State v. Luedtke

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Justia Opinion Summary

Defendants in these two separate cases were found guilty of operating a motor vehicle with a detectable amount of a restricted controlled substance in the blood, among other crimes. The court of appeals affirmed the convictions, concluding that the State did not violate Defendants’ due process rights when the Wisconsin State Laboratory of Hygiene had destroyed their blood samples in accordance with routine procedures before each defendant had the opportunity to test the samples. The Supreme Court affirmed, holding (1) in accordance with Arizona v. Youngblood, because Defendants’ blood samples were neither apparently exculpatory nor destroyed in bad faith, the State did not violate Defendants’ due process rights; and (2) operating a motor vehicle with a detective mount 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 the statute is constitutional.

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2015 WI 42 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2013AP1737-CR & 2013AP218-CR 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: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: April 24, 2015 February 3, 2015 Circuit/Circuit Winnebago/Ozaukee Karen L. Seifert /Sandy A. Williams ABRAHAMSON, C.J., concurs. (Opinion Filed.) 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 Weissinger, the cause was argued by Gerald P. Boyle. briefs by Gerald P. Boyle, and Boyle, Boyle & M. There were 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 Clerk of Supreme Court Defendant-Appellant-Petitioner. State of Wisconsin, Plaintiff-Respondent, v. Jessica M. Weissinger, Defendant-Appellant-Petitioner. REVIEW of a decision of the Court of Appeals. ¶1 MICHAEL J. GABLEMAN, J. This is a Affirmed. 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) (200910),1 and one count of operating a motor vehicle with 1 a 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 eighth, metabolite, or benzoylecgonine2) ninth offense, in the contrary blood, to seventh, Wis. Stat. § 346.63(1)(am).3 The jury found Luedtke not guilty of operating a while motor vehicle 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 The Winnebago County circuit court4 withheld a sentence blood. 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, webster.com/dictionary/benzoylecgonine 2015). (last http://www.merriamvisited Feb. 9, 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. operating a motor vehicle with a 2013AP1737-CR & 2013AP218-CR 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. ¶1. Further, constitutional. ¶5 Office the court Luedtke, 355 Wis. 2d 436, concluded that the statute was Id. In Weissinger, the Ozaukee County District Attorney's 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 blood sample before she had the opportunity to test it. her The Ozaukee County circuit court7 denied the motion, and the jury subsequently withheld a found her sentence on guilty both of both counts and counts. placed The court 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 sample in accordance with its routine procedures. her blood Weissinger, 355 Wis. 2d 546, ¶1. ¶6 Two issues are presented for our review. applicable to both parties, is whether the The first, 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, controls. Weissinger Arizona v. Accordingly, must show Youngblood, in that order the 488 to State U.S. prevail, (1) failed 51 (1988), Luedtke to and preserve evidence that was apparently exculpatory, or (2) acted in bad faith by failing exculpatory. N.W.2d 294 to State (Ct. App. preserve v. evidence Greenwold, 1994) 189 (Greenwold that was potentially Wis. 2d 59, II). 67, 525 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. ¶8 2013AP1737-CR & 2013AP218-CR 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, rearended 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. prescription Luedtke admitted that he had taken several 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. residue. In his initial 2013AP1737-CR & 2013AP218-CR interactions with Luedtke, Officer Framke did not notice any significant signs of intoxication but concluded standard that field Luedtke was sobriety impaired tests. after Detective Luedtke Brett failed 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. poor performance on the sobriety Luedtke claimed that his tests was due to prior injuries, his misunderstanding of the directions, and injuries that he sustained during the accident. Detective Robertson also observed Luedtke's Luedtke fresh admitted puncture that marks while near he did inject right thumb. 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. Thomas Neuser alcohol. ("Neuser") The indicating Luedtke's tested Laboratory that On May 1, 2009, Advanced Chemist Luedtke's generated blood a tested blood report sample in negative May for for 2009 alcohol. The report stated that "Specimen(s) will be retained no longer than six months unless otherwise requested by agency or subject." ¶13 On comprehensive November Gas 18, 2009, Chromatograph ("GCMSD") drug panel screen. the sample with Mass underwent Selective a more Detector This test indicated the presence of the anti-depressant venlafaxine, the narcotic methadone, and the anti-anxiety medication diazepam, all within the therapeutic range. at The test results also indicated the presence of cocaine, less 12 than 20 nanograms12 per milliliter, A nanogram is one billionth of a gram. 9 and the cocaine No. metabolite benzoylecgonine, at 330 2013AP1737-CR & 2013AP218-CR 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 restricted a motor vehicle controlled benzoylecgonine) in with substance the a detectable (cocaine blood, and seventh, amount its eighth, of a metabolite, 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 jury. On April 17, 2012, the State tried