State v. Michael R. Luedtke

2015 WI 42

SUPREME COURT OF WISCONSIN
CASE NO.: 2013AP1737-CR & 2013AP218-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Michael R. Luedtke,
Defendant-Appellant-Petitioner.
------------------------------------------------
State of Wisconsin,
Plaintiff-Respondent,
v.
Jessica M. Weissinger,
Defendant-Appellant-Petitioner.

REVIEW OF A DECISION OF THE COURT OF APPEALS
(Reported at 355 Wis. 2d 436, 851 N.W.2d 837)
(Ct. App. 2014 – Published)
PDC No: 2014 WI App 79
-----------------------------------------------
REVIEW OF A DECISION OF THE COURT OF APPEALS
(Reported at 355 Wis. 2d 546, 851 N.W.2d 780)
(Ct. App. 2014 – Published)
PDC No: 2014 WI App 73

OPINION FILED: April 24, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: February 3, 2015

SOURCE OF APPEAL:
COURT: Circuit/Circuit
COUNTY: Winnebago/Ozaukee
JUDGE: Karen L. Seifert /Sandy A. Williams

JUSTICES:
CONCURRED: ABRAHAMSON, C.J., concurs. (Opinion Filed.)
DISSENTED:
NOT PARTICIPATING:

ATTORNEYS:
For the defendant-appellant-petitioner Michael R. Luedtke,
the cause was argued by Gerald P. Boyle. There were briefs by
Donald T. Lang, assistant state public defender.
 For the defendant-appellant-petitioner Jessica M.
Weissinger, the cause was argued by Gerald P. Boyle. There were
briefs by Gerald P. Boyle, and Boyle, Boyle & Boyle, S.C.,
Milwaukee.

For the plaintiff-respondent in both cases, the cause was
argued by Winn S. Collins, assistant attorney general, with whom
on the briefs was J.B. Van Hollen, attorney general.

2
 2015 WI 42
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2013AP1737-CR & 2013AP218-CR
(L.C. No. 2009CF871 & 2010CF116)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent,
FILED
v.
APR 24, 2015
Michael R. Luedtke,
Diane M. Fremgen
Defendant-Appellant-Petitioner. Clerk of Supreme Court

State of Wisconsin,

Plaintiff-Respondent,

v.

Jessica M. Weissinger,

Defendant-Appellant-Petitioner.

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

¶1 MICHAEL J. GABLEMAN, J. This is a review of two
published decisions of the court of appeals, State v. Luedtke,
 No. 2013AP1737-CR & 2013AP218-CR

2014 WI App 79, 355 Wis. 2d 436, 851 N.W.2d 837, and State v.
Weissinger, 2014 WI App 73, 355 Wis. 2d 546, 851 N.W.2d 780. We
consolidated the cases for the purpose of this opinion because
both present the same issue on largely similar facts. Both
cases require us to examine the constitutional implications of
blood sample destruction that deprived the defendants of the
opportunity to independently test their samples.
¶2 In Luedtke, the Winnebago County District Attorney's
Office charged Michael R. Luedtke ("Luedtke") with one count of
operating a motor vehicle while under the influence of a
controlled substance (diazepam and methadone), seventh, eighth,
or ninth offense, contrary to Wis. Stat. § 346.63(1)(a) (2009-

10),1 and one count of operating a motor vehicle with a

1
All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.

Wisconsin Stat. § 346.63(1)(a) states:

No person may drive or operate a motor vehicle while:
Under the influence of an intoxicant, a controlled
substance, a controlled substance analog or any
combination of an intoxicant, a controlled substance
and a controlled substance analog, under the influence
of any other drug to a degree which renders him or her
incapable of safely driving, or under the combined
influence of an intoxicant and any other drug to a
degree which renders him or her incapable of safely
driving.

Diazepam is listed as a Schedule IV controlled
substance under Wis. Stat. § 961.20(2)(cr). Methadone is
listed as a Schedule II controlled substance under Wis.
Stat. § 961.16(3)(r).

2
 No. 2013AP1737-CR & 2013AP218-CR

detectable amount of a restricted controlled substance (cocaine
and its metabolite, benzoylecgonine2) in the blood, seventh,
eighth, or ninth offense, contrary to Wis. Stat.
§ 346.63(1)(am).3 The jury found Luedtke not guilty of operating
a motor vehicle while under the influence of a controlled
substance but found him guilty of operating a motor vehicle with
a detectable amount of a restricted controlled substance in the
blood. The Winnebago County circuit court4 withheld a sentence
and placed Luedtke on probation for a period of four years, with
12 months of conditional jail time, imposed and stayed.
¶3 Luedtke filed a post-conviction motion arguing that
the State violated his due process rights when the Wisconsin

State Laboratory of Hygiene ("Laboratory") destroyed his blood
sample, in accordance with routine procedures, before he had the
opportunity to test it. Luedtke also argued that the charge of

2
See Benzoylecgonine, http://www.merriam-
webster.com/dictionary/benzoylecgonine (last visited Feb. 9,
2015).
3
Wisconsin Stat. § 346.63(1)(am) states: "No person may
drive or operate a motor vehicle while: The person has a
detectable amount of a restricted controlled substance in his or
her blood."

Wisconsin Stat. § 967.055(1m)(b) defines restricted
controlled substance as any of the following: "1. A controlled
substance included in schedule I under ch. 961 other than a
tetrahydrocannabinol. 2. A controlled substance analog, as
defined in s. 961.01 (4m), of a controlled substance described
in subd. 1. 3. Cocaine or any of its metabolites. 4.
Methamphetamine. 5. Delta-9-tetrahydrocannabinol."
4
The Honorable Karen L. Seifert, presiding.

3
 No. 2013AP1737-CR & 2013AP218-CR

operating a motor vehicle with a detectable amount of a
restricted controlled substance in the blood is unconstitutional
without scienter.5 The Winnebago County circuit court rejected
both claims, and Luedtke appealed.
¶4 The court of appeals affirmed and concluded (1) that
the State did not violate Luedtke's due process rights when the
Laboratory destroyed his blood sample in accordance with routine
procedures; and (2) that the statute prohibiting operating a
motor vehicle with a detectable amount of a restricted
controlled substance in the blood is a strict liability offense,
and thus does not require scienter. Luedtke, 355 Wis. 2d 436,
¶1. Further, the court concluded that the statute was

constitutional. Id.
¶5 In Weissinger, the Ozaukee County District Attorney's
Office charged Jessica M. Weissinger ("Weissinger") with one
count of injury by use of a vehicle with a restricted controlled
substance in the blood causing great bodily harm, contrary to
Wis. Stat. § 940.25(1)(am),6 and one count of operating a motor
vehicle with a detectable amount of a restricted controlled
substance in the blood (Delta-9-tetrahydrocannabinol ("THC")),

5
Scienter is defined as "[a] degree of knowledge that makes
a person legally responsible for the consequences of his or her
act or omission." Black's Law Dictionary 1463 (9th ed. 2009).
6
Wisconsin Stat. § 940.25(1)(am) states: "Any person who
does any of the following is guilty of a Class F felony: Causes
great bodily harm to another human being by the operation of a
vehicle while the person has a detectable amount of a restricted
controlled substance in his or her blood."

4
 No. 2013AP1737-CR & 2013AP218-CR

second offense, contrary to Wis. Stat. § 346.63(1)(am). Prior
to trial, Weissinger filed a motion to dismiss, arguing that the
admission of her blood test results into evidence violated her
due process rights because the Laboratory had destroyed her
blood sample before she had the opportunity to test it. The
Ozaukee County circuit court7 denied the motion, and the jury
subsequently found her guilty of both counts. The court
withheld a sentence on both counts and placed Weissinger on
probation for a period of five years for count one and two years
for count two, to be served concurrently. As a condition of
probation, the court ordered five months of conditional jail
time, stayed pending Weissinger's appeal. The court of appeals

affirmed, concluding that the State did not violate Weissinger's
due process rights when the Laboratory destroyed her blood
sample in accordance with its routine procedures. Weissinger,
355 Wis. 2d 546, ¶1.
¶6 Two issues are presented for our review. The first,
applicable to both parties, is whether the State violated
Luedtke and Weissinger's due process rights when the Laboratory
destroyed their blood samples, pursuant to routine procedures,
before each had the opportunity to test the samples. The
second, applicable to only Luedtke, is whether operating a motor
vehicle with a detectable amount of a restricted controlled
substance in the blood under Wis. Stat. § 346.63(1)(am) is a

7
The Honorable Sandy W. Williams, presiding.

5
 No. 2013AP1737-CR & 2013AP218-CR

strict liability offense, and, if so, whether the statute is
constitutional.
¶7 First, based on precedent, we hold that, in the
context of evidence preservation and destruction, the Wisconsin
Constitution does not provide greater due process protection
under Article 1, Section 8, Clause 18 than the United States
Constitution under either the Fifth9 or Fourteenth10 Amendments.
As a result, Arizona v. Youngblood, 488 U.S. 51 (1988),
controls. Accordingly, in order to prevail, Luedtke and
Weissinger must show that the State (1) failed to preserve
evidence that was apparently exculpatory, or (2) acted in bad
faith by failing to preserve evidence that was potentially

exculpatory. State v. Greenwold, 189 Wis. 2d 59, 67, 525
N.W.2d 294 (Ct. App. 1994) (Greenwold II). Luedtke and
Weissinger's blood samples were neither apparently exculpatory
nor destroyed in bad faith; therefore, the State did not violate
their due process rights.

