally, Dr. Falco testified that Rocha-Mayo appeared to be

intoxicated while being treated in the ER. We therefore

conclude, beyond a reasonable doubt, that any error by the

circuit court did not contribute to the verdict.

By the Court.—The decision of the court of appeals is

affirmed.

18
 No. 2011AP2548-CR.akz

¶41 ANNETTE KINGSLAND ZIEGLER, J. (concurring). I join

the majority opinion. I concur and write separately to go

further than the majority opinion and conclude that the plain

language of Wis. Stat. § 343.303 "expressly bars" admission of

preliminary breath test ("PBT") results in trials which involve

operating a motor vehicle under the influence of an intoxicant

("OWI").1 See State v. Fischer, 2010 WI 6, ¶4, 322 Wis. 2d 265,

778 N.W.2d 629. In Fischer the court stated "the legislature's

policy decision regarding the absolute inadmissibility of the

PBT results under these circumstances simply could not be

clearer." Id., ¶25. I wrote separately in Fischer, and concur

in the case at issue, because I conclude that, as a matter of

law, PBT results are neither reliable nor admissible for the

purpose of proving a defendant's intoxication or specific

alcohol concentration when either is an element of the crime

charged.

¶42 While it is indeed true that precedent instructs us

that under some circumstances PBT results may be deemed
admissible, those cases do not approve of the admission of PBT

results as proof of intoxication or a specific alcohol

1
Wisconsin Stat. § 343.303 provides, in relevant part:

The result of the preliminary breath screening test
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).

1
 No. 2011AP2548-CR.akz

concentration when those factors are an element of the crime.2

See State v. Doerr, 229 Wis. 2d 616, 622-25, 599 N.W.2d 897 (Ct.

App. 1999) (agreeing with the circuit court that PBT results

were admissible at trial to assist the jury in evaluating the

defendant's charges of battery to a law enforcement officer in

violation of Wis. Stat. § 940.20(2) and resisting an officer in

violation of Wis. Stat. § 946.41); State v. Beaver, 181

Wis. 2d 959, 969-71, 512 N.W.2d 254 (Ct. App. 1994) (concluding

that PBT results may be admissible at trial as evidence of the

defendant's comprehension of his Miranda rights or his ability

to intelligently waive them).3

¶43 Thus, I conclude that the legislature has spoken and

PBT results are not admissible for the purpose of confirming or

dispelling intoxication or a specific alcohol concentration when

2
For example, in order to find Rocha-Mayo guilty of
homicide by intoxicated use of a motor vehicle, contrary to Wis.
Stat. § 940.09(1)(a) or (b), the State had to prove beyond a
reasonable doubt that he (1) operated a motor vehicle, (2)
caused the death of another by operation of that motor vehicle,
and (3) was either under the influence of an intoxicant or had a
prohibited alcohol concentration at the time he or she operated
the motor vehicle. Wis JI——Criminal 1189. "[A]n alcohol
concentration of more than 0.04 but less than 0.08 is relevant
evidence on the issue of intoxication," Wis. Stat.
§ 885.235(1g)(b), and "an alcohol concentration of 0.08 or more
is prima facie evidence" that the defendant was under the
influence of an intoxicant, § 885.235(1g)(c).
3
I recognize that PBT results are considered admissible at
a probable cause hearing. Wis. Stat. § 343.303; State v. Faust,
2004 WI 99, ¶26, 274 Wis. 2d 183, 682 N.W.2d 371. PBT results
are also utilized as a "screening tool" prior to arrest. See
Cnty. of Jefferson v. Renz, 231 Wis. 2d 293, 313, 603 N.W.2d 541
(1999). Unlike the PBT, however, the Intoxilyzer provides for
chemical testing that is subject to certain safeguards so to
ensure reliability.

2
 No. 2011AP2548-CR.akz

these considerations are an element of the crime. Accordingly,

I would conclude and decide that the PBT results were

inadmissible as a matter of law.

¶44 For the foregoing reasons, I respectfully concur.

¶45 I am authorized to state that Justices PATIENCE DRAKE

ROGGENSACK and MICHAEL J. GABLEMAN join this concurrence.

3
 No. 2011AP2548-CR.ssa

¶46 SHIRLEY S. ABRAHAMSON, C.J. (dissenting). I agree

with Justice Prosser's dissent that it was error for the circuit

court to admit the results of the defendant's preliminary breath

test (PBT)1 as evidence and that it was error for the circuit

court to use the modified jury instruction.2 I join Justice

Prosser's dissent.

¶47 The majority opinion assumes that the admission of the

PBT and the modified jury instruction were erroneous.3

¶48 Justice Ziegler's concurrence agrees with the majority

opinion that the admission of the PBT results can be assumed to

be error. But the concurrence goes further, concluding that the

introduction of the PBT was indeed erroneous; "the PBT results

were inadmissible as a matter of law." Concurrence, ¶43.4 This

concurrence is consistent with Justice Ziegler's concurrence in

State v. Fischer, 2010 WI 6, ¶37, 322 Wis. 2d 265, 778

N.W.2d 629, which states that "as a matter of law PBT results

are neither reliable nor admissible for the purpose of

confirming or dispelling a defendant's specific alcohol
concentration."

¶49 Thus six justices——Justice Ann Walsh Bradley, Justice

David Prosser, Justice Patience Roggensack, Justice Annette

Kingsland Ziegler, Justice Michael Gableman, and I——agree that

1
Justice Prosser's dissent, ¶¶96-111.
2
Justice Prosser's dissent, ¶¶112-118.
3
Majority op., ¶4.
4
See also Justice Prosser's dissent, ¶97 (quoting Justice
Ziegler's concurrence).

1
 No. 2011AP2548-CR.ssa

the circuit court erred in admitting the PBT results in the

present case.

¶50 The majority opinion (joined by Justice Ziegler)

declares the assumed errors to be harmless.5 In contrast,

Justice Prosser's dissent concludes that the errors in the

instant case were not harmless.6 Once again I agree with the

dissent. The PBT results and erroneous jury instruction were

central to the prosecution's case; the errors were prejudicial.