Luedtke before a 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 false positive. this discrepancy does not constitute a Luedtke also cross-examined Officer Framke, who admitted that Luedtke did not display signs of impairment during their initial interactions. use of venlafaxine, cocaine use. Luedtke testified and explained his methadone, and diazepam, and denied any 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. closing argument, Luedtke focused destruction of the blood sample. witness, object to any on During his the Laboratory's Luedtke did not call an expert jury instructions, or request any count one, operating under the influence of a controlled substance. The additional information be added to the record. ¶19 jury The found vehicle jury found Luedtke with a Luedtke guilty detectable substance in the blood. of not count amount of guilty two, a of operating restricted a motor controlled On April 17, 2012, the court entered a judgment of conviction, withheld sentence, and placed Luedtke on probation for a period of four years, conditional jail time, imposed and stayed. 11 with 12 months of No. ¶20 On May 31, 2013, Luedtke 2013AP1737-CR & 2013AP218-CR filed a post-conviction motion that challenged the admission into evidence of the blood test result and § 346.63(1)(am). the constitutionality of Wis. Stat. 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 circuit On June 11, 2014, the court of appeals affirmed the court's judgment of court appeals order relief. § 346.63(1)(am) is constitutional. Luedtke, 355 Wis. 2d 436, ¶¶15-19. strict of and postconviction a The conviction liability denying concluded offense that and is The court also concluded that Luedtke failed to show that his blood sample was apparently faith. Id., exculpatory ¶¶22, 24. or that Finally, it the was destroyed court in concluded bad that, despite the blood sample's destruction, Luedtke received a fair trial. ¶22 Id., ¶25-26. 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. when Weissinger applying his turned left brakes, the at 2013AP1737-CR & 2013AP218-CR an intersection. motorcyclist struck Despite 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 arrived Law at enforcement the motorcyclist. scene and and emergency medical administered Investigating Officer personnel treatment Mark Riley to the ("Officer Riley") spoke with Weissinger for about one minute. Officer Riley noted that Weissinger had bloodshot eyes, but acknowledged that this was necessarily consistent indicative with of her emotional impairment. state Officer and Brent not Smith ("Officer Smith") also examined Weissinger and did not believe her to be intoxicated. ¶25 Officer Weissinger However, was Riley under anticipating did the a not influence fatality Weissinger's consent for a transported Weissinger to the Department vehicle. initially that drugs or alcohol. investigation, he obtained blood of believe draw. hospital in Officer a Riley Mequon Police 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. warning before her blood draw. 2013AP1737-CR & 2013AP218-CR 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 acceptable. the return of the sample to the police were 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 2010 The Laboratory mailed the July 2009 report and March report to received them. Weissinger, though she claims that she never In late April 2010, the Laboratory discarded her blood sample in accordance with its routine practice. 14 No. ¶29 On May 24, 2010, the 2013AP1737-CR & 2013AP218-CR 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. to retest the sample. that it had Soon after, she filed a formal motion In May 2011, the Laboratory informed her 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 jury. From April 23-24, 2012, the case was tried before a 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. that testing is During cross-examination, Miles acknowledged not infallible and that she had no certain evidence or direct knowledge of whether Weissinger received the Laboratory's reports. blood test results, Miles also testified that, based on the Weissinger was likely a regular user of marijuana and probably had consumed the substance within a few hours before the accident, certainly 15 within 24 hours. The 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 prohibited sample the because State it from no longer indicating existed. that The Weissinger court 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. ¶1. Weissinger, 355 Wis. 2d 546, The court reasoned that pursuant to Youngblood, Weissinger failed to show either that the blood sample was exculpatory or that it was destroyed in bad faith. ¶35 Judge Reilly dissented. apparently Id., ¶19. 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 State's evidence is fundamentally unfair." J., dissenting). inapplicable in the Judge present Reilly case 16 inspect the Id., ¶31 (Reilly, argued because to Youngblood Weissinger's was blood No. sample had inculpatory evidentiary significance." ¶36 Weissinger value, 2013AP1737-CR & 2013AP218-CR not merely "conceivable Id., ¶38 (Reilly, J., dissenting). 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 . . . ." Wis. 2d 455, 832 State v. Neumann, 2013 WI 58, ¶32, 348 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 demonstrate that the reasonable doubt." a statute's statute is constitutionality unconstitutional must beyond [] a Id. III. DISCUSSION A. Youngblood Controls ¶39 that the Luedtke and Weissinger's primary argument on appeal is Wisconsin Constitution 17 provides greater due process No. 2013AP1737-CR & 2013AP218-CR protections than the United States Constitution in the context of evidence preservation and destruction. on our precedent preservation and we hold that, destruction, in the the We disagree. context Wisconsin of Based evidence 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. Arizona v. Youngblood, controls. As a result, 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 potentially exculpatory. to preserve evidence that was 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 scrupulously law." WI court because follows of our the doctrine abiding respect of for stare the decisis rule of Johnson Controls, Inc. v. Employers Ins. of Wausau, 2003 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 N.W.2d 266 (citations and quotations omitted). 