8
Wisconsin Const. art 1, § 8, cl. 1 states: "No person may
be held to answer for a criminal offense without due process of
law, and no person for the same offense may be put twice in
jeopardy of punishment, nor may be compelled in any criminal
case to be a witness against himself or herself."
9
United States Const. amend. V states: "No person shall
be . . . deprived of life, liberty, or property, without due
process of law."
10
United States Const. amend. XIV, § 1 states: "No state
shall . . . deprive any person of life, liberty, or property,
without due process of law."

6
 No. 2013AP1737-CR & 2013AP218-CR

¶8 Second, we hold that operating a motor vehicle with a
detectable amount of a restricted controlled substance in the
blood under Wis. Stat. § 346.63(1)(am) is a strict liability
offense that does not require scienter, and is constitutional.
We therefore affirm the court of appeals.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A. Michael R. Luedtke
¶9 On April 27, 2009, at 2:07 PM in Oshkosh, Wisconsin,
Luedtke, driving a Ford Escort belonging to his employer, rear-
ended another vehicle, extensively damaging it and injuring its
driver. Luedtke stated that he caused the accident when he took
his eyes off the road to reach for his cell phone. Police

officers arrived at the scene and eyewitnesses told them that
Luedtke had stuffed a blue bag-like item into the sewer after
the collision. Detective Christopher Guiliani ("Detective
Guiliani") searched the sewer and found a blue shirt wrapped
around six syringes and a metal spoon. Luedtke later testified
that he hid the syringes, but not the spoon, in the sewer in a
panic because he thought that they were illegal items. He also
testified that he did not know that the items were in the car
before the accident.
¶10 At the scene, Officer Joseph Framke ("Officer Framke")
spoke with Luedtke. Luedtke admitted that he had taken several
prescription medications and occasionally used marijuana.

Luedtke consented to a search of his vehicle and Officer Framke
found, in the driver's side door pocket, three additional
syringes and an unlabeled prescription bottle containing powder
7
 No. 2013AP1737-CR & 2013AP218-CR

residue. In his initial interactions with Luedtke, Officer
Framke did not notice any significant signs of intoxication but
concluded that Luedtke was impaired after Luedtke failed
standard field sobriety tests. Detective Brett Robertson
("Detective Robertson") administered a 12-step test that helps
to determine if a person is under the influence of drugs and
concluded that Luedtke was impaired. Luedtke claimed that his
poor performance on the sobriety tests was due to prior
injuries, his misunderstanding of the directions, and injuries
that he sustained during the accident. Detective Robertson also
observed fresh puncture marks near Luedtke's right thumb.
Luedtke admitted that while he did inject morphine, the

particular puncture marks observed by Detective Robertson were
from work injuries, not drugs.
¶11 It is undisputed that at 3:28 PM on the day of the
accident police conducted a legal blood draw. Prior to the
blood draw, Detective Guiliani read Luedtke the "informing the
accused"11 form after which Luedtke consented to the blood draw.
The informing the accused form told Luedtke that:

11
Wisconsin Stat. § 343.305(4) requires that a law
enforcement officer provide certain information to a person
after being arrested for operating while under the influence of
alcohol or drugs. The officer must inform the arrestee that his
or her blood, breath, or urine sample will be tested for drugs
or alcohol. The officer must also inform the arrestee that he
or she has the right to take an alternative test free of charge
and to have a test conducted by a qualified person of the
arrestee's choice and at the arrestee's expense.

8
 No. 2013AP1737-CR & 2013AP218-CR

This law enforcement agency now wants to test one or
more samples of your breath, blood or urine to
determine the concentration of alcohol or drugs in
your system. . . . If you take all the requested
tests, you may choose to take further tests. You may
take the alternative test that this law enforcement
agency provides free of charge. You may also have a
test conducted by a qualified person of your choice at
your expense.
Luedtke declined an alternative test.
¶12 On April 30, 2009, Luedtke's blood sample arrived at
the Laboratory, a public health laboratory at the University of
Wisconsin that is accredited by the American Board of Forensic

Toxicologists and that acts independently from the direction of
any law enforcement agency. On May 1, 2009, Advanced Chemist
Thomas Neuser ("Neuser") tested Luedtke's blood sample for
alcohol. The Laboratory generated a report in May 2009
indicating that Luedtke's blood tested negative for alcohol.
The report stated that "Specimen(s) will be retained no longer
than six months unless otherwise requested by agency or
subject."
¶13 On November 18, 2009, the sample underwent a more
comprehensive Gas Chromatograph with Mass Selective Detector
("GCMSD") drug panel screen. This test indicated the presence
of the anti-depressant venlafaxine, the narcotic methadone, and
the anti-anxiety medication diazepam, all within the therapeutic
range. The test results also indicated the presence of cocaine,
at less than 20 nanograms12 per milliliter, and the cocaine

12
A nanogram is one billionth of a gram.

9
 No. 2013AP1737-CR & 2013AP218-CR

metabolite benzoylecgonine, at 330 nanograms per milliliter.
The detection limit for cocaine is ten nanograms, below which it
is reported as not detected. In November 2009, the Laboratory
generated a second report that identified these drugs as present
in Luedtke's blood.
¶14 The Laboratory mailed copies of both the May 2009
report and November 2009 reports to Luedtke, but he claims that
he never received them.
¶15 On December 18, 2009, the Winnebago County District
Attorney's Office charged Luedtke with one count of operating a
motor vehicle while under the influence of a controlled
substance (diazepam and methadone), seventh, eighth, or ninth

offense, contrary to Wis. Stat. § 346.63(1)(a), and one count of
operating a motor vehicle with a detectable amount of a
restricted controlled substance (cocaine and its metabolite,
benzoylecgonine) in the blood, seventh, eighth, or ninth
offense, contrary to Wis. Stat. § 346.63(1)(am).
¶16 Luedtke failed to appear at his initial appearance
scheduled for January 11, 2010, because he was in custody in
Outagamie County. On February 4, 2010, the Laboratory destroyed
Luedtke's blood sample. Luedtke claims that he first saw the
blood test results at his initial appearance on May 24, 2010.
¶17 On December 28, 2010, Luedtke filed a motion to
dismiss or to suppress the blood test results on the ground that

the Laboratory had destroyed his blood. The circuit court
denied Luedtke's motion, finding no evidence of bad faith on the
part of the Laboratory. The court suggested that Luedtke inform
10
 No. 2013AP1737-CR & 2013AP218-CR

the jury that he was not given a chance to retest the sample due
to its destruction.
¶18 On April 17, 2012, the State tried Luedtke before a
jury. Luedtke's counsel cross-examined Neuser, who testified
that blood testing is not infallible and that the reported value
does not always match the target value with an unstable molecule
like cocaine, though this discrepancy does not constitute a
false positive. Luedtke also cross-examined Officer Framke, who
admitted that Luedtke did not display signs of impairment during
their initial interactions. Luedtke testified and explained his
use of venlafaxine, methadone, and diazepam, and denied any
cocaine use. Luedtke also testified that he could not retest

his blood sample because the Laboratory destroyed it before he
was aware of the results. Further, Luedtke admitted that he hid
the syringes, but not the spoon, in the sewer. During his
closing argument, Luedtke focused on the Laboratory's
destruction of the blood sample. Luedtke did not call an expert
witness, object to any jury instructions, or request any
additional information be added to the record.
¶19 The jury found Luedtke not guilty of count one,
operating under the influence of a controlled substance. The
jury found Luedtke guilty of count two, operating a motor
vehicle with a detectable amount of a restricted controlled
substance in the blood. On April 17, 2012, the court entered a

judgment of conviction, withheld sentence, and placed Luedtke on
probation for a period of four years, with 12 months of
conditional jail time, imposed and stayed.
11
 No. 2013AP1737-CR & 2013AP218-CR

¶20 On May 31, 2013, Luedtke filed a post-conviction
motion that challenged the admission into evidence of the blood
test result and the constitutionality of Wis. Stat.
§ 346.63(1)(am). He asserted that, even if the court admitted
the blood test results into evidence, the jury should have been
instructed that they could infer that the sample could have been
exculpatory had it not been destroyed. Luedtke also contended
that he was denied the effective assistance of counsel. The
circuit court denied the motions, concluding that the State did
not violate Luedtke's due process rights when the Laboratory
destroyed his blood sample. The court also concluded that
§ 346.63(1)(am) is a constitutional strict liability offense.

¶21 On June 11, 2014, the court of appeals affirmed the
circuit court's judgment of conviction and order denying
postconviction relief. The court of appeals concluded that
§ 346.63(1)(am) is a strict liability offense and is
constitutional. Luedtke, 355 Wis. 2d 436, ¶¶15-19. The court
also concluded that Luedtke failed to show that his blood sample
was apparently exculpatory or that it was destroyed in bad
faith. Id., ¶¶22, 24. Finally, the court concluded that,
despite the blood sample's destruction, Luedtke received a fair
trial. Id., ¶25-26.
¶22 Luedtke successfully petitioned this court for review.
B. Jessica M. Weissinger
¶23 On July 6, 2009, in Mequon, Wisconsin, between 5:00
and 5:30 PM, Weissinger's vehicle collided with a motorcycle.
The motorcyclist saw Weissinger's vehicle swerve into his lane
12
 No. 2013AP1737-CR & 2013AP218-CR

when Weissinger turned left at an intersection. Despite
applying his brakes, the motorcyclist struck Weissinger's
vehicle and was thrown to the pavement causing a broken back,
shattered wrists, a head laceration, and a concussion. Weather
was not a factor in the crash.
¶24 Law enforcement and emergency medical personnel
arrived at the scene and administered treatment to the
motorcyclist. Investigating Officer Mark Riley ("Officer
Riley") spoke with Weissinger for about one minute. Officer
Riley noted that Weissinger had bloodshot eyes, but acknowledged
that this was consistent with her emotional state and not
necessarily indicative of impairment. Officer Brent Smith

("Officer Smith") also examined Weissinger and did not believe
her to be intoxicated.
¶25 Officer Riley did not initially believe that
Weissinger was under the influence of drugs or alcohol.
However, anticipating a fatality investigation, he obtained
Weissinger's consent for a blood draw. Officer Riley
transported Weissinger to the hospital in a Mequon Police
Department vehicle. It is undisputed, however, that she was not
under arrest at the time. Because the police did not arrest
Weissinger for an impaired driving offense, Officer Smith was
not required to provide her with an "informing the accused"13
13
This incident occurred before the 2010 amendment to Wis.
Stat. § 343.305(4), in which the legislature amended the statute
to require that the "informing the accused" information be
provided after any vehicular collision involving grave injury,
great bodily harm, or death.