¶51 I write separately, however, to highlight an

additional error, namely the admission of the expert testimony

of Dr. William Falco. The doctor was allowed to give an expert

opinion that the defendant was "intoxicated" when he was in the

emergency room. Such testimony is barred by our jurisprudence

regarding the limits of expert opinion testimony

¶52 The State did not have to prove beyond a reasonable

doubt that the defendant was "intoxicated." Rather, the State

had to prove beyond a reasonable doubt that the defendant was

"under the influence of an intoxicant" while operating the
vehicle.7

¶53 "Under the influence of an intoxicant" is a legal term

of art defined in Wis. Stat. § 939.22(42) to mean "the actor's

ability to operate a vehicle . . . is materially impaired

5
Majority op., ¶5.
6
Justice Prosser's dissent, ¶¶119-134.
7
See Wis. Stat. § 940.09(1)(a) (defining the crime of
"caus[ing] the death of another by the operation or handling of
a vehicle while under the influence of an intoxicant").

2
 No. 2011AP2548-CR.ssa

because of his or her consumption of an alcoholic

beverage . . . ."

¶54 The legal definition of "under the influence of an

intoxicant" is not necessarily the same as a doctor's use of the

word "intoxicated" for purposes of determining proper medical

diagnosis or treatment in a hospital, or the same as the common

usage of the word "intoxicated."

¶55 I now turn to the Wisconsin rules of evidence

governing expert opinion testimony.

¶56 Wisconsin Stat. § 907.04 provides as follows:

Testimony in the form of an opinion or inference
otherwise admissible is not objectionable because it
embraces an ultimate issue to be decided by the trier
of fact.8
8
The 1974 Judicial Council Committee's Note to § 907.04,
Wisconsin Rules of Evidence, 59 Wis. 2d R211, states that the
rule is consistent with Rabata v. Dohner, 45 Wis. 2d 111, 172
N.W.2d 409 (1969). The court declared in Rabata, 45 Wis. 2d at
125 (citing Charles T. McCormick, Some Observations Upon the
Opinion Rule and Expert Testimony, 23 Tex. L. Rev. 109, 118, 119
(1944)), that opinion testimony on ultimate issues could be
barred if phrased as a legal term of art:

[A] court, even though not banning opinions on an
ultimate issue, might nevertheless properly condemn a
question phrased in terms of a legal criterion which
could be misunderstood by the laymen on the jury.
Such questions as, "Did X have sufficient mental
capacity to make a will," or "Was X negligent," would
properly be condemned on this basis——that they would
confuse the jury rather than assist it——and be
excluded from evidence.

Wis. Stat. § 907.04 adopted Federal Rule of Evidence 704
verbatim.

Federal Rule 704 was amended in 1984 to add subsection (b)
as follows:

Rule 704. Opinion on an Ultimate Issue
3
 No. 2011AP2548-CR.ssa

¶57 As the majority opinion acknowledges, an expert

witness cannot give opinion testimony on an ultimate issue "that

is a legal concept for which the jury needs definitional

instructions,"9 although the expert may give opinion testimony as

to an "ultimate issue to be decided by the trier of fact." The

phrase "under the influence of an intoxicant" is a legal concept

and a jury is instructed regarding the legal definition of

"under the influence of an intoxicant."

¶58 The majority opinion acknowledges that the ultimate

issue of whether the defendant was "under the influence of an

intoxicant" under Wis. Stat. § 940.09(1)(a) was one requiring a

specific, definitional jury instruction. Wisconsin JI——Criminal

(a) In General——Not Automatically Objectionable. An
opinion is not objectionable just because it embraces
an ultimate issue.

(b) Exception. In a criminal case, an expert witness
must not state an opinion about whether the defendant
did or did not have a mental state or condition that
constitutes an element of the crime charged or of a
defense. Those matters are for the trier of fact
alone.

For a discussion of the Federal Rule, see Charles Alan
Wright et al., 29 Federal Practice & Procedure: Evidence § 6282
(2d ed. 1997 & Supp.); 1 McCormick On Evidence § 12 (Kenneth S.
Broun ed., 7th ed. 2013).

For other rules of evidence governing admissibility of
expert opinion testimony, see Wis. Stat. ch. 907.
9
Majority op., ¶¶26-27 (citing Wis. Stat. § 907.04 &
Lievrouw v. Roth, 157 Wis. 2d 332, 351-52, 459 N.W.2d 850 (Ct.
App. 1990)).

4
 No. 2011AP2548-CR.ssa

1185, which was given to the jury in the instant case,10 defines

"under the influence of an intoxicant" for the jury as follows:

"Under the influence of an intoxicant" means that the
defendant's ability to operate a vehicle was
materially impaired because of consumption of an
alcoholic beverage.

Not every person who has consumed alcoholic beverages
is "under the influence" as that term is used here.
What must be established is that the person has
consumed a sufficient amount of alcohol to cause the
person to be less able to exercise the clear judgment
and steady hand necessary to handle and control a
motor vehicle.

It is not required that impaired ability to operate be
demonstrated by particular acts of unsafe driving.
What is required is that the person's ability to
safely control the vehicle be materially impaired
(footnote omitted).
¶59 In the instant case, the doctor's testimony used the

term "intoxication" in its medical sense, not the sense of the

legal term of art "under the influence of an intoxicant" as

defined in the statutes and the jury instruction. Dr. Falco

testified that when the defendant entered the emergency room, in

his expert opinion the defendant was intoxicated. The exchange

between the prosecutor and the doctor, over the defense's
objection, ensued as follows:

[PROSECUTOR]: Doctor, over the 13 years where you had
occasion to treat accident patients that have consumed
alcohol, were you able to make a diagnosis of whether
or not they were under the influence of alcohol?

[DOCTOR]: Yes, several times.

[PROSECUTOR]: Do you believe you're qualified to in
this case render that opinion?

10
See majority op., ¶2.

5
 No. 2011AP2548-CR.ssa

[DOCTOR]: I do. I mean, I see intoxicated patients
not in accidents pretty much on a daily basis that
I'm——

[PROSECUTOR]: And when you're looking at those
patients, what are those things that you are looking
at? What are the factors? What are the symptoms of
alcohol intoxication?

[DOCTOR]: Well, their behavior; their——you know, the——
obviously the smell of alcohol on their breath; their
speech, the clarity of their speech; you know, if they
had redness to their eyes; their ability to ambulate
or, you know, walk with the steady gait, things like
that.

[PROSECUTOR]: And based upon your treatment, based on
your experience and medical practice as an emergency
room physician, and your contact and examination and
assessment of this patient, [the defendant], do you
have an opinion as to his state of sobriety?

[DOCTOR]: I do.

