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Arrest – Probable Cause

State v. Matthew Owen Hoff, Jr., 2011AP2096-CR, District 3, 6/26/12

court of appeals decision (1-judge, ineligible for publication); case activity

¶19      Here, before arresting Hoff, Gostovich observed him sleeping behind the wheel of a running car that was parked horizontally against the vertical parking stalls.  Hoff did not awake to Gostovich’s shouting or knocking.  When he finally awoke, he was disorientated and confused, and that disorientation “did not dissipate.”  Hoff’s speech was slowed, slurred, and deliberate, and his eyes were watery and bloodshot.  When Hoff exited the vehicle to perform field sobriety tests, Gostovich observed a “gem bag” containing white crystalline powder residue, and Gostovich knew that gem bags are commonly used to carry drugs.  Gostovich also found a Cymbalta pill container on Hoff’s person.  Although Hoff did not show any signs of impairment on the horizontal gaze nystamus test or the nonconvergence test, Hoff had difficulties with the walk-and-turn test and the one-leg stand.  After the preliminary breath test came back with a “zero” result, Gostovich arrested Hoff for operating with a controlled substance.  We conclude that, based on the totality of the circumstances, Gostovich had probable cause to believe Hoff was operating his vehicle under the influence of a controlled substance.  See id.  He therefore lawfully arrested Hoff.

Confrontation – Lab-Test Supervisor 

Testimony from the State Lab supervisor, rather than the chemists who actually ran the tests, as to the nature of the substance that was tested did not violate Hoff’s right to confrontation. Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), distinguished; State v. Williams, 2002 WI 58, 253 Wis. 2d 99, 644 N.W.2d 919, controlling:

… ¶21      … “The critical point … is the distinction between an expert who forms an opinion based in part on the work of others and an expert who merely summarizes the work of others.”  Id., ¶19.  The court emphasized that “although [the unit leader] based part of her opinion on facts and data gathered by someone else, she was not merely a conduit for another expert’s opinion.”  Id., ¶25.

¶22      Applying the standard set forth in Williams, Liddicoat’s testimony did not violate Hoff’s confrontation right.  Liddicoat has considerable training and experience and developed the laboratory’s methods and procedures.  She supervises the laboratory’s chemists, assesses their competence, and, in this case, served as the original peer reviewer for the methamphetamine and amphetamine test results. Finally, after reviewing the laboratory records, Liddicoat offered an independent opinion about the reported test results.

Neither Melendez-Diaz nor Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011) substantially impacts Williams:

¶27      Because neither Melendez-Diaz nor Bullcoming involve a highly qualified expert who offers an independent opinion as to the laboratory results, we conclude these cases do not undermine Williams.  Moreover, unlike Melendez-Diaz or Bullcoming, the laboratory report in this case was not separately admitted into evidence[5] and the State did not present a surrogate analyst who merely parroted the testing analysts’ results.  Instead, pursuant to Williams, the State presented Liddicoat, who, after reviewing the laboratory records, offered an independent opinion about the results.  We conclude Liddicoat’s testimony was proper and Hoff’s confrontation right was not violated.  See Williams, 253 Wis. 2d 99, ¶¶2, 20.

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