UNDATED (WSAU) The state Justice Department has asked a federal judge to reconsider his dismissal of a case that could change the way drunk driving is prosecuted.
In September Milwaukee Federal Magistrate Aaron Goodstein dropped an O-W-I conviction against retired Mequon businessman Richard Fischer. But the state said Goodstein ignored evidence which showed that Fischer was most likely to be guilty. Goodstein said an Ozaukee County judge refused to let a jury hear testimony that could have shown Fischer was not over-the-limit in a roadside breath test when he was stopped in 2005 – even though later tests with more sophisticated equipment showed him to be above .08.
The defense argued that Fischer’s blood alcohol level kept rising in the hours after his arrest. But the State Supreme Court upheld Fischer’s conviction. And the federal magistrate scolded the justices for saying that the state’s interest in getting drunk drivers off the road trumped a defendant’s right to present certain evidence. The state argued that it didn’t need a blood alcohol level to convict Fischer, since he was swerving and failed several roadside sobriety tests. And the state said Goodstein did not consider other judicial opinions which said roadside blood alcohol tests were not fully reliable.