[PROSECUTOR]: And what is your opinion?

[The defense objected and was overruled.]

[DOCTOR]: I believe he was intoxicated at the time.

[PROSECUTOR]: And do you hold that opinion to a
reasonable degree of scientific and medical certainty?

[DOCTOR]: I do.
¶60 Expert opinion testimony? Check. Ultimate issue in

the case? Check. Requiring a definitional jury instruction?

Check.

¶61 Nonetheless, the majority opinion in the instant case

permits the doctor's testimony about the defendant's

intoxication when he entered the emergency room.

¶62 The majority opinion creatively but fallaciously
reasons that the testimony is admissible because the doctor

6
 No. 2011AP2548-CR.ssa

"never offered any opinion as to [the defendant's] condition or

level of intoxication at the time of the accident."11

¶63 The State defends the admission of the doctor's

testimony on the grounds that the doctor never offered an

opinion as to whether the defendant's ability to safely control

the vehicle was materially impaired.

¶64 True, the doctor did not express an opinion about the

defendant's intoxication at the time of the accident or about

the defendant's ability to operate a vehicle. So, I ask, what

is the relevance of the doctor's expert opinion about the

defendant's intoxication in the emergency room? Is it relevant

because it enables a jury to infer from the doctor's testimony

that the defendant, who was intoxicated at the hospital, had a

materially impaired ability to operate a vehicle at the time of

the accident? It seems to me this must be the unstated

rationale. Is this inference permissible? No! Why not?

Because the doctor's medical definition of "intoxicated" for

purposes of medical diagnosis and treatment at the emergency
room is different than the legal definition of "under the

influence of an intoxicant."

¶65 Admitting the doctor's expert testimony in the present

case leads the jury to the mistaken belief that "intoxication"

as used by a doctor as a medical term is the same as the legal

term of art "under the influence of an intoxicant."

¶66 How can the jury make the inferential leap from the

doctor's expert opinion about intoxication for medical diagnosis

11
Majority op., ¶25 (emphasis added).

7
 No. 2011AP2548-CR.ssa

and treatment purposes to finding beyond a reasonable doubt that

the defendant was "under the influence of an intoxicant" as a

defined legal element of the crime?

¶67 The doctor's testimony therefore does not assist the

trier of fact under the relevance-assistance standard of Wis.

Stat. § 907.02(1).12 Indeed, the doctor's testimony confuses,

rather than assists, the jury.

¶68 To avoid jury confusion, the rules of evidence and the

case law militate against the admission of expert testimony on

legal concepts or terms of art. Analyzing our case law,

Professor Blinka's treatise wisely advises that when weighing

whether expert testimony phrased in terms of legal standards is

admissible, "a prime consideration is whether the concept under

consideration is a peculiarly legal construct or one that is

also rooted in common usage."13

12
Wisconsin Stat. § 907.02(1) provides:

(1) If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify
thereto in the form of an opinion or otherwise, if the
testimony is based upon sufficient facts or data, the
testimony is the product of reliable principles and
methods, and the witness has applied the principles
and methods reliably to the facts of the case.

The rules of evidence thus exclude the doctor's opinion in
the present case, not only as violating Wis. Stat. § 907.04 and
our case law, but also as not helpful to the trier of fact and
as a waste of time.
13
7 Daniel D. Blinka, Wisconsin Practice Series: Wisconsin
Evidence § 702.603 (3d ed. 2008).

8
 No. 2011AP2548-CR.ssa

¶69 Professor Blinka cites Lievrouw v. Roth, 157

Wis. 2d 332, 351-52, 459 N.W.2d 850 (Ct. App. 1990), as does the

majority opinion.14 The Lievrouw court ruled that an expert

witness's opinion may not be admissible on a "legal concept for

which the jury needs definitional instructions." In Lievrouw,

the court determined that a witness's opinion regarding the

existence of an "emergency" was admissible because "emergency"

was not defined for the jury and was not a "term of art."15

¶70 By admitting the doctor's expert opinion testimony on

the defendant's intoxication, the circuit court permitted

exactly the kind of confusing expert testimony on an ultimate

legal concept that was held inadmissible under Lievrouw.

¶71 More can be and has been written on the meaning,

application, continued vitality, and nuances of Wis. Stat.

§ 907.04 and the proper phrasing of questions for the expert to

comply with the rule. For the purposes of this dissent in the

present case, I do not write on the rule at length. I think it

important to engage this issue, point out the problems with the
majority opinion's discussion, and foster discussion of the

rule.

¶72 For the foregoing reasons, I join Justice Prosser's

dissent and write separately.

14
Majority op., ¶¶26-27 (citing Wis. Stat. § 907.04 and
Lievrouw, 157 Wis. 2d at 351-52).
15
Lievrouw, 157 Wis. 2d at 351-52.

9
 No. 2011AP2548-CR.ssa

10
 No. 2011AP2548-CR.dtp

¶73 DAVID T. PROSSER, J. (dissenting). The majority

opinion has been constructed to present a black and white

picture of a reckless defendant. Unfortunately, there is more

to the story. The facts left out are not pretty, and their

ugliness helps explain why a Kenosha County jury deliberated

about 20 hours, over four days, before reaching a verdict.

¶74 When a jury deliberates for 20 hours on a seemingly

simple case, something about the case has troubled them. When a

jury has deliberated for 20 hours before convicting a defendant,

facile assurances that critical errors in the trial were

harmless to that defendant can be unpersuasive and unsettling.

For the reasons stated below, I believe this defendant should be

given a new trial. Consequently, I respectfully dissent.

FACTUAL BACKGROUND

¶75 The defendant in this case, Luis M. Rocha-Mayo, was 19

years old at the time of the accident. He was an undocumented

immigrant from Mexico whose primary language is Spanish and who

required an interpreter throughout the criminal proceedings.

The jury knew that many months had passed between the charges

and the trial.1 None of this affected the jury's conscientious

consideration of the case.

¶76 On June 21, 2008, the defendant was at his apartment

with family. Between 7 p.m. and 9 p.m. he consumed three beers.

About 9 p.m., the group traveled in separate cars to El Rodeo, a

1
Rocha-Mayo was in custody, on $100,000 bond, from the time
of his arrest until the time of trial, and he received 865 days
of credit on the ten years of confinement in his bifurcated
sentence.

1
 No. 2011AP2548-CR.dtp

bar at the corner of 14th Avenue and 52nd Street in Kenosha.