13
 No. 2013AP1737-CR & 2013AP218-CR

warning before her blood draw. Officer Smith testified that he
did not inform Weissinger that she could take an alternate test
but also testified that he would have complied with such a
request had she made one.
¶26 At 6:45 PM that same evening, technician Lisa Brandt
drew Weissinger's blood, with all parties confirming that both
the draw and the return of the sample to the police were
acceptable. On July 10, 2009, Weissinger's blood sample arrived
at the Laboratory. On July 13, 2009, the Laboratory tested the
blood sample for alcohol. The following day, the Laboratory
generated a report that stated that the test results did not
show the presence of alcohol. The report also stated that:

"Specimen(s) will be retained no longer than six months unless
otherwise requested by agency or subject."
¶27 On August 7, 2009, the Laboratory tested Weissinger's
blood sample for drugs using the GCMSD drug panel screen. The
GCMSD found that Weissinger's blood contained near-therapeutic
range levels of the anti-depressant fluoxetine and therapeutic
range levels of the narcotic oxycodone. On February 24, 2010,
the final GCMSD analysis revealed that her blood contained THC
at a level of 5.9 nanograms per milliliter. On March 7, 2010,
the Laboratory generated a report identifying the presence of
THC.
¶28 The Laboratory mailed the July 2009 report and March

2010 report to Weissinger, though she claims that she never
received them. In late April 2010, the Laboratory discarded her
blood sample in accordance with its routine practice.
14
 No. 2013AP1737-CR & 2013AP218-CR

¶29 On May 24, 2010, the Ozaukee County District
Attorney's Office charged Weissinger with one count of injury by
use of a vehicle with a restricted controlled substance (THC) in
the blood causing great bodily harm, contrary to Wis. Stat.
§ 940.25(1)(am), and one count of operating a motor vehicle with
a detectable amount of a restricted controlled substance (THC)
in the blood, second offense, contrary to Wis. Stat.
§ 346.63(1)(am).
¶30 On May 3, 2011, Weissinger made her first request to
retest the blood sample. Soon after, she filed a formal motion
to retest the sample. In May 2011, the Laboratory informed her
that it had destroyed her blood sample in late April 2010.

Weissinger filed a motion to dismiss the charges on the ground
that her blood sample had been destroyed. The circuit court
denied Weissinger's motion, concluding that the State did not
violate Weissinger's due process rights.
¶31 From April 23-24, 2012, the case was tried before a
jury. The circuit court gave Weissinger wide latitude during
cross-examination. Weissinger cross-examined Advanced Chemist
Amy Miles ("Miles"), the analyst who tested Weissinger's blood
sample for drugs. During cross-examination, Miles acknowledged
that testing is not infallible and that she had no certain
evidence or direct knowledge of whether Weissinger received the
Laboratory's reports. Miles also testified that, based on the

blood test results, Weissinger was likely a regular user of
marijuana and probably had consumed the substance within a few
hours before the accident, certainly within 24 hours. The
15
 No. 2013AP1737-CR & 2013AP218-CR

court, prior to trial, also gave Weissinger additional time to
hire an expert witness for her defense, though she ultimately
declined to do so.
¶32 The circuit court also allowed the jury to hear a
statement from Weissinger explaining she was unable to retest
her blood sample because it no longer existed. The court
prohibited the State from indicating that Weissinger waited
until May 2011 to request a retest of the blood.
¶33 The jury found Weissinger guilty of both counts. The
circuit court withheld sentence and placed her on probation for
a period of five years for count one and a period of two years
for count two, to be served concurrently. As a condition of

probation, the court ordered five months of conditional jail
time, stayed pending Weissinger's appeal.
¶34 On June 25, 2014, the court of appeals affirmed. The
court rejected Weissinger's argument that the destruction of her
blood sample violated due process. Weissinger, 355 Wis. 2d 546,
¶1. The court reasoned that pursuant to Youngblood, Weissinger
failed to show either that the blood sample was apparently
exculpatory or that it was destroyed in bad faith. Id., ¶19.
¶35 Judge Reilly dissented. Judge Reilly argued that "[a]
criminal justice system that allows the government to destroy
the sole evidence of a person's guilt prior to notice, charging,
or a meaningful opportunity for the accused to inspect the
State's evidence is fundamentally unfair." Id., ¶31 (Reilly,
J., dissenting). Judge Reilly argued Youngblood was
inapplicable in the present case because Weissinger's blood
16
 No. 2013AP1737-CR & 2013AP218-CR

sample had inculpatory value, not merely "conceivable
evidentiary significance." Id., ¶38 (Reilly, J., dissenting).
¶36 Weissinger successfully petitioned this court for
review.
II. STANDARD OF REVIEW
¶37 "Whether state action constitutes a violation of due
process presents a question of law, which this court decides
independently . . . ." State v. Neumann, 2013 WI 58, ¶32, 348
Wis. 2d 455, 832 N.W.2d 560. We uphold the circuit court's
findings of historical fact unless they are clearly erroneous.
State v. Felix, 2012 WI 36, ¶22, 339 Wis. 2d 670, 811
N.W.2d 775.

¶38 "Statutory interpretation is a question of law that
this court reviews de novo . . . ." Noffke ex rel. Swenson v.
Bakke, 2009 WI 10, ¶9, 315 Wis. 2d 350, 760 N.W.2d 156. Whether
a statute is unconstitutional also is a question of law that
this Court reviews de novo. Neumann, 348 Wis. 2d 455, ¶32
(citing State v. Sorenson, 2002 WI 78, ¶25, 254 Wis. 2d 54, 646
N.W.2d 354). Statutes are presumed to be constitutional. State
v. Jadowski, 2004 WI 68, ¶10, 272 Wis. 2d 418, 680 N.W.2d 810.
"A party challenging a statute's constitutionality must []
demonstrate that the statute is unconstitutional beyond a
reasonable doubt." Id.
III. DISCUSSION
A. Youngblood Controls
¶39 Luedtke and Weissinger's primary argument on appeal is
that the Wisconsin Constitution provides greater due process
17
 No. 2013AP1737-CR & 2013AP218-CR

protections than the United States Constitution in the context
of evidence preservation and destruction. We disagree. Based
on our precedent we hold that, in the context of evidence
preservation and destruction, the Wisconsin Constitution does
not provide greater due process protections under Article 1,
Section 8, Clause 1 than the United States Constitution does
under either the Fifth or Fourteenth Amendments. As a result,
Arizona v. Youngblood, controls. In order to prevail, Luedtke
and Weissinger would have to show that the State (1) failed to
preserve evidence that was apparently exculpatory or (2) acted
in bad faith by failing to preserve evidence that was
potentially exculpatory. Greenwold II, 189 Wis. 2d at 67. The

blood samples were neither apparently exculpatory nor destroyed
in bad faith; therefore, the State did not violate Luedtke and
Weissinger's due process rights.
¶40 "This court follows the doctrine of stare decisis
scrupulously because of our abiding respect for the rule of
law." Johnson Controls, Inc. v. Employers Ins. of Wausau, 2003
WI 108, ¶94, 264 Wis. 2d 60, 665 N.W.2d 257. Adhering to
precedent

ensures that existing law will not be abandoned
lightly. When existing law is open to revision in
every case, deciding cases becomes a mere exercise of
judicial will, with arbitrary and unpredictable
results. Consequently, this court has held that any
departure from the doctrine of stare decisis demands
special justification.
Schultz v. Natwick, 2002 WI 125, ¶37, 257 Wis. 2d 19, 653
N.W.2d 266 (citations and quotations omitted).

18
 No. 2013AP1737-CR & 2013AP218-CR

The rationales for following the doctrine of stare
decisis . . . include: '[1] the desirability that the
law furnish a clear guide for conduct of individuals,
to enable them to plan their affairs with assurance
against untoward surprise; [2] the importance of
furthering fair and expeditious adjudication by
eliminating the need to relitigate every relevant
proposition in every case; and [3] the necessity of
maintaining public faith in the judiciary as a source
of impersonal and reasoned judgments.'
Johnson Controls, 264 Wis. 2d 60, ¶95 (quoting Moragne v. States
Marine Lines, Inc., 398 U.S. 375, 403 (1970)). "Stare decisis
is the preferred course [of judicial action] because it promotes
evenhanded, predictable, and consistent development of legal
principles . . . and contributes to the actual and perceived
integrity of the judicial process." State v. Ferron, 219
Wis. 2d 481, 504, 579 N.W.2d 654 (1998) (quoting Payne v.
Tennessee, 501 U.S. 808, 827 (1991)).

