The circuit court erroneously exercised its discretion when it ordered that police could not testify about Schoengarth’s performance on field sobriety tests.
The judge apparently accepted Schoengarth’s argument that exclusion was appropriate because he had agreed to do the tests on the understanding the squad car video would record his performance (and exculpate him), but it turned out it was impossible to see his performance on the video. (¶¶7-11). The court of appeals finds no legal basis for this ruling: “The circuit court expressed concern that Schoengarth would be unfairly ‘forced’ to testify regarding the field sobriety tests in the absence of a video recording that successfully captured the scene. However, the court did not suggest a rationale, consistent with the rules of evidence, to explain why exclusion of officer testimony is an appropriate response on these facts, and no rationale is evident to me.” (¶20).
Moreover, Schoengarth’s “understanding” about the recording of his performance fails as a legal argument because the police tried to video record the field sobriety tests. “Absent any suggestion of a ruse in attempting to video record the field sobriety tests, or after-the-fact doctoring, the officers acted as Schoengarth now says he expected and hoped that they would based on the alleged ‘negotiation.’ Schoengarth fails to develop an argument that inadequate video recording skills or technology render officer testimony about field sobriety tests inappropriate or unfair.” (¶18).
The court of appeals also rejects Schoengarth’s reliance on §§ 910.02 and 904.03. (¶¶15-16). As for his seeming suggestion the police destroyed evidence, there was no finding that happened; in fact, the record shows the parties and circuit court assumed that police attempted in good faith to video record the field sobriety tests, but apparently did not sufficiently consider the need for lighting or used inadequate equipment. (¶17).