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Evidence sufficient to show driver’s intoxication

Waukesha County v. Kimberly A. Ridl, 2016AP554, 2/15/17, District 2 (1-judge decision; ineligible for publication); case activity (including briefs)

The court of appeals rejects an OWI defendant’s claim that the circuit court could did not have sufficient evidence of her impairment because the judge (it was a bench trial) was unqualified to conclude that her “medication caused her to be affected by alcohol in an atypical way.”

Ridl testified at trial that she had been taking several medications (apparently in addition to the two drinks she told the officer she had). The court of appeals is unconvinced that the court’s statement about the interaction between the drugs and the alcohol rendered the evidence insufficient:

Moonen smelled intoxicants coming from Ridl’s SUV, and Ridl admitted to drinking. Ridl also exhibited an unsteady gait, almost fell, spoke with slurred speech, and had trouble putting coherent sentences together. Moonen testified that Ridl’s eyes lacked smooth pursuit and had distinct and sustained nystagmus at maximum deviation. Although not specifically mentioned by the circuit court, Ridl told Moonen that she routinely took care of cops, possibly indicating a consciousness of intoxication and a desire for special treatment.

Contrary to Ridl’s insistence, expert testimony was not required for the court to conclude that Ridl was intoxicated. Although a circuit court may order expert testimony for “unusually complex or esoteric issues,” requiring—as opposed to merely permitting—expert testimony “represents an extraordinary step.” Weiss v. United Fire & Cas. Co., 197 Wis. 2d 365, 379, 541 N.W.2d 753 (1995). In order for expert testimony to be required, the circuit court must determine that the issue is not within the realm of ordinary experience. Id. Whether a person is intoxicated—based on objective indicators like those present here—is a matter well within ordinary experience. See State v. Powers, 2004 WI App 143, ¶13, 275 Wis. 2d 456, 685 N.W.2d 869 (explaining that a layperson may testify that he or she believed a person was intoxicated). Expert testimony was not required.

Furthermore, we think Ridl has mischaracterized the circuit court’s decision. Although the court did speculate that Ridl might have been exhibiting an abnormal response to the alcohol, this statement was hardly the basis for the court’s ruling. The court’s remarks were couched in hypothetical terms. The court explained it could “imagine how maybe … taking the medications that she was taking … alcohol impacted her in a way that maybe she wasn’t expecting.” This appears to be the circuit court offering a possible (perhaps more charitable) explanation for Ridl’s visibly intoxicated state. It does not, as Ridl suggests, form the sole basis for the court’s conclusion that Ridl was in fact intoxicated. The court made clear that all of the factors it identified—her erratic behavior, visible signs of intoxication, slurred speech, and the results from the HGN test—“support a level of intoxication that would lead to a violation.” The evidence was more than sufficient to support this conclusion.

(¶¶9-11).

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