Five factors typically contribute to a decision to
overturn prior case law. This court is more likely to
overturn a prior decision when one or more of the
following circumstances is present: (1) Changes or
developments in the law have undermined the rationale
behind a decision; (2) there is a need to make a
decision correspond to newly ascertained facts; (3)
there is a showing that the precedent has become
detrimental to coherence and consistency in the law;
(4) the prior decision is unsound in principle; or (5)
the prior decision is unworkable in practice.
Bartholomew v. Wisconsin Patients Comp. Fund & Compcare Health
Servs. Ins. Corp., 2006 WI 91, ¶33, 293 Wis. 2d 38, 717
N.W.2d 216 (quotations omitted).
¶41 Wisconsin has a well-settled and long standing body of
law on the due process implications of evidence preservation and
destruction. See, e.g., State v. Disch, 119 Wis. 2d 461, 351

19
 No. 2013AP1737-CR & 2013AP218-CR

N.W.2d 492 (1984); State v. Ehlen, 119 Wis. 2d 451, 351
N.W.2d 503 (1984); State v. Walstad, 119 Wis. 2d 483, 351
N.W.2d 469 (1984). This precedent requires that, to prevail on
a due process challenge, a defendant must show that that
evidence was either apparently exculpatory or that the State
acted in bad faith by destroying evidence that was potentially
exculpatory. State v. Pankow, 144 Wis. 2d 23, 42-43, 422
N.W.2d 913 (Ct. App. 1988) (citing California v. Trombetta, 467
U.S. 479 (1984)); State v. Greenwold, 181 Wis. 2d 881, 855, 512
N.W.2d 237 (Ct. App. 1994) (Greenwold I) (citing Youngblood).
Our precedent interprets the Wisconsin Constitution as providing
the same due process protections for evidence preservation and

destruction as the United States Constitution. Greenwold II,
189 Wis. 2d at 71.
¶42 As early as 1984, we held that "[t]he importance of
the production of the original breath ampoule or a portion of
the blood sample as the sine qua non of due process is a myth
that should not be perpetuated." Ehlen, 119 Wis. 2d at 453. We
held that it was an error "to conclude due process will be
violated if a blood test is not suppressed merely because a
portion of the sample—even if it were retestable—could not be
produced for further tests." Id. at 457. We were "convinced
that the claim that due process could only be preserved for
defendants by such retests was illusory." Disch, 119 Wis. 2d at
480.
¶43 That same year, the United States Supreme Court
concluded that due process did not require the preservation of a
20
 No. 2013AP1737-CR & 2013AP218-CR

breath sample in order to introduce breathalyzer results at
trial. Trombetta, 67 U.S. at 491. Even though a re-test could
lead to exculpatory evidence, the Court nevertheless held there
was no due process violation because the destruction occurred in
good faith and in accordance with normal evidence retention
practice. Id. at 488.
¶44 In Youngblood, the Supreme Court reaffirmed this
principle. The Court noted "the importance for constitutional
purposes of good or bad faith on the part of the Government when
the claim is based on loss of evidence attributable to the
Government." Youngblood, 488 U.S. at 57. The Court was
unwilling to "impos[e] on the police an undifferentiated and

absolute duty to retain and to preserve all material that might
be of conceivable significance in a particular prosecution."
Id. at 58.
¶45 Post-Youngblood, Wisconsin courts have adhered to this
precedent. In Greenwold II, the court of appeals concluded that
"the due process clause of the Wisconsin Constitution is the
substantial equivalent of its respective clause in the federal
constitution." Greenwold II, 189 Wis. 2d at 71 (citing State v.
McManus, 152 Wis. 2d 113, 130, 447 N.W.2d 654 (1989)).
Greenwold II continued to hold to precedent in concluding that
the Youngblood test controlled and, because the Wisconsin
Constitution did not provide any greater protection, that due
process did not require the preservation of a breath or blood
sample. Id.

21
 No. 2013AP1737-CR & 2013AP218-CR

¶46 Therefore, under longstanding Wisconsin precedent, it
is clear that the routine destruction of a driver's blood or
breath sample, without more, does not deprive a defendant of due
process. To prevail on a due process challenge, the defendant
must show that the evidence was apparently exculpatory or that
it was destroyed in bad faith. Greenwold II, 189 Wis. 2d at 67.
Bad faith can be shown only if "(1) the officers were aware of
the potentially exculpatory value or usefulness of the evidence
they failed to preserve; and (2) the officers acted with
official animus or made a conscious effort to suppress
exculpatory evidence." Id. at 69. The United States Supreme
Court, this court, and the court of appeals have all expressly

rejected the argument that due process requires the preservation
of blood samples.
¶47 Though our precedent is clear that destruction alone
does not create a due process violation under either
constitution, Luedtke and Weissinger both argue that changes or
developments in the law, specifically State v. Dubose, 2005 WI
126, 285 Wis. 2d 143, 699 N.W.2d 582, have undermined the
rationale behind our precedent.14
¶48 In Dubose, we held that Article I, Section 8 of the
Wisconsin Constitution contained a broader due process right

14
We restricted briefing to the first Bartholomew factor:
"Whether changes or developments in the law in State v. Dubose,
2005 WI 126, 285 Wis. 2d 143, 699 N.W.2d 582, have undermined
the rationale behind [the] Ehlen, Disch, Walstad, Pankow, and
Greenwold II decisions."

22
 No. 2013AP1737-CR & 2013AP218-CR

than that contained within the Fifth and Fourteenth Amendments
to the United States Constitution. Dubose, 285 Wis. 2d 143,
¶41. However, we restricted this broader right to the specific
context of an identification procedure known as a "showup."
Id., ¶45. "A showup is an out-of-court pretrial identification
procedure in which a suspect is presented singly to a witness
for identification purposes." Id., ¶1 n.1 (quotations and
citation omitted). We explained that the identification of a
defendant by "a showup will not be admissible unless, based on
the totality of the circumstances, the showup was necessary"
because a "lineup or photo array is generally fairer than a
showup . . . thus reducing the risk of a misidentification."

Id., ¶¶33, 45. We held that the Wisconsin Constitution provided
greater protection in this context because new studies had
demonstrated that unreliable eyewitness identification
contributed to wrongful convictions, thereby providing a
compelling justification for overruling precedent. Id., ¶¶29-
30, 33. Three justices dissented, and would have held that the
state and federal constitutions provided identical protections.
Id., ¶56 (Wilcox, J., dissenting), ¶68 (Prosser, J.,
dissenting), ¶89 (Roggensack, J., dissenting).
¶49 However, post-Dubose, we have held that the decision
did not create a precedential sea change with respect to the
recognition of a broader due process protection under the
Wisconsin Constitution than under the United States
Constitution. In State v. Drew, 2007 WI App 213, ¶¶2, 17, 305
Wis. 2d 641, 740 N.W.2d 404, the court of appeals held that
23
 No. 2013AP1737-CR & 2013AP218-CR

DuBose did not alter precedent with respect to lineups and photo
arrays, explaining that Dubose recognized those identification
procedures are preferable to a showup. In State v. Hibl, 2006
WI 52, ¶56, 290 Wis. 2d 595, 714 N.W.2d 194, we held that Dubose
did not directly control spontaneous or accidental
identifications of a defendant by a victim lacking police
involvement. Finally, in State v. Ziegler, 2012 WI 73, ¶¶81-82,
342 Wis. 2d 256, 816 N.W.2d 238, we distinguished a showup from
an identification made in court through the showing of a single
mug shot.
¶50 The State correctly notes, even within the specific
context of eyewitness identification, post-Dubose jurisprudence
confirms the limited reach of its actual holding: that due
process under the Wisconsin Constitution provides greater
protection in one identification procedure, the showup. Dubose
withdrew no language from Ehlen, Disch, Walstad, or Pankow.
Dubose is therefore not a sea change or even a development
sufficient to undermine the rationale behind Ehlen, Disch,
Walstad, Pankow, and Greenwold II.
¶51 Luedtke questions the precedential value of Ehlen and
Disch because they were decided before Dubose. Dubose did not
involve evidence destruction. The Wisconsin Constitution
provides identical protections to the United States Constitution
in this context. Luedtke also argues that Ehlen and Disch are
distinguishable because "the Court implicitly assumed the
defendants were aware of the specific focus of the testing on
alcohol." Luedtke argues that, unlike the defendants in Ehlen
24
 No. 2013AP1737-CR & 2013AP218-CR

and Disch, he had no reason to seek an independent test prior to
the Laboratory's destruction of his blood sample. That
distinction is not persuasive. When the State conducted the
blood draw, the officer informed Luedtke that his blood would be
tested for drugs and alcohol and that he could have the blood
independently tested. Although Luedtke allegedly had no reason
to believe that his blood sample would test positive for
restricted controlled substances before the Laboratory destroyed
it, he knew that his blood sample would be tested for drugs.
Thus, he had reason to seek an independent test before the
Laboratory destroyed his blood sample. In Ehlen and Disch, we
found it significant that the defendants knew of their right to

seek independent tests before the State destroyed their blood
samples. Ehlen, 119 Wis. 2d at 457; Disch, 119 Wis. 2d at 470.
We did not focus on whether the defendants had a reason to
independently test their samples before their destruction.
¶52 Further, Luedtke received notice that the "law
enforcement agency now wants to test one or more samples of your
breath, blood or urine to determine the concentration of alcohol
or drugs in your system." See Wis. Stat. § 343.305(4). Luedtke
thus knew the nature of the investigation when he declined to
pursue an alternate test. Luedtke and Weissinger's argument
that discovery granted them a post-charge right to the
preservation of the blood sample is in conflict with our
longstanding precedent. We have consistently held that it is
the test results, not the blood samples, that fall within the
discovery statute. Ehlen, 119 Wis. 2d at 452.
25
 No. 2013AP1737-CR & 2013AP218-CR