18 Wis. 2d 19, 653 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, principles . . . and integrity of Wis. 2d 481, the and contributes judicial 504, consistent 579 to the process." N.W.2d 654 development of actual perceived State (1998) and v. legal Ferron, (quoting Payne 219 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. N.W.2d 492 (1984); N.W.2d 503 (1984); N.W.2d 469 (1984). a due process State v. State 2013AP1737-CR & 2013AP218-CR Ehlen, v. 119 Walstad, Wis. 2d 451, Wis. 2d 483, 119 351 351 This precedent requires that, to prevail on 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. breath sample trial. in order to 2013AP1737-CR & 2013AP218-CR introduce Trombetta, 67 U.S. at 491. breathalyzer results at 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 practice. and in accordance with normal evidence retention Id. at 488. ¶44 In principle. Youngblood, the Supreme Court reaffirmed this The Court noted "the importance for constitutional purposes of good or bad faith on the part of the Government when the claim is based Government." on loss Youngblood, of 488 evidence U.S. at attributable 57. The to 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, Wis. 2d 113, 152 130, 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. ¶46 2013AP1737-CR & 2013AP218-CR 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 official to preserve; animus or made exculpatory evidence." and a (2) the conscious Id. at 69. officers effort acted to with suppress 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 does not Though our precedent is clear that destruction alone 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 Wisconsin In Dubose, we held that Article I, Section 8 of the Constitution contained 14 a broader due process right 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. ¶41. Dubose, 285 Wis. 2d 143, However, we restricted this broader right to the specific context of Id., ¶45. an identification procedure known as a "showup." "A showup is an out-of-court pretrial identification procedure in which a suspect is presented singly to a witness for identification purposes." citation omitted). Id., ¶1 n.1 (quotations and 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 Id., ¶¶33, 45. greater reducing in that contributed risk of a misidentification." We held that the Wisconsin Constitution provided protection demonstrated the to this context unreliable wrongful because new eyewitness convictions, studies identification thereby providing compelling justification for overruling precedent. 30, 33. had a Id., ¶¶29- 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 Wisconsin of broader Constitution Constitution. Wis. 2d 641, a due process than under protection the under United the States In State v. Drew, 2007 WI App 213, ¶¶2, 17, 305 740 N.W.2d 404, the 23 court of appeals held that 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 identifications involvement. of control a spontaneous by defendant or lacking a victim accidental police 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 process under the reach of Wisconsin its actual Constitution holding: that provides protection in one identification procedure, the showup. withdrew Dubose no is sufficient language therefore to from not undermine a Ehlen, sea the Disch, change Walstad, or rationale even a behind or due greater Dubose Pankow. development Ehlen, Disch, Walstad, Pankow, and Greenwold II. ¶51 Luedtke questions the precedential value of Ehlen and Disch because they were decided before Dubose. involve evidence destruction. The Dubose did not Wisconsin Constitution provides identical protections to the United States Constitution in this context. distinguishable Luedtke also argues that Ehlen and Disch are 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 distinction is not persuasive. his blood sample. That 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 blood believe that his 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 Laboratory destroyed his blood sample. test before the 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. that discovery preservation granted of the Luedtke and Weissinger's argument them blood longstanding precedent. a sample post-charge is in right conflict to the with our 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. ¶53 Because, under our 2013AP1737-CR & 2013AP218-CR precedent, the Wisconsin Constitution provides no greater due process protections than the United States Constitution regarding evidence preservation and destruction, Youngblood process we test. rights now proceed Again, to the under Youngblood the regarding application destruction the defendant's a of due 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. blood tested cocaine and positive its for metabolite The fact that Luedtke's restricted controlled benzoylecgonine, his blood was apparently not exculpatory. substances, demonstrates that 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 exculpatory blood sample was apparently Laboratory destroyed it. the restricted well. at the time the Her sample, which tested positive for controlled substance THC, was inculpatory as 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. 