State of Wisconsin v. Friedman

COURT OF APPEALS
DECISION
DATED AND FILED

May 23, 2007

David R. Schanker
Clerk of Court of Appeals

Appeal No. 2006AP2916-CR
STATE OF WISCONSIN

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

MICHAEL E. FRIEDMAN,

DEFENDANT-APPELLANT.

NOTICE

This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.

A party may file with the Supreme Court a
petition to review an adverse decision by the
Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Cir. Ct. No. 2004CT678

IN COURT OF APPEALS
DISTRICT II

APPEAL from a judgment of the circuit court for Walworth County:

ROBERT A. KENNEDY, Judge. Reversed and cause remanded with directions.

No. 2006AP2916-CR

¶1

SNYDER, P.J.1 Michael E. Friedman appeals from a judgment

convicting him of operating a motor vehicle while under the influence of an

intoxicant (OWI) and for operating a motor vehicle with a prohibited alcohol

concentration (PAC), both fourth offenses. He contends the circuit court erred in

several respects. He argues that the results of the chemical test of his blood should

have been suppressed, that evidence relating to his refusal to take a preliminary

breath test (PBT) was improperly admitted, and that certain testimony from a

witness for the State should have resulted in a mistrial. Because we conclude that

the preliminary breath test refusal evidence was improperly admitted and there is a

substantial likelihood that it affected the outcome of the trial, we remand the

matter for a new trial.

BACKGROUND

¶2

On August 14, 2004, Officer Daniel Lauderdale of the Williams Bay

Police Department was on patrol working the stationary radar. At approximately

1:00 a.m., Lauderdale observed a black convertible with its top down approaching

at a high rate of speed. As the vehicle passed by, the radar indicated it was going

thirty-seven miles per hour in a zone with a posted limit of twenty-five miles per

hour. Lauderdale continued to track the vehicle with his radar and observed that it

reached speeds as high as forty miles per hour, though the speed limit had not

changed. Lauderdale then pursued the vehicle through the downtown area and

noted that he reached speeds of fifty-five and seventy miles an hour while trying to

catch up.

1 This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2005-06).
All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise indicated.

No. 2006AP2916-CR

¶3

Lauderdale eventually caught up to the convertible and activated the

red lights on his squad car. The car pulled over at approximately the same

location where Lauderdale ’ s partner, Officer Borgan, was waiting. Lauderdale

approached the convertible and the driver was already searching through a stack of

plastic cards, which Lauderdale assumed meant the driver was looking for his

license. Lauderdale noticed an odor of intoxicants as he waited. After

approximately ninety seconds, Lauderdale noticed what appeared to be an Illinois

traffic citation fall into the driver ’ s lap. Using the information on the citation,

Lauderdale identified the driver of the convertible as Friedman.

¶4

In light of the odor of intoxicants and Friedman ’ s fumbling with the

plastic cards and traffic citation, which demonstrated problems with dexterity and

physical motor skills, Lauderdale suspected Friedman had been drinking.

Friedman denied having consumed any alcohol. Lauderdale informed Friedman

that he had clocked him speeding and Friedman denied that he had been going

over thirty miles per hour. Then Friedman stated, “ This night can’ t get any worse

for me. Go ahead and ruin my life. And you might as well just put a gun to my

head.”

¶5

Lauderdale then ran a driver ’ s license check and learned that

Friedman did not have a valid Wisconsin license, but did have an Illinois license

that had been suspended. Lauderdale returned to Friedman ’ s vehicle and asked

Friedman to step out of the car. The odor of intoxicants followed Friedman who

then admitted he had been drinking about an hour and a half earlier.

¶6

Lauderdale asked Friedman to perform field sobriety tests, beginning

with the Horizontal Gaze Nystagmus test. Friedman indicated he would

cooperate, but failed to follow Lauderdale ’ s instructions and eventually refused to

No. 2006AP2916-CR

continue. Next, Lauderdale asked Friedman to perform a one-leg stand test but

Friedman refused, citing a prior surgery on his left hip that affected his balance.

Lauderdale then requested that Friedman perform the heel-to-toe walking test and

again Friedman refused. Friedman then proceeded to do his own version of heel-

to-toe walking by stomping away from Lauderdale, raising his arms for balance,

and then turning around and returning to Lauderdale with the same stomping

steps. Lauderdale then asked Friedman to submit to a preliminary breath test.