¶53 Because, under our precedent, the Wisconsin
Constitution provides no greater due process protections than
the United States Constitution regarding evidence preservation
and destruction, we now proceed to the application of the
Youngblood test. Again, under Youngblood a defendant's due
process rights regarding the destruction of evidence are
violated if the State (1) fails to preserve evidence that is
apparently exculpatory or (2) acts in bad faith by failing to
preserve evidence that is potentially exculpatory. Greenwold
II, 189 Wis. 2d at 67.
¶54 Neither Luedtke nor Weissinger argue that their blood
samples were apparently exculpatory. The fact that Luedtke's

blood tested positive for restricted controlled substances,
cocaine and its metabolite benzoylecgonine, demonstrates that
his blood was apparently not exculpatory. See, e.g., Illinois
v. Fisher, 540 U.S. 544, 548 (2004) ("[P]olice testing indicated
that the chemical makeup of the substance inculpated, not
exculpated, [the] respondent."). Nor has Weissinger shown how
her blood sample was apparently exculpatory at the time the
Laboratory destroyed it. Her sample, which tested positive for
the restricted controlled substance THC, was inculpatory as
well. Id.
¶55 Luedtke and Weissinger's due process claims also fail
because the State did not destroy their blood samples in bad
faith. Luedtke argues that the State acted in bad faith by
destroying his blood sample after he was charged and before he
received notice of the charge. Weissinger argues the State
26
 No. 2013AP1737-CR & 2013AP218-CR

acted in bad faith by destroying her sample before she was
charged. However, Luedtke and Weissinger have failed to prove
bad faith because they have not shown that the State (1) was
"aware of the potentially exculpatory value or usefulness of the
evidence [the State] failed to preserve"; and (2) "acted with
official animus or made a conscious effort to suppress
exculpatory evidence." See Greenwold II, 189 Wis. 2d at 69.

[R]equiring a defendant to show bad faith on the part
of the police both limits the extent of the police's
obligation to preserve evidence to reasonable bounds
and confines it to that class of cases where the
interests of justice most clearly require it, i.e.,
those cases in which the police themselves by their
conduct indicate that the evidence could form a basis
for exonerating the defendant.
Youngblood, 488 U.S. at 58.

¶56 Requiring bad faith is especially sensible once a
blood sample has tested positive for a controlled substance,
because at that point the sample is "much more likely to provide
inculpatory than exculpatory evidence." See Trombetta, 467 U.S.
at 489. The Laboratory destroyed both Luedtke and Weissinger's

blood samples according to routine procedures. Intentional
destruction, without more, does not establish bad faith.
¶57 Weissinger's reliance on State v. Hahn, 132
Wis. 2d 351, 392 N.W.2d 464 (Ct. App. 1986), is misplaced. The

evidence destroyed by the State in Hahn had apparent exculpatory
value. Id. at 360. By contrast, Weissinger's blood had, at
most, potential exculpatory value because, as explained above,
the fact that her blood sample tested positive for THC indicated

27
 No. 2013AP1737-CR & 2013AP218-CR

that her blood sample was inculpatory. See, supra, ¶54. Absent
bad faith, destruction of evidence that merely has potential
exculpatory value does not violate due process. Greenwold II,
189 Wis. 2d at 67 (citing Youngblood, 488 U.S. at 58).
¶58 Finally, both Luedtke and Weissinger received fair
trials. In Ehlen and Disch, we framed the due process issue
when evidence is destroyed as one of fairness, 119 Wis. 2d at
456; 119 Wis. 2d at 477, and in Trombetta the Supreme Court
defined the fairness guarantee as "a meaningful opportunity to
present a complete defense." Trombetta, 467 U.S. at 485. When
potentially exculpatory evidence is destroyed, "courts face the
treacherous task of divining the import of materials whose

contents are unknown and, very often, disputed." Id. at 486.
However, "the retention of a breath ampoule or of a blood sample
[is] of miniscule importance in the assurance of a fair trial
when weighed in the balance against the traditional rights of
defendants in criminal or quasi-criminal proceedings." Ehlen,
119 Wis. 2d at 456. "[A] whole panoply of due process
safeguards [] protect a defendant's right to a fair trial,
whether or not at a particular time a sample of blood is
retestable." Disch, 119 Wis. 2d at 470. This panoply includes
"[t]he right to cross-examine witnesses and experts for the
state, the right to impeach by use of the separate blood or
breath analysis results, and the right to attack the credibility
of the state's witnesses." Ehlen, 119 Wis. 2d at 452.
¶59 We agree with the State that both Luedtke and
Weissinger received fair trials.
28
 No. 2013AP1737-CR & 2013AP218-CR

¶60 Luedtke cross-examined witnesses and the court gave
him an opportunity to call his own expert witness, although he
chose not to do so. Luedtke also had the opportunity to tell
the jury that he was unable to test his blood sample because the
Laboratory destroyed it. Luedtke received discovery and
additional time from the circuit court to prepare his defense
and to seek documents from the Laboratory through an open
records request. Although Luedtke was unable to retest the
blood sample, he was able to analyze the raw data and
methodology that the Laboratory used to test the sample.
Further, when Luedtke's blood was drawn the officer informed
him, in writing, of his right to independently test the sample

or to have a second test performed by the State. Due to these
these safeguards we conclude that Luedtke's claim of an unfair
trial is unpersuasive.
¶61 Weissinger also received a fair trial. The circuit
court gave Weissinger full rein to cross-examine the State's
witnesses. Weissinger also received discovery. Although she
did not call an expert witness, the circuit court granted her
extra time to hire one. The circuit court instructed the jury
that Weissinger's motion to retest her blood sample was denied
because the Laboratory destroyed her sample before the State
filed charges. We have held that defendants unable to
independently test their blood samples have received fair trials

under similar circumstances. See Disch, 119 Wis. 2d at 471;
Ehlen, 119 Wis. 2d at 456-57.

29
 No. 2013AP1737-CR & 2013AP218-CR

¶62 While it is true that the Laboratory destroyed
Weissinger's sample before the State filed charges, it was under
no obligation to preserve the sample any longer than its
internal six month retention policy required. Further, the
Laboratory upheld its duty in mailing Weissinger the test
results. The test results informed her that, unless she
requested otherwise, the Laboratory would destroy her blood
sample six months after its receipt. Further, Weissinger was
not under arrest at the time of her blood draw, thus the officer
was under no obligation to advise her regarding the opportunity
for additional tests. Weissinger argues that Ehlen is
distinguishable because she was not told that she had the right

to independently test her blood sample before it was destroyed.
However, Ehlen is still controlling. Weissinger and Ehlen both
requested independent tests after the State destroyed their
samples. Ehlen, 119 Wis. 2d at 453-54. In fact, Ehlen, like
Weissinger, was charged after the State destroyed his blood
sample. Id.
¶63 Consequently, because we hold that the State did not
violate Luedtke and Weissinger's due process rights, we conclude
that the circuit court was not required to give a jury
instruction allowing the jury to infer that the lost evidence
was exculpatory. Nor was Luedtke denied the effective
assistance of counsel. To demonstrate ineffective assistance of
counsel, Luedtke must show that counsel's performance was
deficient and that the deficient performance prejudiced him.
Strickland v. Washington, 466 U.S. 668, 687 (1984). Because we
30
 No. 2013AP1737-CR & 2013AP218-CR

have rejected Luedtke's arguments, Luedtke's claim of
ineffective assistance of counsel must fail. See State v.
Maloney, 2005 WI 74, ¶37, 281 Wis. 2d 595, 698 N.W.2d 583
("Counsel does not render deficient performance for failing to
bring a [] motion that would have been denied."). Finally, the
interest of justice does not mandate a new trial because the
real controversy, whether Luedtke operated a motor vehicle with
a detectable amount of a restricted controlled substance in his
blood, was fully tried. State v. Bannister, 2007 WI 86, ¶43,
302 Wis. 2d 158, 734 N.W.2d 892.
B. Operating a Motor Vehicle with a Restricted Controlled
Substance in the Blood is a Constitutional Strict Liability