26 Weissinger argues the State No. acted in charged. bad faith by destroying 2013AP1737-CR & 2013AP218-CR her sample before she was 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 exculpatory evidence." a conscious effort to suppress 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." at 489. blood See Trombetta, 467 U.S. The Laboratory destroyed both Luedtke and Weissinger's samples according to routine procedures. Intentional destruction, without more, does not establish bad faith. ¶57 Weissinger's reliance on State v. Hahn, Wis. 2d 351, 392 N.W.2d 464 (Ct. App. 1986), is misplaced. 132 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 trials. Finally, both Luedtke and Weissinger received fair 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 contents are unknown and, very often, disputed." whose 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." 119 Wis. 2d at safeguards whether [] or 456. "[A] protect not at a a whole defendant's particular panoply right time a of to a sample Ehlen, due process fair of trial, blood is retestable." Disch, 119 Wis. 2d at 470. This panoply includes "[t]he to and right cross-examine witnesses 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." ¶59 We agree with Ehlen, 119 Wis. 2d at 452. the State Weissinger received fair trials. 28 that both Luedtke and No. ¶60 Luedtke cross-examined 2013AP1737-CR & 2013AP218-CR 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 records blood documents request. sample, methodology he that from Although was the Luedtke able the Laboratory to Laboratory was unable analyze used through to the an open to retest the raw data and 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. ¶62 While it is true that 2013AP1737-CR & 2013AP218-CR the Laboratory destroyed Weissinger's sample before the State filed charges, it was under no obligation internal six to preserve month Laboratory upheld results. The requested the retention its test duty policy in results otherwise, the sample any informed its the Weissinger her the that, her test unless destroy would sample six months after its receipt. than Further, required. mailing Laboratory longer she blood 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. requested independent samples. Ehlen, 119 Wis. 2d at 453-54. Weissinger, sample. was tests charged after Weissinger and Ehlen both after the the State destroyed their In fact, Ehlen, like State destroyed his blood 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 assistance of counsel. counsel, deficient Luedtke and must that the was Luedtke denied the effective To demonstrate ineffective assistance of show that deficient counsel's performance performance prejudiced Strickland v. Washington, 466 U.S. 668, 687 (1984). 30 was him. Because we No. have rejected ineffective Maloney, Luedtke's assistance 2005 WI of 74, arguments, counsel ¶37, must 281 2013AP1737-CR & 2013AP218-CR Luedtke's fail. Wis. 2d 595, claim See 698 State of v. 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 is a strict liability offense and is if it constitutional. ¶65 "An offense liability offense 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. 31 "To convict a defendant of a 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." 52, ¶11, 235 liability Wis. 2d 306, criminal Wis. 2d 436, ¶8. 611 statutes In State v. Weidner, 2000 WI N.W.2d 684. are not determining "However, unknown." whether a strict Luedtke, statute 355 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 controlled substance in his blood. prohibited operating a motor vehicle he has a restricted In 2003, the legislature 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 also The second factor, the language of related statutes, 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 blood.17 motor vehicle with any alcohol in the driver's 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. has not drafted a scienter Because the legislature 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 legislature of the statute indicates that the 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] controlled substance. sufficient. has used 'under the influence' Evidence of a of that restricted detectable amount is It is often difficult to prove that a person who a restricted controlled influence' of that substance." substance Id. was 'under the 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. prove knowledge would undoubtedly 35 Requiring the State to make prosecutions more No. difficult. and not 2013AP1737-CR & 2013AP218-CR By removing the "under the influence" requirement providing legislature was "unknowing attempting ingestion" to as regulate a defense, drugged the 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 substance and thus escape liability. restricted controlled For example, a defendant could claim that he accidentally inhaled marijuana smoke, or ate a piece of candy laced with cocaine. indicates easier. that Id. the legislature The legislative history intended to make prosecutions Requiring proof of knowledge or intent is contrary to the purpose of practical enforcement. ¶71 harm, The fifth factor, the protection of the public from further legislature weighs enacted in the favor statute of strict because liability. drivers who The have restricted controlled substances in their blood are a threat to 36 No. public safety.19 2013AP1737-CR & 2013AP218-CR 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." § 346.63(1)(am) § 346.65(2)(am)1. is a Id. A civil first-offense forfeiture. violation Wis. of Stat. 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." Jadowski, 272 Wis. 2d 418, ¶¶27-29. ultimately third neutral offense because, are However, this factor is though any the first felonies, See convictions offense after is a the 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 statutes should rule be of lenity interpreted states in "that favor of ambiguous the penal 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. the statute is unambiguous and imposes strict liability. 