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OWI: admissibility of opinion based on FST

State v. James W. Warren, 2012AP1727-CR, District 2, 1/16/13

Court of appeals decision (1 judge, not eligible for publication); case activity

OWI — admissibility of opinion based on field sobriety tests

Police officer testimony that, based on his training and experience, “the field tests are a reliable indicator of whether someone is .08 or higher” and that the HGN test alone is sufficient to detect a BAC over .08, wasn’t an improper expert opinion.  City of West Bend v. Wilkens, 2005 WI App 36, ¶21, 278 Wis. 2d 643, 693 N.W.2d 324, established that an officer is not giving scientific or expert testimony when citing field sobriety tests and other observations as the basis for the subjective opinion that a driver’s alcohol level was impermissibly high:

¶8        … [A]s we said in Wilkens, the tests are “observational tools, not litmus tests that scientifically correlate certain types or numbers of ‘clues’ to various blood alcohol concentrations.”  Id. at ¶17.  Allowing a jury to consider an officer’s subjective opinion that the defendant was impaired, based on his observations of the defendant (including observations made during field sobriety tests) that the officer considered to be reliable indicators, is not error.  See id. ¶13 ….

In addition, “not only was the officer’s testimony far from being scientific opinion, there was no suggestion made to the jury that they were scientific, expert conclusions.  Moreover, the jury was properly instructed regarding its duty and competence to weigh all of the evidence and to evaluate the witnesses’ credibility, a duty it seems to have taken seriously when it found Warren guilty on one charge but not another.” (¶9).

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