Friedman refused, stating that “ his attorney friends had told him never to do that. ”

¶7

Lauderdale then placed Friedman under arrest for OWI and took him

to the police station. Lauderdale read the Informing the Accused form to

Friedman and then asked him to submit to an evidentiary chemical test of his

breath. Friedman refused. Lauderdale read the form in its entirety once more to

Friedman, this time requesting that Friedman submit to an evidentiary chemical

test of his blood. Friedman refused. Lauderdale told Friedman that he could

forcibly take the sample and then proceeded to Mercy Walworth Medical Center

for an involuntary blood draw. Friedman ’ s blood samples were packaged and

sealed at the medical center and Lauderdale took them back to the police

department for storage in a department refrigerator. The samples were tested at

the Wisconsin State Laboratory of Hygiene and the results showed .191 grams of

ethanol per 100 milliliters of Friedman’ s blood.

¶8

The State charged Friedman with OWI and operating a motor

vehicle with a prohibited alcohol content, contrary to WIS. STAT. §§ 346.63(1)(a)

and (b). Following a jury trial, Friedman was convicted on both counts, ultimately

designated as fourth offenses. He now appeals.

No. 2006AP2916-CR

DISCUSSION

¶9

Friedman raises multiple issues on appeal. He first argues that the

circuit court erred in failing to suppress the results of the blood test for a violation

of the Health Insurance Portability and Accountability Act of 1996 (HIPAA). See

Pub. L. No. 104-191, 110 Stat. 1936; 42 U.S.C. § 1320d-6 (2006). He further

contends that the court erred on several evidentiary rulings during the trial. He

contends that the court should have excluded evidence of his refusal to take the

PBT, should not have allowed the State to introduce the results of the blood test

without establishing a chain of custody, and improperly prevented the defense

from eliciting evidence and arguing its theory that Friedman’ s blood samples were

contaminated. Finally, he argues that the court should have granted a mistrial

when Lauderdale ’ s testimony tipped the jury to the fact that Friedman had prior

OWI convictions.

¶10 We disagree with Friedman ’ s argument that HIPAA requires

suppression of Friedman’ s blood test results. We agree, however, that Friedman’ s

refusal to submit to the PBT should not have been presented to the jury and that

the State ’ s heavy reliance on

this

inadmissible evidence was harmful.

Accordingly, we remand the case for a new trial. Friedman ’ s other claims of

evidentiary error are resolved by our order for a new trial; therefore, we need not

address them individually.

¶11 We turn first to Friedman ’ s claim that the circuit court erred when it

did not suppress the blood test results. In a very fact-driven argument that

navigates the HIPAA law and its many exceptions, Friedman asserts that HIPAA

prevents the disclosure of his blood test results. He correctly observes that HIPAA

has established standards for privacy in medical care and specifically limits the

No. 2006AP2916-CR

dissemination of an individual’ s health information. Friedman argues that because

he did not consent to the blood draw or release of the results, because the blood

was taken in a hospital setting where other medical services were provided, and

because he paid the bill for the blood draw, the results constitute health

information protected by HIPAA ’ s privacy provisions.

¶12 We disagree. First, Friedman ’ s attempt to wedge the evidentiary

chemical blood test under the caption of “ health care ” fails. The purpose of the

blood test under Wisconsin’ s implied consent law is to determine “ the presence or

quantity” of alcohol in the blood. See WIS. STAT. § 343.305(2). It does not, as

HIPAA requires, address “ care, services, or supplies related to the health of an
individual. ” See 45 C.F.R. § 160.103 (2006).2 HIPAA ’ s privacy protection

extends to “ health information,” which is defined as information that is related to

the “ past, present, or future physical or mental health or condition of an

individual, ” the provision of health services, or payment for health care services.
See 45 C.F.R. § 160.103.3

¶13 Furthermore, a statutory blood draw for evidentiary purposes does

not fall under the definition of health care and the results do not constitute health

information as contemplated by Wisconsin law. WISCONSIN STAT. § 146.81,

2 Health care means care, services, or supplies related to the health of an individual.
Health care includes, but is not limited to, the following: “ (1) Preventive, diagnostic, therapeutic,
rehabilitative, maintenance, or palliative care, and counseling, service, assessment, or procedure
with respect to the physical or mental condition, or functional status, of an individual or that
affects the structure or function of the body.” See 45 C.F.R. § 160.103 (2006). All references to
the code of Federal Regulations are to the 2006 version.

3 “ Health information means any information, that …
[r]elates to the past, present, or
future physical or mental health or condition of an individual; the provision of health care to an
individual; or the past, present, or future payment for the provision of health care to an
individual.” 45 C.F.R. § 160.103.

No. 2006AP2916-CR

defining health care records, explicitly excludes tests administered under WIS.

STAT. § 343.305 from the definition of “ patient health care records. ” WIS. STAT.

§ 146.81(4). We are not persuaded that what amounts to a billing error brings the

blood draw within the bounds of protected health care information. Further, the

fact that the blood draw was performed at a medical center by medical personnel is

not controlling. Friedman’ s attempt to distinguish the blood draw that was done in

the context of his arrest from a § 343.305(2) blood draw generally fails.