Offense.
¶64 Next, we consider whether operating a motor vehicle
with a detectable amount of a restricted controlled substance in
the blood under Wis. Stat. § 346.63(1)(am) is a strict liability
offense, and, if so, whether the offense is constitutional.
Only Luedtke presents this as an issue for review, though we
note that the State charged Weissinger under the same statute.
We hold that operating a motor vehicle with a detectable amount
of a restricted controlled substance in the blood under Wis.
Stat. § 346.63(1)(am) is a strict liability offense and is
constitutional.
¶65 "An offense is a strict liability offense if it
punishes a defendant's behavior without regard to the mental
state of the defendant." State v. Polashek, 2002 WI 74, ¶27,
253 Wis. 2d 527, 646 N.W.2d 330. "To convict a defendant of a
31
 No. 2013AP1737-CR & 2013AP218-CR

strict liability offense, the State is not required to prove
that the defendant acted with a culpable state of mind while
committing the offense." Id. "[S]cienter constitutes the rule
in our criminal jurisprudence and is generally presumed even
absent express statutory reference." State v. Weidner, 2000 WI
52, ¶11, 235 Wis. 2d 306, 611 N.W.2d 684. "However, strict
liability criminal statutes are not unknown." Luedtke, 355
Wis. 2d 436, ¶8. In determining whether a statute imposes
strict liability, we have identified six factors for courts to
examine. Jadowski, 272 Wis. 2d 418, ¶¶21-30. These six factors
are: 1) the language of the statute; 2) the language of related
statutes; 3) the legislative history; 4) law enforcement

practicality; 5) protection of the public from harm; and 6) the
severity of the punishment. Id. (citations omitted). These six
factors are sound, and we see no reason to depart from their
application.
¶66 The first factor, the language of the statute, weighs
in favor of strict liability, as the legislature omitted any
requirement that the person know that he has a restricted
controlled substance in his blood. In 2003, the legislature
prohibited operating a motor vehicle while a "person has a
detectable amount of a restricted controlled substance in his or
her blood." 2003 Wisconsin Act 97, sec. 2. Wisconsin Stat.
§ 346.63(1)(am) contains no reference to mental state, and we
have previously explained that when a statute makes no reference
to intent, the statute often imposes strict liability. See
Polashek, 253 Wis. 2d 527, ¶28 ("Often, when the statute makes
32
 No. 2013AP1737-CR & 2013AP218-CR

no reference to intent, we have held that the statute creates a
strict liability offense.") Because the language of the statute
does not contain scienter this factor weighs in favor of strict
liability.
¶67 The second factor, the language of related statutes,
also weighs in favor of strict liability. Related statutes
prohibit 1) the operation of a motor vehicle with a prohibited
alcohol concentration,15 2) the operation of a motor vehicle by a
driver who has not attained the legal drinking age and who has
any alcohol in his or her blood,16 and 3) the operation of a
commercial motor vehicle with any alcohol in the driver's
blood.17 These statutes do not refer to mental state and thus do

not require a showing of state of mind. Had the legislature
intended operating while under the influence crimes to require a
knowledge requirement, we would expect to see such a requirement
in related statutes, but none exists. Because the legislature
has not drafted a scienter requirement into the related

15
Wisconsin Stat. § 346.63(1)(b) states: "No person may
drive or operate a motor vehicle while: The person has a
prohibited alcohol concentration."
16
Wisconsin Stat. § 346.63(2m) states: "If a person has not
attained the legal drinking age, as defined in s. 125.02 (8m),
the person may not drive or operate a motor vehicle while he or
she has an alcohol concentration of more than 0.0 but not more
than 0.08."
17
Wisconsin Stat. § 346.63 (7)(a)1 states: "No person may
drive or operate or be on duty time with respect to a commercial
motor vehicle under any of the following circumstances: While
having an alcohol concentration above 0.0."

33
 No. 2013AP1737-CR & 2013AP218-CR

statutes, we will not read one into this statute. Jadowski, 272
Wis. 2d 418, ¶22.18
¶68 The third factor, the statute's legislative history,
also weighs in favor of strict liability. In the past, we have
explained that "[w]hen the legislature's goal is primarily to
regulate, to accomplish a social good, or to obtain a high
standard of care, proof of a criminal state of mind is often
eliminated to achieve the desired result." State v. Stoehr, 134
Wis. 2d 66, 79, 396 N.W.2d 177 (1986) (citing State v. Collova,
79 Wis. 2d 473, 485, 255 N.W.2d 581 (1977)). The legislative
history of the statute indicates that the legislature was
attempting to regulate, accomplish a social good, and obtain a

high standard of care by eliminating the requirement that an
individual be under the influence of a drug in order to be
criminally liable. See Don Dyke, Wis. Legislative Council Act
Memo: 2003 Wisconsin Act 97, Operating Vehicle or Going Armed

18
Luedtke's reliance on State v. Griffin, 220 Wis. 2d 371,
584 N.W.2d 127 (Ct. App. 1998), is not persuasive. The court of
appeals in Griffin held that "the presence of drugs in Griffin's
urine and blood stream, without more, is insufficient evidence
on which to base a possession conviction." Griffin, 220
Wis. 2d at 381. The court reasoned that "to be found guilty of
possession of a controlled substance in Wisconsin, the defendant
must have had the substance under his or her control and must
have knowingly possessed the substance." Id. (citations
omitted). Griffin may lend support to Luedtke's argument that a
person can unknowingly ingest cocaine. But that assertion has
little relevance to the ultimate questions of whether the
statute at issue imposes strict liability and, if so, whether
the statute is constitutional. Put simply, Luedtke was charged
with operating with a restricted controlled substance in his
blood, not with possession of cocaine.

34
 No. 2013AP1737-CR & 2013AP218-CR

with a Detectable Amount of a Restricted Controlled Substance
(Dec. 16, 2003) [hereinafter Legislative Council Memo]. The
Legislative Council Memo states: "there is no requirement that
the person [be] 'under the influence' of that restricted
controlled substance. Evidence of a detectable amount is
sufficient. It is often difficult to prove that a person who
has used a restricted controlled substance was 'under the
influence' of that substance." Id. In and of itself, this
history would support a determination that this factor weighs
neither in favor nor against strict liability, as it does not
indicate, one way or the other, that the legislature considered
whether the statute would impose strict liability. See id.

However, the Legislative Council Memo goes on to read:

Two defenses are available if a detectable amount of a
restricted controlled substance is found in the
bloodstream: (1) a defense to causing death or injury
if the defendant can prove the injury or death would
have occurred even if the defendant had been
exercising due care and did not have a restricted
controlled substance in his or her blood (this is an
extension of defenses available under current law);
and (2) a defense to having methamphetamine, GHB, or
the active ingredient of marijuana in the bloodstream
if the defendant can show he or she had a valid
prescription for that substance.
Id. at 2. Importantly, "unknowing ingestion" is not listed as a
defense.
¶69 Further, the legislative history indicates that the
legislature intended to make prosecutions easier, by removing
the "under the influence" requirement. Requiring the State to
prove knowledge would undoubtedly make prosecutions more

35
 No. 2013AP1737-CR & 2013AP218-CR

difficult. By removing the "under the influence" requirement
and not providing "unknowing ingestion" as a defense, the
legislature was attempting to regulate drugged driving,
accomplish a social good, and impose a high standard of care on
those who drive after using restricted controlled substances.
¶70 The fourth factor, law enforcement practicality, also
weighs in favor of strict liability. Intent can be difficult to
prove, and, under Luedtke's argument a defendant could assert
that he did not knowingly ingest a restricted controlled
substance and thus escape liability. For example, a defendant
could claim that he accidentally inhaled marijuana smoke, or ate
a piece of candy laced with cocaine. The legislative history

indicates that the legislature intended to make prosecutions
easier. Id. Requiring proof of knowledge or intent is contrary
to the purpose of practical enforcement.
¶71 The fifth factor, the protection of the public from
harm, further weighs in favor of strict liability. The
legislature enacted the statute because drivers who have
restricted controlled substances in their blood are a threat to

36
 No. 2013AP1737-CR & 2013AP218-CR

public safety.19 See State v. Smet, 2005 WI App 263, ¶16, 288
Wis. 2d 525, 709 N.W.2d 474. The legislature created a strict
standard to facilitate the prosecution of drugged driving and to
protect those who travel on the roads. See Jadowski, 272
Wis. 2d 418, ¶24 (holding that legislative purpose of protecting
children weighs in favor of strict liability).
¶72 The sixth factor, the potential penalties imposed, is
neutral. This factor is a "significant consideration in
determining whether a statute should be construed as dispensing
with mens rea." Id., ¶27. "Criminal liability without criminal
intent almost always has involved statutes that impose fines or
short jail sentences." Id. A first-offense violation of

§ 346.63(1)(am) is a civil forfeiture. Wis. Stat.
§ 346.65(2)(am)1. A second offense can result in up to six
months in jail, and a third offense can result in up to one year
in jail. Wis. Stat. § 346.65(2)(am)2-3. A fourth offense can
result in one year in jail, if the individual has a total of
four convictions in their lifetime, or a Class H felony with six
or more months of imprisonment, if the individual has a total of

19
The Institute for Behavior and Health estimates that 20
percent of motor vehicle crashes are caused by drugged driving,
which "translates into 8,600 deaths, 580,000 injuries, and $33
billion in property damage each year in the United States."
Tina Wescott Cafaro, Slipping Through the Cracks: Why Can't We
Stop Drugged Driving?, 32 W. New Eng. L. Rev. 33, 35 (2010).
See also Robert L DuPont, M.D., Drugged Driving Research: A
White Paper 4 (Mar. 31, 2011),
http://stopdruggeddriving.org/pdfs/DruggedDrivingAWhitePaper.pdf
(reporting that one-third of fatally injured drivers with known
test results tested positive for drugs.).