38 Here The 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. and "The Due Process Clauses of the United States Wisconsin procedural Constitutions due process protect rights." both State substantive ex rel. and 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, omitted). 'certain 848 "Substantive arbitrary, (citation due from (citation process wrongful omitted). government N.W.2d 861 provides government "Substantive exercising the service of protection ¶57 forbids any a reasonable justification in objective.'" State v. Radke, 2003 WI 7, ¶12, 259 Wis. 2d 13, 657 N.W.2d 66 (citation omitted). legitimate from Id., process without a quotations actions.'" due 'power and governmental 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 Cole, However, we presume that statutes are constitutional. 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, resolve that doubt in favor of constitutionality." Aicher v. Wis. Patients Comp. Wis. 2d 99, 613 N.W.2d 849). Fund, 2000 WI we must Id. (quoting 98, ¶18, 237 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. 2010 WI 17, ¶15, We 323 apply Wis. 2d 321, 780 State v. Wood, N.W.2d 63 (citation omitted). ¶76 rational basis scrutiny to this statute because the statute does not implicate a fundamental right or suspect class. Wis. 2d 377, Rational See 780 v. N.W.2d 90; basis scrutiny rationally related interest. Smith, substantive State due to 323 Smith, Smet, is 288 a Wis. 2d 377, WI if the legitimate ¶12. challenge, we 16, ¶12, Wis. 2d 525, satisfied achieving process 2010 When examine 323 ¶¶21-26. statute is governmental faced with "whether a 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. that "[i]n Id., ¶17. addressing the We agree with the court of appeals 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 Luedtke, 355 Wis. 2d 436, ¶17 (citation omitted). and effect.'" 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. Wis. 2d 525, ¶17. The legislature could Smet, 288 rationally conclude that a strict liability, zero-tolerance approach is the best way to combat drugged driving. prohibiting operation Ultimately, we are "satisfied that of a motor vehicle while having a detectable amount of a restricted controlled substance in one's blood proof of scienter] rational relationship to the statute, and Id., [without ¶20. that the Wisconsin a reasonable purpose or is fundamentally statute Stat. bears not § 346.63(1)(am) objective presents of and the unfair." 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. ¶79 First, based on precedent, 2013AP1737-CR & 2013AP218-CR we hold that, in the context of evidence preservation and destruction, the Wisconsin Constitution under Article does 1, not provide Section 8, greater Clause 1 due process than the protection United States Constitution under either the Fifth or Fourteenth Amendments. As a result, prevail, Youngblood Luedtke and controls. Weissinger Accordingly, must show in that order the to 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. ¶81 2013AP1737-CR & 2013AP218-CR.ssa 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 defendants' blood samples. routine practice, destroyed the 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 bound, The second approach is to assert that the court is under the doctrine of stare decisis, by its prior I take a third approach to the present cases. I do decisions adopting Youngblood. ¶86 not rely on Constitution. the due process clause of the Wisconsin 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. such a jury instruction is not given, the If hereafter 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 constitution. an analogous provision in the federal 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 interpretation of the Wisconsin Constitution. regarding 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 jurisprudence, court forfeit it from cannot its power federal be conclusive, to interpret constitution to the federal judiciary. this state solemn shaped our responsibility constitution, to constitutional interpret lest this its own The people of and it. it is our Federal jurisprudence is persuasive and helpful, but we must 2 No. save independent principles judgment and Constitution."1 2013AP1737-CR & 2013AP218-CR.ssa for policies considering under the competing Wisconsin (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 States of federalism Constitution envisaged tolerates such by the divergence United where the result is greater protection of individual rights under state law than under federal law. . . ." (Quoted source omitted.) ¶89 In Wisconsin keeping with Constitution and my oath the of office to Constitution of support the 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, precedent. the See majority State v. opinion Greenwold relies on Wisconsin (Greenwold II), 189 Wis. 2d 59, 68-69, 525 N.W.2d 294 (Ct. App. 1994). ¶93 Stare decisis, "let essential bedrock principle overrule precedent requires the in our special decision system stand," of is justice. justification. "A an To 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 an Judge Brown wrote in concurrence: illusion. . . . The bad faith Youngblood "sets up 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 of 1,500 published cases citing The fact that only 7 out 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. ¶98 2013AP1737-CR & 2013AP218-CR.ssa 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, instructions with frequency. this court relies on curative 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. of evidence to deter the State 2013AP1737-CR & 2013AP218-CR.ssa 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 a failing score of the Wisconsin State and the limitations on the defendant in Judge Reilly's dissent in Weissinger, 355 8 in crime laboratories, Laboratory of Hygiene, cross-examination, see Wis. 2d 546, ¶¶44-45. 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. 1 2013AP1737-CR & 2013AP218-CR.ssa