Over the next five hours, the defendant consumed five beers and

ordered a sixth, which he partially consumed at the bar and took

with him to finish in his car when he left at 2 a.m.

¶77 Thus, between 7 p.m. on June 21 and 2 a.m. on June 22—

—seven hours——the defendant consumed at least nine beers. He

claimed also that between the initial three beers and the last

six beers he drank some soda. The defendant's drinking is not

in dispute; the effect of his drinking is.

¶78 When the defendant left El Rodeo, he pulled his

vehicle onto 52nd Street and proceeded west, intending to return

to his apartment on 40th Avenue. Within a few blocks, three

motorcycles entered 52nd Street from the parking lot for Coins

Tavern, which has an address of 1714 52nd Street.

¶79 The defendant's version of the story is that a

motorcycle carrying two people, Curtis Martin (Martin) and

Shawna Bestwick (Shawna), merged into the right lane directly in

front of the defendant's vehicle. Two other motorcycles then

entered the street immediately behind the defendant's vehicle.

One of these cycles was driven by Travis Bestwick (Bestwick);

the other was driven by Jason Walters (Walters). Bestwick was

Shawna's brother. He was riding Martin's motorcycle, and Martin

was riding Bestwick's motorcycle, because Bestwick's cycle was

better suited for carrying a passenger.

¶80 The motorcyclists had been riding as a group, and

apparently Bestwick and Walters became offended when members of
the group were separated by Rocha-Mayo's car. Walters pulled up

2
 No. 2011AP2548-CR.dtp

parallel to the defendant's car, alongside the driver's window.

He yelled at Rocha-Mayo with an obscenity and gestured for him

to pull over. Martin and Shawna heard the yelling behind them

and then turned off on 25th Avenue in a maneuver that enabled

them to end up behind the defendant's car with the other

motorcycles. The defendant's brief reads in part as follows:

At this point, Rocha Mayo testified, he sensed
Walters and his group were looking for trouble and the
situation felt threatening. Realizing he now had
three cycles around him, and believing them all in a
mood to harm him, Rocha Mayo did not pull over as
Walters demanded. Instead, he resolved to continue
home, which required he remain on 52nd Street and turn
right at 40th Avenue. He therefore continued
westbound at the approximate speed limit, just hoping
to get home.
¶81 Walters pulled back behind Rocha-Mayo's car. He

reached into his jacket for an expandable metal baton and

flicked it open with the wrist of his right hand. He then

accelerated his bike to the left of the defendant's car and

launched the metal baton at the car's rear window while

traveling at high speed. The baton shattered the rear window of

the car and landed on the floor in front of the passenger's
seat. Glass fragments flew throughout the car. Bestwick

followed Walters past the defendant's car. The defendant's

brief explains:

From Rocha Mayo's perspective, his premonition of
danger suddenly became a rude reality when his rear
window exploded as two cycles roared by him on the
left. The explosion caused Rocha Mayo to momentarily
duck and he was convinced he was going to get hit.
When he regained his wits, he instinctively
accelerated because another cycle was behind him, in
addition to the two cycles now in front of him, and he
was scared. He feared another assault from the rear.
3
 No. 2011AP2548-CR.dtp

Although still in the right lane and somewhere near
30th and 33rd Avenues, he resolved not to turn off on
40th Avenue so the cyclists would not learn where he
lived.
¶82 After Walters' baton shattered Rocha-Mayo's window,

Rocha-Mayo and the two motorcycles in front of him speeded

westward on 52nd Street at approximately 70 miles per hour. The

third motorcycle followed for several blocks, then turned off on

39th Avenue. Rocha-Mayo testified, however, that he continued

to believe he was being pursued by the third cycle, so that he

thought he had two cycles ahead of him and one cycle behind him.

As noted, he did not slow down to turn off on 40th Avenue,

allegedly because he was afraid he would be followed to his

apartment.

¶83 The ostensible "race" with the three vehicles on 52nd

Street continued for more than 20 blocks until the vehicles came

to the intersection with Green Bay Road. The defendant's brief

reads as follows:

As the vehicles approached that intersection, the stop
light for westbound traffic was red . . . . The two
westbound lanes, that were also free of traffic,
widened first to three lanes (a dedicated left turn
lane) and then to four lanes (a shorter dedicated
right turn lane). . . . Rocha Mayo believed he still
had a third cycle behind him. . . .

As the vehicles neared the intersection, Bestwick
and Walters, via hand signals (but unbeknownst to
Rocha Mayo), decided to attempt a right turn onto
North Green Bay Road, a maneuver the State's accident
investigator agreed would have been impossible at
their speed. Rocha Mayo was still in the right hand
lane and from his perspective, Walters and Bestwick
were off to the left in front of him. Suddenly
Walters braked, but realized a turn would be
impossible, and wound up sliding into and stopping in
the middle of the intersection. Bestwick, however,

4
 No. 2011AP2548-CR.dtp

attempted the turn and moved to the right, directly in
front of Rocha Mayo's vehicle, while braking. Rocha
Mayo could not react fast enough to avoid striking
Bestwick.
¶84 Rocha-Mayo's vehicle collided with Bestwick's

motorcycle. Bestwick, who had not been wearing a helmet, was

thrown from the cycle and eventually died of blunt force trauma

to the head. Rocha-Mayo was injured in the crash, was found by

police lying in pain in nearby grass, and like Bestwick, was

transported to a hospital.

¶85 Walters, according to testimony at the trial, came to

a complete stop in the intersection, looked around from the

vantage point where he could see both vehicles at a complete

rest, with Bestwick lying in the street. Walters then took off

southbound on Green Bay Road as a police car approached.

¶86 Walters called Shawna about the accident, and she and

Martin quickly drove to the accident scene. However, they left

without telling police of their knowledge or involvement and

waited more than 19 hours before contacting authorities. When

they came to talk, the motorcyclists blamed the tragic events
entirely on Rocha-Mayo. Whether the motorcyclists had been

operating under the influence was never established, in large

part because they absented themselves from authorities. None of

the motorcyclists, including the baton-launching Walters, was

ever charged with any offense.2

2
Motorcycles have been a rich and important part of
Wisconsin history. Nothing in this dissent is intended to imply
any criticism whatsoever of the overwhelming number of
responsible motorcycle owners and operators in this state.