37
 No. 2013AP1737-CR & 2013AP218-CR

four convictions in their lifetime, one of which was in the last
five years. Wis. Stat. § 346.65(2)(am)4-4m. A fifth or
subsequent offense results in a Class H felony for five or six
convictions, a Class G felony for seven, eight, or nine
convictions, and a class F felony for ten or more convictions.
Wis. Stat. § 346.65(2)(am)5-7. These severe penalties for
repeated violations of the statute "support an inference that
the legislature did not intend to impose strict liability." See
Jadowski, 272 Wis. 2d 418, ¶¶27-29. However, this factor is
ultimately neutral because, though any convictions after the
third offense are felonies, the first offense is a civil
forfeiture, and the second and third offenses mandate only short

jail sentences. Nevertheless, "any inference drawn from the
severe penalties is outweighed by the other factors." See id.,
¶29; Polashek, 253 Wis. 2d 527, ¶32 (noting that although six
months of imprisonment indicates a crime of some seriousness, we
have held that some felony criminal statutes impose strict
liability).
¶73 We decline Luedtke's invitation to apply the rule of
lenity. The rule of lenity states "that ambiguous penal
statutes should be interpreted in favor of the defendant."
State v. Cole, 2003 WI 59, ¶67, 262 Wis. 2d 167, 663 N.W.2d 700.
We apply the rule of lenity only if "(1) the penal statute is
ambiguous; and (2) [a court is] unable to clarify the intent of
the legislature by resort to legislative history." Id. Here
the statute is unambiguous and imposes strict liability. The

38
 No. 2013AP1737-CR & 2013AP218-CR

legislature did not include knowledge or intent as an element of
the crime and thus, the rule of lenity does not apply.
¶74 Alternatively, Luedtke argues that, without scienter,
the statute is unconstitutional and violates his substantive due
process rights. "The Due Process Clauses of the United States
and Wisconsin Constitutions protect both substantive and
procedural due process rights." State ex rel. Greer v.
Wiedenhoeft, 2014 WI 19, ¶55, 353 Wis. 2d 307, 845 N.W.2d 373
reconsideration denied sub nom., Greer v. Wiedenhoeft, 2014 WI
50, 354 Wis. 2d 866, 848 N.W.2d 861 (citation and quotations
omitted). "Substantive due process provides protection from
'certain arbitrary, wrongful government actions.'" Id., ¶57

(citation omitted). "Substantive due process forbids a
government from exercising 'power without any reasonable
justification in the service of a legitimate governmental
objective.'" State v. Radke, 2003 WI 7, ¶12, 259 Wis. 2d 13,
657 N.W.2d 66 (citation omitted). For these reasons, strict
liability crimes may violate a person's substantive due process
rights. Wayne R. LaFave, Substantive Due Process, 1 Subst.
Crim. L § 3.3 (2d ed. 2013).
¶75 However, we presume that statutes are constitutional.
Cole, 264 Wis. 2d 520, ¶11. Thus, we "indulge[] every
presumption to sustain the law if at all possible, and if any
doubt exists about a statute's constitutionality, we must
resolve that doubt in favor of constitutionality." Id. (quoting
Aicher v. Wis. Patients Comp. Fund, 2000 WI 98, ¶18, 237
Wis. 2d 99, 613 N.W.2d 849). A party asking this court to find
39
 No. 2013AP1737-CR & 2013AP218-CR

a statute unconstitutional has the burden to prove the statute's
unconstitutionality beyond a reasonable doubt. State v. Wood,
2010 WI 17, ¶15, 323 Wis. 2d 321, 780 N.W.2d 63 (citation
omitted).
¶76 We apply rational basis scrutiny to this statute
because the statute does not implicate a fundamental right or
suspect class. See State v. Smith, 2010 WI 16, ¶12, 323
Wis. 2d 377, 780 N.W.2d 90; Smet, 288 Wis. 2d 525, ¶¶21-26.
Rational basis scrutiny is satisfied if the statute is
rationally related to achieving a legitimate governmental
interest. Smith, 323 Wis. 2d 377, ¶12. When faced with a
substantive due process challenge, we examine "whether the

statute is a reasonable and rational means to the legislative
end." Smet, 288 Wis. 2d 525, ¶11.
¶77 In the present case, rational basis scrutiny is
satisfied because the statute is rationally related to achieving
public safety. Id., ¶17. We agree with the court of appeals
that "[i]n addressing the problem of drugged driving, the
legislature could have reasonably and rationally concluded that
'proscribed substances range widely in purity and potency and
thus may be unpredictable in their duration and effect.'"
Luedtke, 355 Wis. 2d 436, ¶17 (citation omitted). Though it may
be more difficult to deter people from driving after unknowingly
ingesting a restricted controlled substance, such drivers are at
least as dangerous as those who knowingly ingest a restricted
controlled substance. Further, because no "reliable measure" of
impairment exists for many illicit drugs, the legislature could
40
 No. 2013AP1737-CR & 2013AP218-CR

have reasonably concluded that the more sensible approach was to
ban drivers from having any amount in their systems. Smet, 288
Wis. 2d 525, ¶17. The legislature could rationally conclude
that a strict liability, zero-tolerance approach is the best way
to combat drugged driving. Ultimately, we are "satisfied that
prohibiting operation of a motor vehicle while having a
detectable amount of a restricted controlled substance in one's
blood [without proof of scienter] bears a reasonable and
rational relationship to the purpose or objective of the
statute, and that the statute is not fundamentally unfair."
Id., ¶20. Wisconsin Stat. § 346.63(1)(am) presents no due
process violation and is constitutional.20

¶78 Therefore, because the statute is a strict liability
offense and is constitutional, Luedtke is not entitled to a new
trial in the interest of justice. Because the jury did not have
to determine whether or not Luedtke knew he ingested cocaine,
the real controversy was fully tried. Bannister, 302
Wis. 2d 158, ¶43.
IV. CONCLUSION

20
Luedtke argues that the statute punishes those who
accidentally ingest cocaine. He does not argue that he
accidentally ingested cocaine. Luedtke merely argues that it
was possible that it happened because "he does not use cocaine."
Further, Luedtke cites to studies that show cocaine is present
on paper currency and in lakes, but does not explain how such
exposure could result in a positive blood test. We decline to
address this undeveloped argument.

41
 No. 2013AP1737-CR & 2013AP218-CR

¶79 First, based on precedent, we hold that, in the
context of evidence preservation and destruction, the Wisconsin
Constitution does not provide greater due process protection
under Article 1, Section 8, Clause 1 than the United States
Constitution under either the Fifth or Fourteenth Amendments.
As a result, Youngblood controls. Accordingly, in order to
prevail, Luedtke and Weissinger must show that the State
(1) failed to preserve evidence that was apparently exculpatory,
or (2) acted in bad faith by failing to preserve evidence that
was potentially exculpatory. Greenwold II, 189 Wis. 2d at 67.
Luedtke and Weissinger's blood samples were neither apparently
exculpatory nor destroyed in bad faith; therefore, the State did

not violate their due process rights.
¶80 Second, we hold that operating a motor vehicle with a
detectable amount of a restricted controlled substance in the
blood under Wis. Stat. § 346.63(1)(am) is a strict liability
offense that does not require scienter, and is constitutional.
We therefore affirm the court of appeals.
By the Court.—The decision of the court of appeals in each
of the two cases is affirmed.

42
 No. 2013AP1737-CR & 2013AP218-CR.ssa

¶81 SHIRLEY S. ABRAHAMSON, C.J. (concurring). The issue
before the court is whether the State violated the defendants'
due process rights (protected under the Wisconsin Constitution)
when a laboratory, following routine practice, destroyed the
defendants' blood samples. Neither defendant had an opportunity
to independently test his sample.
¶82 These cases raise the broader question of the capacity
of the defendant, as a matter of due process law, to gain access

to evidence the defendant may use at trial.
¶83 The court takes two approaches in deciding that the
defendants lose:
¶84 The first approach is to deny that the Wisconsin
constitution offers greater protection than the United States
Constitution. Rather, the court holds that the United States
Supreme Court decision in Arizona v. Youngblood, 488 U.S. 51

(1988), interpreting the federal constitutional due process

guaranty, applies to the Wisconsin constitutional guaranty of
due process.
¶85 The second approach is to assert that the court is
bound, under the doctrine of stare decisis, by its prior
decisions adopting Youngblood.
¶86 I take a third approach to the present cases. I do
not rely on the due process clause of the Wisconsin
Constitution. I would require that hereafter a circuit court is
to instruct the fact finder in cases like the instant cases that
the fact finder may, but need not, infer that the destroyed

1
 No. 2013AP1737-CR & 2013AP218-CR.ssa

evidence would have been favorable to the defense. If hereafter
such a jury instruction is not given, the cause should be
remanded for a new trial.
I
¶87 First, I disagree with the court's persistent
antipathy to construing the Wisconsin Constitution's Declaration
of Rights differently from the way the United States Supreme
Court construes an analogous provision in the federal
constitution. Federal jurisprudence is persuasive and helpful,

but this court must make an independent judgment considering
competing principles and policies under the Wisconsin
Constitution.
¶88 We should follow our earlier precedent regarding
interpretation of the Wisconsin Constitution. Ten years ago,
the court emphasized that the similarity between the language in
the Wisconsin Constitution and the language in the United States
Constitution is not conclusive.

• In State v. Knapp, 2005 WI 127, ¶60, 285 Wis. 2d 86,
700 N.W.2d 899, the court stated: "While textual
similarity or identity is important when determining
when to depart from federal constitutional
jurisprudence, it cannot be conclusive, lest this
court forfeit its power to interpret its own
constitution to the federal judiciary. The people of
this state shaped our constitution, and it is our
solemn responsibility to interpret it. Federal
jurisprudence is persuasive and helpful, but we must

2
 No. 2013AP1737-CR & 2013AP218-CR.ssa

save independent judgment for considering competing
principles and policies under the Wisconsin
Constitution."1 (Citation omitted.)
• In State v. Dubose, 2005 WI 126, ¶41, 285 Wis. 2d 143,
699 N.W.2d 582, the court stated: "[W]hile this
results in a divergence of meaning between words which
are the same in both federal and state constitutions,
the system of federalism envisaged by the United
States Constitution tolerates such divergence where

the result is greater protection of individual rights
under state law than under federal law. . . ."
(Quoted source omitted.)
¶89 In keeping with my oath of office to support the
Wisconsin Constitution and the Constitution of the United
States, I adhere to Knapp and Dubose and to State v. Doe, 78

Wis. 2d 161, 172, 254 N.W.2d 210 (1977), decided more than 35
years ago: The court "will not be bound by the minimums which

are imposed by the Supreme Court of the United States if it is
the judgment of this court that the Constitution of Wisconsin
and the laws of this state require that greater protection of
citizen's liberties ought to be afforded."

