                                                              2015 WI 42

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

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


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

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

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


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


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




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

STATE OF WISCONSIN                           :             IN SUPREME COURT

State of Wisconsin,

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




State of Wisconsin,

            Plaintiff-Respondent,

      v.

Jessica M. Weissinger,

            Defendant-Appellant-Petitioner.




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


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



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

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


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

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

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

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




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



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

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

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

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



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



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

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

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



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



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

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


      7
          The Honorable Sandy W. Williams, presiding.



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



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

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



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



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



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

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

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



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

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



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


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


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

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


       12
            A nanogram is one billionth of a gram.



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



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

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

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



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

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

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



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

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



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

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


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



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

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

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



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

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

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



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

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



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

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



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

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

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


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


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

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


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



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

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



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

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


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



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

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


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



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



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

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



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



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

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



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

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



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

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

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

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

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


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



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

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



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

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

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


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



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

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



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

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



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

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



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

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


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



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



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

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

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



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



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

However, the Legislative Council Memo goes on to read:

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


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



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

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




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



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

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

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



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



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

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


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



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

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



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

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



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

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




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



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



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

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




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




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

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

(1988),       interpreting       the     federal          constitutional        due     process

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

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


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

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

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

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


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

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

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

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


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


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


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

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

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

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

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


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


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

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

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




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


                                       5
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     ¶98    I share these judges' unease with the federal standard
set forth in Youngblood (and adopted by Wisconsin case law).7
     ¶99    The Youngblood and Greenwold II decisions do not give
meaningful protection to a defendant.          "Ironically, the rule of
law established by [Youngblood] was founded upon the conviction
of an innocent man."8
     ¶100 There is an emerging consensus among courts that have
considered the issue that the bad faith standard does not go far
enough to protect adequately the rights of a person charged with

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

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

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


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

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

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

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


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


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

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

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

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




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


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                                              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).


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