5
 No. 2011AP2548-CR.dtp

¶87 Bestwick died on Sunday, June 22, 2008. The following

day, Rocha-Mayo was charged with second-degree reckless homicide

with a dangerous weapon, contrary to Wis. Stat. §§ 940.06(1),

939.50(3)(d), and 939.63(1)(b), a Class D felony.

¶88 Following a preliminary examination on July 2, 2008,

the State filed an information charging Rocha-Mayo with three

offenses:

(1) First-degree reckless homicide, with use of a

dangerous weapon, contrary to Wis. Stat. §§ 940.02(1),

939.50(3)(b), and 939.63(1)(b), a Class B felony instead of

the Class D felony originally charged.

(2) First-degree reckless endangerment, with use of a

dangerous weapon, contrary to Wis. Stat. § 941.30(1),

939.50(3)(f), and 939.63(1)(b), a Class F felony. The

information asserted that Rocha-Mayo "did recklessly

endanger the safety of Jason A. Walters, under

circumstances which show utter disregard for human life."

(3) Operating without a valid license causing death

to another person, contrary to Wis. Stat. §§ 343.05(5)(b)3d

and 939.51(3)(a), a Class A misdemeanor.

¶89 Seven months later, on February 11, 2009, the State

moved the circuit court to amend the information to add a fourth

charge of homicide by intoxicated use of a motor vehicle,

contrary to Wis. Stat. §§ 940.09(1)(a) and 939.50(3)(d), a Class

D felony. The motion was granted by Circuit Judge Bruce

Schroeder. In his motion, District Attorney Robert Zapf wrote:

At the court hearing on the defendant's motion to
adjourn the trial date, the Court inquired whether the
6
 No. 2011AP2548-CR.dtp

State was intending to pursue any alcohol related
charges. At that time, this writer advised the Court
that I did not think the BAC test performed by the
hospital would be admissible. However, your affiant
has reviewed all of the evidence and reconsidered its
original position.
¶90 Rocha-Mayo thereafter successfully moved Judge

Schroeder to recuse himself from the case. Judge Wilbur W.

Warren III was assigned to the case.

¶91 The facts stated above closely follow the defendant's

brief and obviously convey the defendant's perspective on some

of the facts. Significantly, however, the State did not rewrite

the statement of facts. Rather, the State said:

Rocha-Mayo's statement of facts consists largely of
facts about the criminal incident itself, from the
viewpoint most favorable to him. Because the criminal
incident facts are not directly pertinent to the legal
issues, the State will not present a counter statement
of criminal incident facts. By declining to do so,
the State does not in any way intend to agree with
Rocha-Mayo's partisan presentation of the facts. The
evidence presented, viewed in the light most favorable
to the State as it must be after conviction, was
sufficient to prove Rocha-Mayo guilty beyond a
reasonable doubt.
¶92 The facts above, presented in large part from the

defendant's perspective, are damaging to the defendant. But

they also suggest the possibility that Bestwick's tragic death

would not have happened but for actions initiated by Walters and

the other motorcyclists. This was Rocha-Mayo's explanation from

the day of his arrest and his defense throughout the trial. It

underlies his position now. Consequently, the issues presented

in this review are integrally related to the specific felonies
with which Rocha-Mayo was charged and convicted, and the

specific facts leading up to Bestwick's death. If the issues
7
 No. 2011AP2548-CR.dtp

presented by the defendant reveal errors in the trial, it is

very, very difficult to assert that these errors did not

"contribute" to the verdict.

ADMISSIBILITY OF THE PBT RESULT

¶93 Rocha-Mayo states his first issue as follows: "whether

Wisconsin's breath testing regimen allows the State to present

evidence of a PBT result in an OWI prosecution to quantitatively

prove the defendant was under the influence of an intoxicant,

simply because the PBT was not administered by law enforcement."

¶94 Following the accident, Rocha-Mayo was taken to the

emergency room at St. Catherine's Medical Center. The State's

brief states that Rocha-Mayo was strapped to a backboard and had

swollen lips and blood on his face; he was confused and emitted

an obvious odor of alcohol. The State's brief goes on to

describe how Dr. William Falco, the emergency room doctor,

almost immediately ordered the emergency room nurse, Steven

Edwards, to do a breath alcohol test to try to determine whether

Rocha Mayo's confusion was caused by a head injury or alcohol.

The defendant's brief states, "Nurse Edwards complied, Rocha

Mayo consented and cooperated, and a PBT test result of 0.086

was taken. It was a single sample test."

¶95 Prior to trial, Rocha-Mayo moved to suppress the

result of the PBT obtained at the hospital emergency room.

Rocha-Mayo argued that the result of the test was inadmissible

under Wis. Stat. § 343.303. After a hearing, the circuit court

disagreed and admitted the test result at trial.

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¶96 This issue——the admissibility of the PBT result in a

trial involving traffic-related offenses, including homicide by

intoxicated use of a motor vehicle——is surely the reason the

court took this case. Significantly, no one on the court is

prepared to say that the circuit court correctly admitted the

evidence.

¶97 In State v. Fischer, 2010 WI 6, ¶4, 322 Wis. 2d 265,

778 N.W.2d 629, the court unanimously held that "Wisconsin Stat.

§ 343.303 expressly bars PBT results in OWI cases." After

joining the opinion, Justice Ziegler concurred, stating, "I

conclude that as a matter of law PBT results are neither

reliable nor admissible for the purpose of confirming or

dispelling a defendant's specific alcohol concentration in an

OWI or PAC trial." Id., ¶37 (Ziegler, J., concurring, joined by

Justices Roggensack and Gableman).

¶98 In her concurrence in the present case, Justice

Ziegler adds that "the legislature has spoken and PBT results

are not admissible for the purpose of confirming or dispelling

intoxication or a specific alcohol concentration when these

considerations are an element of the crime." Concurrence, ¶43.

¶99 Against this background, the majority nonetheless is

willing to decide the case by assuming, without deciding, "that

the circuit court erred when it allowed the State to admit, as

evidence, the PBT result obtained by a medical professional for

diagnostic purposes," majority op., ¶4, and then affirming

Rocha-Mayo's convictions on the basis of harmless error.

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¶100 In this case, assuming error rather than deciding

error has the unfortunate effect of ducking a vital issue that

should be decided and burying the reasons for an

"inadmissibility" ruling.