¶14 Finally, even if we concluded that the blood draw and results

constituted protected health care information, HIPAA allows disclosure of such

information to law enforcement officers “ [a]s required by law.” See 45 C.F.R.

§ 164.512(f)(1)(i). Under Wisconsin law, patient health care records “ shall remain

confidential” ; however, a health care provider may report a physical condition that

“ affects the patient’ s ability to exercise reasonable and ordinary control over a

motor vehicle …

without the informed consent of the patient.” See WIS. STAT.

§ 146.82(1) and (3)(a). For all of the reasons stated, we reject Friedman’ s attempt

to invoke HIPAA to exclude the results of the evidentiary chemical test of his

blood.

¶15 We move to Friedman ’ s next argument. He contends that the court

improperly allowed the jury to hear evidence of his refusal to take a PBT during

the traffic stop. The State responds that the refusal evidence was not elicited for

the purpose of proving Friedman was

intoxicated, but rather

to show

consciousness of guilt. The State argues that a driver ’ s refusal to submit to field

sobriety tests is admissible for this purpose and therefore refusal to submit to the

PBT is admissible as well. The State first directs us to State v. Babbitt, 188

Wis. 2d 349, 359-60, 525 N.W.2d 102 (Ct. App. 1994), and State v. Mallick, 210

Wis. 2d 427, 434-35, 565 N.W.2d 245 (Ct. App. 1997), for the proposition that a

No. 2006AP2916-CR

driver ’ s refusal to perform field sobriety tests is admissible to show consciousness

of guilt. The State concludes that a PBT should be treated like any other field

sobriety test and the refusal to perform one is properly admitted when offered to

show consciousness of guilt as part of the State ’ s case in chief.

¶16 We are not persuaded. The PBT is not the same as any other field

sobriety test. Unlike a standard field sobriety test such as the one-leg stand or

walk-and-turn tests, the PBT is not based on the officer ’ s own observations and

assessments. It is akin to a polygraph test in the sense that it involves technology

that lends scientific credibility to the evidence where such credibility is

unwarranted. As we have stated before, “ The PBT device has not been approved

by the DOT and does not receive a prima facie presumption of accuracy to

establish a defendant’ s blood alcohol level.” State v. Doerr, 229 Wis. 2d 616,

624-25, 599 N.W.2d 897 (Ct. App. 1999). When the State offers PBT results into

evidence, it must present evidence related to scientific accuracy and it must prove

compliance with accepted scientific methods as a foundation for admission. Id.

The concern here is that a jury is generally unaware of the scientific imperfection

of the PBT device, and that it might well be more influenced by proof of a driver ’ s

refusal to take the test than by the evidence of adverse results coupled with proof

of its scientific imperfection or inaccuracy.

¶17 The State then offers County of Jefferson v. Renz, 222 Wis. 2d 424,

443, 588 N.W.2d 267 (Ct. App. 1998), reversed on other grounds, 231 Wis. 2d

293, 603 N.W.2d 541 (1999), which states that the refusal to submit to a PBT

“ may be considered evidence of consciousness of guilt for purposes of

establishing probable cause to arrest.” In a similar case, we decided that a refusal

to submit to a PBT may be used “ for purposes of determining whether [a

defendant’ s] blood draw was supported by reasonable suspicion.” State v.

No. 2006AP2916-CR

Repenshek, 2004 WI App 229, ¶26, 277 Wis. 2d 780, 691 N.W.2d 369. Again,

these analogies fail. The refusal evidence against Friedman was not offered to

demonstrate reasonable suspicion to proceed with an evidentiary blood draw or to

establish probable cause to arrest. The evidence was offered to persuade the jury

that Friedman refused to take the PBT because he feared it would incriminate him.

By statute, the PBT result “ 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 [the

implied consent statute].” WIS. STAT. § 343.303. The State concedes that the

results of the PBT “ clearly would not have been admissible ” at trial. That which

may not be accomplished directly by evidence of test results may not be

accomplished indirectly by references to whether a defendant declined or was

asked to submit to the test in the first place. Cf. People v. Eickhoff, 471 N.E.2d

1066, 1069 (Ill. App. Ct. 1984) (addressing a defendant’ s refusal to take a

polygraph test, the results of which would have been inadmissible). We conclude

that evidence of Friedman’ s refusal to take the PBT test, the results of which

would have been inadmissible for the purpose offered, is equally inadmissible.

¶18 Finally, the State contends that even if the PBT refusal was

improperly admitted, it was harmless error. An evidentiary error is subject to a

harmless error analysis and requires reversal only when the improperly admitted

evidence has affected the substantial rights of the party seeking relief. State v.

