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CAD report not inadmissible hearsay; retrograde extrapolation passes Daubert

City of West Bend v. Rebecca L. Smith, 2016AP2170, 10/18/17, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)

Smith appeals her jury-trial conviction for OWI. She argues that the court erroneously admitted, over hearsay objection, the computer aided dispatch activity report indicating the times that the police took various actions. She also seeks reversal based on the admission of expert testimony opining as to her BAC by the technique of retrograde extrapolation.

As to the CAD report, the court of appeals concludes that any “time stamp” data it contains is not hearsay at all, being computer-rather than a human-generated. (¶9); see State v. Kandutsch, 2011 WI 78, ¶¶55-64, 336 Wis. 2d 478, 799 N.W.2d 865. The court goes on to hold that even if the overall report is hearsay, it was properly admitted under the business record exception in Wis. Stat. § 908.03(6). It rejects Smith’s argument that the CAD report was “prepared in anticipation of litigation” and thus not within the exception, see State v. Williams, 2002 WI 58, ¶49, 253 Wis. 2d 99, 644 N.W.2d 919, saying that “the CAD system is utilized in all situations where officers are dispatched to a scene, regardless of any civil or criminal prosecution.” (¶11).

Smith didn’t object to the retrograde extrapolation testimony, and so asks for reversal as plain error or in the interest of justice. But the court of appeals has already approved such testimony under DaubertState v. Giese, 2014 WI App 92, ¶¶24-25, 356 Wis. 2d 796, 854 N.W.2d 687. (¶13).

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