¶101 Wisconsin Stat. § 343.303 reads as follows:

Preliminary breath screening test. If a law
enforcement officer has probable cause to believe that
the person is violating or has violated s. 346.63(1)
or (2m) or a local ordinance in conformity therewith,
or s. 346.63(2) or (6) or 940.25 or s. 940.09 where
the offense involved the use of a vehicle, or if the
officer detects any presence of alcohol, a controlled
substance, controlled substance analog or other drug,
or a combination thereof, on a person driving or
operating or on duty time with respect to a commercial
motor vehicle or has reason to believe that the person
is violating or has violated s. 346.63(7) or a local
ordinance in conformity therewith, the officer, prior
to an arrest, may request the person to provide a
sample of his or her breath for a preliminary breath
screening test using a device approved by the
department for this purpose. The result of this
preliminary breath screening test may be used by the
law enforcement officer for the purpose of deciding
whether or not the person shall be arrested for a
violation of s. 346.63(1), (2m), (5) or (7) or a local
ordinance in conformity therewith, or s. 346.63(2) or
(6), 940.09(1) or 940.25 and whether or not to require
or request chemical tests as authorized under s.
343.305(3). The result of the preliminary breath
screening test 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). Following the screening
test, additional tests may be required or requested of
the driver under s. 343.305(3). The general penalty
provision under s. 939.61(1) does not apply to a
refusal to take a preliminary breath screening test.
¶102 The most important sentence in this section is: "The
result of the preliminary breath screening test shall not be

admissible in any action or proceeding except to show probable
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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)." Id. (emphasis added).

¶103 The title of § 343.303 is "Preliminary breath

screening test." The phrase "preliminary breath screening test"

appears four times in the text of the section. The key word

among the four words is "preliminary," and that word is wholly

consistent with the expectation that "additional tests may be

required or requested of the driver under s. 343.305(3)." Id.

¶104 Wisconsin Stat. § 343.305 is entitled "Tests for

intoxication; administrative suspension and court-ordered

revocation." This section outlines the tests for intoxication

that are admissible in evidence in traffic-related prosecutions.

Wisconsin Stat. § 343.305(5)(d) provides in part:

[T]he results of a test administered in accordance
with this section are admissible on the issue of
whether the person was under the influence of an
intoxicant . . . to a degree which renders
him . . . incapable of safely driving . . . or any
issue relating to the person's alcohol concentration.
Test results shall be given the effect required under
s. 885.235.3

3
Wisconsin Stat. § 885.235(1g) reads in part:

In any action or proceeding in which it is
material to prove that a person was under the
influence of an intoxicant . . . evidence of the
amount of alcohol in the person's breath, is
admissible on the issue of whether he . . . was under
the influence of an intoxicant or had a prohibited
alcohol concentration or a specified alcohol
concentration if the sample was taken within 3 hours
after the event to be proved. The chemical analysis
shall be given effect as follows without requiring any
expert testimony as to its effect:

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These tests include taking a sample of the person's breath,

consistent with the "techniques or methods of performing

chemical analysis of the breath" set out in Wis. Stat.

§ 343.305(6)(b) and (c).

¶105 The Department of Transportation's (DOT)

administrative rules, as required by statute, Wis. Stat.

§ 343.305(6)(b), spell out in detail the approved techniques and

methods for performing chemical analysis of the breath. See

Wis. Admin. Code § TRANS 311.06 (Mar. 2012). Much of Rocha-

Mayo's argument seeks to show that the test taken at the

hospital emergency room, the result of which was admitted at

trial, did not satisfy the requirements set out in statute and

rules, thereby rendering the result not only inadmissible but

also unreliable.

¶106 The distinction between breath tests admissible under

Wis. Stat. § 343.305(5)(d) and Wis. Stat. § 885.235 and PBTs

inadmissible under Wis. Stat. § 343.303 is highlighted in Wis.

Admin Code § TRANS 311 in the definition section, which

distinguishes "Quantitative breath alcohol analysis" from

"Qualitative breath alcohol analysis."

¶107 "'Qualitative breath alcohol analysis' means a test of

a person's breath, the results of which indicate the presence or

. . . .

(c) The fact that the analysis shows that the
person had an alcohol concentration of 0.08 or more is
prima facie evidence that he . . . was under the
influence of an intoxicant and is prima facie evidence
that he . . . had an alcohol concentration of 0.08 or
more.

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absence of alcohol." Wis. Admin. Code § TRANS 311.03(12) (Mar.

2012). "'Quantitative breath alcohol analysis' means a chemical

test of a person's breath which yields a specific result in

grams of alcohol per 210 liters of breath." Wis. Admin. Code

§ Trans 311.03(13) (Mar. 2012). Wisconsin Admin. Code § TRANS

311.06(2) explains that "[t]echniques used in performing

quantitative breath alcohol analysis shall be those which are

designed to assure accuracy, detect malfunctions and to

safeguard personnel and equipment." (Emphasis added.)

Wisconsin Admin. Code § TRANS 311.06(5) provides only that

"[m]ethods and techniques used in performing qualitative breath

alcohol analysis shall be approved by the department."

(Emphasis added.)

¶108 In testimony at trial, Susan Hackworthy, chief of the

chemical test section, Division of State Patrol, in the DOT,

explained that "The qualitatives are PBT and the quantitatives

are evidential." She also testified that the Alco-Sensor IV,

the PBT device used at St. Catherine's Medical Center, is not

certified by the DOT for evidentiary use in Wisconsin courts and

that the DOT does not certify breath testing devices in the

private sector.

¶109 Rocha-Mayo's trial counsel cross-examined Hackworthy

on various procedures in the administrative rules designed to

assure accuracy in test results and to avoid error——procedures

that are required to be followed in "evidential" tests but are

not part of the ordinary regimen for PBTs. The State's expert
grudgingly acknowledged: "A preliminary breath test is generally

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not allowed in an OWI trial in front of a jury." She further

acknowledged in response to hypothetical questions that in the

absence of certain protocols, a breath test would not satisfy

State Patrol guidelines for evidence. In this case, several of

the protocols were not met in the hospital PBT, including an

assurance that Rocha-Mayo did not have an unusual amount of

mouth alcohol because of his recent drinking or the accident,

which affected both his head and his chest.

