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COURT OF APPEALS
DECISION
DATED AND RELEASED
NOTICE
DECEMBER 17, 1996
A party may file with the Supreme Court                                                This opinion is subject to further editing.
a petition to review an adverse decision                                               If  published,  the  official  version  will
by the Court of Appeals.  See § 808.10 and                                             appear  in  the  bound  volume  of  the
RULE 809.62(1), STATS.                                                                 Official Reports.
No. 96-2255-CR
STATE OF WISCONSIN                                                                     IN COURT OF APPEALS
                                                                                       DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
KATHRYN L. JOHNSON,
Defendant-Appellant.
APPEAL from a judgment of the circuit court for Polk County:
JAMES A. WENDLAND, Judge.  Affirmed.
CANE, P.J.    Kathryn Johnson appeals her conviction for operating
a motor vehicle while under the influence of an intoxicant, second violation.
She contends that because there was a lack of foundation as to the Intoxilyzer
machine’s accuracy, the trial court erred by admitting its test results to the jury.
The conviction is affirmed.
The State charged Johnson with OWI after police officer Ronald
Bader  stopped  her  car  when  observing  it  weave  across  the  centerline  at
approximately 1:30 a.m. on March 30, 1995.   Initially, Bader followed the car
when observing that it had only one operable headlight.   After Bader stopped
the car, he detected a strong odor of alcohol coming from inside the car when




No.   96-2255-CR
Johnson  rolled  down  the  window.    Johnson  admitted  that  she  had  been
drinking  at  a  party  earlier.    At  the  police  station,  Bader  administered  the
Intoxilyzer test to Johnson who tested a blood alcohol content of .21%.
At a hearing on a motion to suppress the Intoxilyzer test result and
again at trial, Johnson claimed that the test result was not admissible because
the State had failed to show that the machine was functioning accurately on the
day of her arrest.  Essentially, the evidence shows that Marty Morris, a chemical
test coordinator for the chemical test section of the Wisconsin State Patrol, had
certified the Intoxilyzer as accurate on March 14, 1995, and then had to repair
the machine on May 3, 1995, because of a failed diagnostic test.  Johnson reasons
that because the State provided no other evidence as to the operation of the
Intoxilyzer between the date of her arrest on March 30 and the repairs on May 3,
the trial court should have suppressed the Intoxilyzer results.   This court is not
persuaded.
By statute, a law enforcement officer who arrests a person and
issues a citation for driving while under the influence of an intoxicant may
request the driver to provide a breath, blood or urine sample for testing.  Section
343.305(2), STATS.   The results of the tests are admissible into evidence at a trial
on the charge of operating a motor vehicle while under the influence.   Section
343.305 (5)                                                                               (d) reads in pertinent part as follows:
At the trial of any civil or criminal action or proceeding arising
out of the acts committed by a person alleged to have
been  driving  or  operating  a  motor  vehicle  while
under the influence of an intoxicant or a controlled
substance                                                                                 ...  results  of  a  test  administered  in
accordance with this section are admissible on the
issue of whether the person was under the influence
of an intoxicant or a controlled substance.  ... Test
results shall be given the effect required under s.
885.235.
As noted in City of New Berlin v. Wertz, 105 Wis.2d 670, 674-75,
314 N.W.2d 911, 913 (Ct. App. 1981), the legislature placed no conditions on the
admissibility  of  a  breathalyzer  test  result.     Under  Wisconsin  case  law,
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No.   96-2255-CR
breathalyzer tests carry a prima facie presumption of accuracy, and the question
of how accurately the test was performed goes to the weight to be given to the
test, not to its admissibility.  Id. at 674, 314 N.W.2d at 913.
Tests by recognized methods, such as speedometer, breathalyzer
and radar, do not need to be proved for reliability in every case.  State v. Trailer
Serv., Inc., 61 Wis.2d 400, 408, 212 N.W.2d 683, 688 (1973). These methods of
measurement carry a presumption of accuracy; if the validity of basic tests had
to be a matter of evidence in every instance, the administration of law would be
seriously frustrated.   Id. at 408, 212 N.W.2d at 688-89.   Whether the test was
properly conducted or the instruments used were in working order is a matter
for the defense.  Id. at 408, 212 N.W.2d at 688.
Here, Bader testified that the Intoxilyzer machine was functioning
properly at the time he tested Johnson.  The only evidence that the unit was not
working properly is the trouble call to Morris approximately a week before he
repaired it on May  3.    This does not mean the machine was not working
properly on March 30.   That remained a question for the jury to decide, not a
question of its admissibility.
The  trial  court  properly  admitted  the  test  result  and  left  the
question of whether the Intoxilyzer was in proper working order for the jury to
decide.   Therefore, this court concludes that the trial court did not err when it
admitted the results of the Intoxilyzer test.   The results of the Intoxilyzer test
were properly before the jury, and the denial of Johnson’s motion to suppress
was a proper exercise of discretion.
By the Court.—Judgment affirmed.
This opinion will not be published.  RULE 809.23(1)(b)4, STATS.
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