1
See State v. Knapp, 2005 WI 127, ¶¶55-81, 285 Wis. 2d 86,
700 N.W.2d 899; id., ¶¶84-94 (Crooks, J., concurring, joined by
Abrahamson, C.J., Bradley, J., & Butler, J.). Justice Crooks
relied on Davenport v. Garcia, 834 S.W. 2d 4, 12 (Tex. 1992),
declaring: "When a state court interprets the constitution of
its state merely as a restatement of the Federal Constitution,
it both insults the dignity of the state charter and denies
citizens the fullest protection of their rights."

3
 No. 2013AP1737-CR & 2013AP218-CR.ssa

¶90 The court must make this judgment in each case.
¶91 The majority opinion applies Arizona v. Youngblood to
interpret the Wisconsin constitution. Youngblood is a
troublesome case.
II
¶92 Second, the majority opinion relies on Wisconsin
precedent. See State v. Greenwold (Greenwold II), 189
Wis. 2d 59, 68-69, 525 N.W.2d 294 (Ct. App. 1994).
¶93 Stare decisis, "let the decision stand," is an

essential bedrock principle in our system of justice. To
overrule precedent requires special justification. "A court
must keep in mind that it does 'more damage to the rule of law
by obstinately refusing to admit errors, thereby perpetuating
injustice, than by overturning an erroneous decision.'"2

¶94 The court has set forth the following factors that
typically contribute to a decision to overturn prior case law:
• Changes or developments have undermined the rationale

behind a decision;
• There is a need to make a decision correspond to newly
ascertained facts;
• There is a showing that the precedent has become
detrimental to coherence and consistency in the law;
• The prior decision is "unsound in principle;"
• The prior decision is "unworkable" in practice;
• The prior decision was not correctly decided; and

2
Bartholomew v. Wis. Patients Comp. Fund, 2006 WI 91, ¶34,
293 Wis. 2d 38, 717 N.W.2d 216.

4
 No. 2013AP1737-CR & 2013AP218-CR.ssa

• The prior decision has not produced a settled body of
law.3
¶95 These factors are sufficiently implicated in the
present case to justify overturning Greennwold, as demonstrated
by Judge Brown's concurrence and Judge Reilly's dissent in the
Weissinger decision in the court of appeals.
¶96 Judge Brown wrote in concurrence: Youngblood "sets up
an illusion. . . . The bad faith component devised by the
Supreme Court sets such a high bar, it is virtually impossible

to overcome."4 Judge Brown compiled a comprehensive review of
criticism levied against the Youngblood bad faith requirement by
state courts and commentators alike.5 The fact that only 7 out
of 1,500 published cases citing Youngblood found bad faith
illustrates the inherent unfairness in the Youngblood test.
¶97 Judge Reilly wrote in dissent: "A criminal justice
system that allows the government to destroy the sole evidence
of a person's guilt prior to notice, charging, or a meaningful

opportunity for the accused to inspect the State's evidence is
fundamentally unfair."6

3
Johnson Controls, Inc. v. Employers Ins. Of Wausau, 2003
WI 108, ¶¶94, 99, 100, 264 Wis. 2d 60, 665 N.W.2d 257.
4
State v. Weissinger, 2014 WI App 73, ¶29, 355 Wis. 2d 546,
851 N.W.2d 780 (Brown, C.J., concurring).
5
See id., ¶30, n.1 (Brown, C.J., concurring).
6
Weissinger, 355 Wis. 2d 546, ¶31 (Reilly, J., dissenting).

5
 No. 2013AP1737-CR & 2013AP218-CR.ssa

¶98 I share these judges' unease with the federal standard
set forth in Youngblood (and adopted by Wisconsin case law).7
¶99 The Youngblood and Greenwold II decisions do not give
meaningful protection to a defendant. "Ironically, the rule of
law established by [Youngblood] was founded upon the conviction
of an innocent man."8
¶100 There is an emerging consensus among courts that have
considered the issue that the bad faith standard does not go far
enough to protect adequately the rights of a person charged with

a crime. I agree with those courts that viewed the bad faith
requirement as a "potentially bottomless pit for a defendant's
interest in a fair trial, and stepped back from the brink."9 I
take a third approach to the instant cases.
III
¶101 I conclude that under the circumstances of these cases
the court should moderate Youngblood and Greenwold. One way of

7
State v. Greenwold, 189 Wis. 2d 59, 67, 525 N.W.2d 294
(Ct. App. 1994) (Greenwold II); see majority op., ¶53.
8
Norman C. Bay, Old Blood, Bad Blood, and Youngblood: Due
Process, Lost Evidence, and the Limits of Bad Faith, 86 Wash. U.
L. Rev. 241, 243 (2008). See also 6 Wayne R. LaFave, Criminal
Procedure § 24.3(e) at 388-89 (3d ed. 2007).
9
Cost v. State, 10 A.3d 184, 195 (Md. 2010).

Numerous states have rejected Arizona v. Youngblood, on
state constitutional grounds. Cynthia E. Jones, The Right
Remedy for the Wrongly Convicted: Judicial Sanctions for
Destruction of DNA Evidence, 77 Fordham L. Rev. 2893 (2009);
Norman C. Bay, Old Blood, Bad Blood, and Youngblood: Due
Process, Lost Evidence, and the Limits of Bad Faith, 86 Wash. U.
L. Rev. 279 (2008); Illinois v. Fisher, 540 U.S. 544, 549 n.*
(2004) (Stevens, J., concurring).

6
 No. 2013AP1737-CR & 2013AP218-CR.ssa

helping to alleviate the concern about destroyed evidence and
ease the fundamental unfairness of the Youngblood bad-faith
requirement is to require an instruction that states that the
fact finder may, but need not, infer that evidence destroyed
would have been favorable to the defense.10
¶102 This court often governs evidence in the circuit
courts and requiring a curative instruction is not unusual in
Wisconsin law.11 Indeed, this court relies on curative
instructions with frequency. A curative instruction has been

adopted by courts in other states in cases like the present
cases.12

¶103 If hereafter such a jury instruction is not given in
cases such as the instant cases, the cause should be remanded
for a new trial.
¶104 I favor this approach because there should be
consequences for even innocent or negligent loss or destruction

10
The instruction I propose would not be given when it is
necessary for the sample to be destroyed to perform the test.
See State v. Ehlen, 119 Wis. 2d 451, 351 N.W.2d 503 (1984).
11
This court has superintending authority over all courts.
Wis. Const. art. VII, § 3(1). See In re Jerrell C.J., 2005 WI
105, ¶3, 48, 283 Wis. 2d 145, 699 N.W.2d 110; see also id.,
¶¶71-94, (Abrahamson, C.J., concurring); Arneson v. Jezwinski,
206 Wis. 2d 217, 226, 556 N.W.2d 721 (1996) ("'The
superintending power is as broad and as flexible as necessary to
insure the due administration of justice in the courts of this
state.'" (citation omitted)).
12
See, e.g., People v. Handy, 988 N.E. 2d 879, 882 (N.Y.
2013) ("An adverse inference charge mitigates the harm done to
defendant by the loss of evidence without terminating the
prosecution."); State v. Glissendorf, 329 P.3d 1049 (Ariz. 2014)
(instruction regarding inference is required under state law).

7
 No. 2013AP1737-CR & 2013AP218-CR.ssa

of evidence to deter the State from losing or destroying
evidence and to ensure that defendants do not bear the total
burden of the State's conduct.13 The inference instruction takes
into account the State's explanation of the destruction of the
evidence by permitting the fact finder to draw an adverse
inference from the destruction when the fact finder determines
that the State's explanation of the loss or destruction is
inadequate.
¶105 Finally, I note that the invocation of a curative

instruction is especially important in light of recent cases
developing the law of evidence in this state. It is arguable
that defendants are being given fewer and fewer opportunities to
assess evidence against them.
¶106 For example, in State v. O'Brien, 2014 WI 54, ¶49, 354

Wis. 2d 753, 850 N.W.2d 8, the court upheld the use of hearsay
evidence at preliminary hearings, thus reducing a defendant's
right of cross-examination. In State v. Griep, 2015 WI ___, ___

Wis. 2d ___, ___ N.W.2d ___, the court concludes that the State
does not violate the federal and state constitutional
confrontation clauses by not calling as a witness the person who
tested the defendant's blood at the laboratory and filed the
report.

13
For a discussion of mistakes made in crime laboratories,
a failing score of the Wisconsin State Laboratory of Hygiene,
and the limitations on the defendant in cross-examination, see
Judge Reilly's dissent in Weissinger, 355 Wis. 2d 546, ¶¶44-45.

8
 No. 2013AP1737-CR & 2013AP218-CR.ssa

¶107 If the defendant's ability to cross-examine witnesses
is being reduced, there is all the more reason to be sure that a
defendant has the opportunity to independently test blood and
challenge the State's evidence of the blood sample.
¶108 I concur (rather than dissent) because this
instruction was not required at the time these cases were tried.
Argument was made by counsel about missing evidence, but an
instruction has more force and effect because it carries the
imprimatur of a judge.14

¶109 For the reasons set forth, I write separately.

14
Cost v. State, 10 A.3d 184, 196-97 (Md. 2010).

9
 No. 2013AP1737-CR & 2013AP218-CR.ssa

1