¶110 To sum up, Wis. Stat. § 343.303 provides that a

preliminary breath screening test is not admissible in any

action or proceeding except as authorized by that statute. When

court decisions have deviated from this statutory directive,

they have deviated only in cases that did not involve traffic

enforcement and did not require a quantitative analysis that

shows "a specific result in grams of alcohol per 210 liters of

breath." Wis. Admin. Code § TRANS 311.03(13) (Mar. 2012). In

this case, the admission of the PBT result does not fit within

any plausible exception to the statutory directive and comes

with few of the protocols that assure the integrity and

reliability of the tests authorized by Wis. Stat. § 343.305(3).

¶111 Wisconsin Stat. § 343.303 creates a regimen that

encourages a driver's cooperation with law enforcement inasmuch

as the test result is inadmissible, except as provided by

statute, and a refusal to take the PBT strengthens the probable

cause for an arrest. Permitting the results of PBTs taken in

hospital settings to be used later against hospital patients in
court will engender distrust between doctors and patients and

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create disincentives for patients to comply with the requests of

their doctors. Once courts open the door to use of PBT results

without safeguards and without legislative authorization,

evasions of the directive in § 343.303 will become commonplace,

and the essential purpose of the statute will be thwarted.

CORRECTNESS OF MODIFIED JURY INSTRUCTION 1185

¶112 Rocha-Mayo's second issue is "whether it was error to

instruct the jury it could find, based solely on a qualitative

test result, that Rocha-Mayo was intoxicated at the time of the

accident."

¶113 The majority's response to this question is, "[W]e

assume, without deciding, that the circuit court erred under

these circumstances in utilizing Wis JI——Criminal 1185 to

instruct the jury on its use of the PBT evidence," majority op.,

¶4, but the error was harmless beyond a reasonable doubt. Id.,

¶5.

¶114 The circuit court gave the following instruction in

relation to the third element of the offense charged under Wis.

Stat. § 940.09(1)(a), namely, that the defendant was under the

influence of an intoxicant at the time the defendant operated a

vehicle.

The third element is the defendant was under the
influence of an intoxicant at the time the defendant
operated a vehicle.

"Under the influence of an intoxicant" means that
the defendant's ability to operate a vehicle was
materially impaired because of consumption of an
alcoholic beverage.

Not every person who has consumed alcoholic
beverages is "under the influence" as that term is
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used here. What must be established is that the
person has consumed a sufficient amount of alcohol to
cause the person to be less able to exercise the clear
judgment and steady hand necessary to handle and
control a motor vehicle.

It is not required that impaired ability to
operate be demonstrated by particular acts of unsafe
driving. What is required is that the person's
ability to safely control the vehicle be materially
impaired.

The law states that the alcohol concentration in
a defendant's breath sample taken within three hours
of operating a vehicle is evidence of the defendant's
alcohol concentration at the time of the operating.

If you are satisfied beyond a reasonable doubt
that there was .08 grams or more of alcohol in 210
liters of the defendant's breath at the time the test
was taken, you may find that the defendant was under
the influence of an intoxicant at the time of the
alleged operating, but you are not required to do so.
You, the jury, are here to decide this question on the
basis of all the evidence in this case, and you should
not find the defendant was under the influence of an
intoxicant at the time of the alleged operating,
unless you are satisfied of that fact beyond a
reasonable doubt.
¶115 The circuit court omitted four words from the standard

instruction when it gave the instruction above: namely, "from
that fact alone." Normally, the last paragraph of the

instruction reads:

If you are satisfied beyond a reasonable doubt
that there was .08 grams or more of alcohol in 210
liters of the defendant's breath at the time the test
was taken, you may find from that fact alone that the
defendant was under the influence of an intoxicant at
the time of the alleged operating, but you are not
required to do so. You the jury are here to decide
this question on the basis of all the evidence in this
case, and you should not find that the defendant was
under the influence of an intoxicant at the time of
the alleged operating, unless you are satisfied of
that fact beyond a reasonable doubt.
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Wis JI——Criminal 1185.

¶116 The wording of the standard instruction makes clear

that it is derived from Wis. Stat. § 885.235(1g)(c) and is

intended to be used for a test authorized by Wis. Stat.

§ 343.305(3), not a PBT authorized under Wis. Stat. § 343.303.

Removal of the four words really changes nothing, because the

standard instruction never requires the jury to find that the

defendant was under the influence of an intoxicant. The

instruction as written and the instruction as modified both

authorize or permit the jury to find a defendant guilty if it is

satisfied beyond a reasonable doubt that the defendant had .08

grams or more of alcohol in 210 liters of his breath at the time

the test was taken. After all, to quote the instruction, "The

law states that the alcohol concentration in a defendant's

breath sample taken within three hours of operating a vehicle is

evidence of the defendant's alcohol concentration at the time of

the operating," and the test result was .086.

¶117 Immediately following instruction 1185 cited above,

the court gave an instruction in relation to the defendant's

defense:

Wisconsin law provides that it is a defense to
this crime if the death would have occurred even if
the defendant had been exercising due care and had not
been under the influence of an intoxicant.

The burden is on the defendant to prove by
evidence which satisfies you to a reasonable certainty
by the greater weight of the credible evidence that
this defense is established.

"By the greater weight of the credible evidence"
is meant evidence which, when weighed against that
opposed to it, has more convincing power. "Credible
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evidence" is evidence which in the light of reason and
common sense is worthy of belief.

Evidence has been received relating to the
conduct of Travis Bestwick at the time of the alleged
crime. Any failure by Travis Bestwick to exercise due
care does not by itself provide a defense to the crime
charged against the defendant. Consider evidence of
the conduct of Travis Bestwick in deciding whether the
defendant has established that the death would have
occurred even if the defendant had not been under the
influence of an intoxicant and had been exercising due
care.

If you are satisfied to a reasonable certainty by
the greater weight of the credible evidence that this
defense is proved, you must find the defendant not
guilty.

If you are not satisfied to a reasonable
certainty by the greater weight of the credible
evidence that this defense is proved and you are
satisfied beyond a reasonable doubt that all elements
of this offense have been proved, you should find the
defendant guilty.

If you are not satisfied beyond a reasonable
doubt that all elements of this offense have been
proved, you must find the defendant not guilty.
¶118 More than anything else in the court's instructions to

the jury, these paragraphs relate to Rocha-Mayo's explanation
and defense of his conduct. But the quoted paragraphs

immediately followed a potent instruction that should not have

been given.

HARMLESS ERROR

¶119 The majority assumes, even if it does not concede, two

critical errors in Rocha-Mayo's trial. It dismisses these

errors as harmless beyond a reasonable doubt by pointing to

evidence sufficient to sustain the defendant's conviction.