Britt, 203 Wis. 2d 25, 41, 553 N.W.2d 528 (Ct. App. 1996). We will reverse only

where there is a reasonable possibility that the error contributed to the final result.

Id. The State insists that, even absent the PBT refusal, there is overwhelming

evidence to support the conviction. It refers us to the experience of the arresting

officer and his observations on the night of the traffic stop. The State emphasizes

No. 2006AP2916-CR

Friedman’ s inability to complete any field sobriety tests and the evidentiary

chemical test of his blood with a result of .191 grams of ethanol per 100 milliliters

of blood.

¶19 We agree that there was significant evidence to support the

conviction for operating a motor vehicle while intoxicated. Nonetheless, we must

consider whether there is a reasonable possibility that the PBT refusal contributed

to the conviction. See id. Our review of the record demonstrates that such a

possibility exists.

¶20

In its opening statement, the State told the jury that Friedman was

asked to “ submit to a portable breath test at the scene. And he refused to do that. ”

As part of its case-in-chief, the State elicited testimony from Lauderdale as

follows:

Prosecutor: Did you ask [Friedman] to submit to a portable
breath test?

I told him that if he didn ’ t cooperate with
Lauderdale: …
me and follow my instructions …
he would leave me with
no choice but to arrest him for drunk driving, and I
basically pleaded with him to provide me with a sample of
his breath on a preliminary or portable breath testing
instrument. That ’ s a small breath testing instrument that
we carry in our squad cars.

Prosecutor: And did he agree to provide you a sample of
that?

Lauderdale: He indicated that he— No, his attorney friends
had told him never to do that, and he would not do that.

On redirect examination, Lauderdale testified:

Prosecutor: Did Mr. Friedman’ s refusal to provide …
or
submit to a P.B.T. test out in the field contribute at all to
your decision to place him under arrest?

Lauderdale: Yes.

No. 2006AP2916-CR

During closing arguments, the State again raised the fact of the refusal. The

prosecutor asserted, “ [Friedman] is then asked to give a sample of his breath and

told that, you know, if the results come back low, I ’ ll get you a way home, I ’ m not

going to arrest you, and [Friedman] refuses to give a sample of his breath.”

¶21 The PBT testimony foreshadowed in the opening statement and

elicited during the State ’ s case-in-chief provided the jury with evidence that a PBT

was available, that the officer “ basically pleaded ” with Friedman to take the test,

and that the portable testing device was commonly used by police (they carry it in

their squad cars). The jury was told that Friedman would have been allowed to go

home if he would take the PBT and obtain a low result. However, there is no

indication anywhere in the record that the jury was familiar with the scientific

uncertainty of the PBT device. Further there is no indication that the jury was

aware of the differences between the PBT, which carries no statutory sanction for

refusal, and the evidentiary chemical breath test, which carries penalties for refusal

under the implied consent law.

¶22

In summary, we recognize that the PBT refusal could have been

used to establish probable cause, had probable cause been at issue. It is also

possible that under certain circumstances it could be used to rebut evidence

offered by the defense. However, testimony regarding Friedman ’ s refusal to

submit to a PBT is inadmissible on the issue of guilt or innocence in the State ’ s

case in chief. The sole purpose of the PBT is to assist the officer in determining

whether a driver should be placed under arrest, not whether the driver is actually

intoxicated. Thus, a driver ’ s refusal to take a PBT is improperly admitted when it

is intended to weigh on the guilt or innocence of the driver. Accordingly, the

evidence of the refusal was improperly admitted and the error was harmful.

No. 2006AP2916-CR

¶23 Friedman raises other claims of evidentiary error. For example,

Friedman complains that a mistrial should have been granted as a result of an

officer ’ s testimony, which improperly alluded to the fact that Friedman had a prior

drunk driving offense on his record. Also, Friedman complains that the chain of

custody for his blood sample was not established and that the State concealed

relevant documents that should have been produced during discovery. None of the

remaining issues need be addressed because we have resolved the appeal on other

grounds. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938) (if the

decision on one issue disposes of the appeal, the appellate court will not decide the

other issues raised).

CONCLUSION

¶24 We conclude

that HIPAA does not require suppression of

Friedman’ s evidentiary chemical blood test result, which was obtained under the

implied consent law. However, the circuit court erred when it allowed the jury to

hear evidence of Friedman’ s refusal to take a PBT test and the State ’ s emphasis on

this inadmissible evidence raises a reasonable possibility that it contributed to the

conviction. Accordingly, the judgment of conviction is reversed and the matter is

remanded for a new trial.

By the Court.—

Judgment reversed and cause remanded with

directions.

This opinion will not be published. See WIS. STAT. RULE

809.23(1)(b)4.

No. 2006AP2916-CR