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¶120 In State v. Martin, 2012 WI 96, ¶45, 343 Wis. 2d 278,

816 N.W.2d 270, this court repeated the classic test for

harmless error: whether it is "clear beyond a reasonable doubt

that a rational jury would have found the defendant guilty

absent the error." Id. (quoting State v. Harvey, 2002 WI 93,

¶49, 254 Wis. 2d 442, 647 N.W.2d 189). But the court added

valuable commentary:

Framed a different way, an "error is harmless if the
beneficiary of the error proves 'beyond a reasonable
doubt that the error complained of did not contribute
to the verdict obtained.'" State v. Mayo, 2007 WI 78,
¶47, 301 Wis. 2d 642, 734 N.W.2d 115 (quoting State v.
Anderson, 2006 WI 77, ¶114, 291 Wis. 2d 673, 717
N.W.2d 74). Therefore, this court must be satisfied,
beyond a reasonable doubt, not that the jury could
have convicted the defendant (i.e., sufficient
evidence existed to convict the defendant), State v.
Weed, 2003 WI 85, ¶28, 263 Wis. 2d 434, 666
N.W.2d 485, but rather that the jury would have
arrived at the same verdict had the error not
occurred. See Harvey, 254 Wis. 2d 442, ¶46 (quoting
[Neder v. United States, 527 U.S. 1, 18 (1999)]).
Id. (citation omitted).

¶121 The court went on to cite several factors that assist

a court's analysis of whether an error is harmless. Id., ¶46.
These factors include "the importance of the erroneously

admitted evidence" and "the nature of the defense." Id.

¶122 It would be hard for this writer to contend that the

defendant would not have been convicted and should not have been

convicted of something for his role in Bestwick's death. The

issue, however, is whether the jury would have arrived at the

same verdict on all the offenses charged had the errors not
occurred.

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¶123 It must be remembered that the Kenosha County District

Attorney did not charge Rocha-Mayo with a violation of Wis.

Stat. § 940.09(1)(a) (homicide by intoxicated use of a vehicle)

until many months after the accident because he did not have an

authorized breath or blood test, and he thought the PBT result

was inadmissible. If he had not been encouraged to file this

charge with the implication that the PBT result would be

admitted, he might never have filed the charge at all.

¶124 If the test result had not been admitted, the jury

would not have had any numerical evidence of the amount of

alcohol in the defendant's breath. If the test result had not

been admitted, the court likely would not have read the disputed

portion of Wis JI——Criminal 1185, even if a homicide by

intoxicated use of a vehicle charge had been filed.

¶125 Erroneously admitting the PBT result as legitimate

evidence gave scientific support to Dr. William Falco's opinion

testimony that the defendant was intoxicated. This testimony,

whether it was correct or incorrect, would have been much less

powerful absent the PBT result.

¶126 In short, to assert not only that the jury could have

convicted the defendant of Wis. Stat. § 940.09(1)(a) but also

that the jury would have convicted the defendant of that

offense——beyond a reasonable doubt——without the inadmissible PBT

result and the mistaken instruction——is not persuasive because

it greatly undervalues the effect of having a chemical test of

the defendant's breath, blood, or urine as evidence in a
criminal prosecution.

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¶127 But the effect of the two errors may have been even

greater.

¶128 Rocha-Mayo had a recognized legal defense to the

charge of homicide by operation of a motor vehicle while under

the influence——a defense alluded to in Judge Warren's jury

instructions. He did not have an equivalent legal defense to

the charges under Wis. Stat. §§ 940.02 and 941.30. Nonetheless,

Rocha-Mayo did have an avenue for attacking the element of

"circumstances that show utter disregard for human life" in both

offenses. The jury instructions for Wis. Stat. §§ 940.02 and

941.30 both contain the following language:

In determining whether the circumstances of the
conduct showed utter disregard for human life,
consider these factors: what the defendant was doing;
why the defendant was engaged in that conduct; how
dangerous the conduct was; how obvious the danger was;
whether the conduct showed any regard for life; and,
all other facts and circumstances relating to the
conduct.
Wis JI——Criminal 1020, 1345 (emphasis added) (footnote omitted).

¶129 The comment to Wis JI——Criminal 1020 for first-degree

reckless homicide observes, "All the circumstances relating to

the defendant's conduct should be considered in determining
whether that conduct shows 'utter disregard' for human life.

These circumstances would include facts relating to the possible

provocation of the defendant." The comment continues: "Evidence

of provocation will usually be admissible in prosecutions for

crimes requiring criminal recklessness . . . (and, in

prosecutions under this section, whether the circumstances show
utter disregard for human life)." Comment, Wis JI——Criminal

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1020 (quoting Judicial Council Note to § 940.02, 1987 S.B. 191).

Similar language is found in the Comment to Wis JI——Criminal

1345 related to first-degree recklessly endangering safety.

¶130 Wisconsin Jury Instruction 1185 invited the jury to

find the defendant guilty of operating his vehicle under the

influence and causing the death of Bestwick because of the .086

PBT result. Any juror who accepted that invitation was likely

to disregard Rocha-Mayo's legal defense and likely to dismiss

the effect of provocation in evaluating an attack on the element

of "utter disregard for human life."

¶131 The admission of inadmissible evidence and the faulty

instruction that was given because of the admission of that

inadmissible evidence were critically tied to all three felony

convictions.

¶132 The jury deliberated in Rocha-Mayo's case for about 20

hours, over four days, before rendering its verdict. It twice

advised the court that the jurors were deadlocked. When the

verdicts finally came, many of the jurors cried as the verdicts

were read.

¶133 When an admired circuit court judge instructed the

jury "upon the principles of law which you are to follow in

considering the evidence," he made this statement: "It is your

duty to follow all of these instructions. Regardless of any

opinion you may have about what the law is or ought to be, you

must base your verdict on the law I give you in these

instructions."

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¶134 The jury struggled to discharge its duty. It agonized

over its decision. For the court now to say that two critical

errors at trial were harmless in their effect on the jury is to

deny reality and forget our purpose as a reviewing court.

¶135 Because I believe the defendant must be given a new

trial, I respectfully dissent.

¶136 I am authorized to state that Chief Justice SHIRLEY S.

ABRAHAMSON and Justice ANN WALSH BRADLEY join this dissent.

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