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Evidence – Blood Alcohol Concentration Chart, Foundation; Expert Witness – Intoximeter

State v. William M. Hart, 2011AP582, District 1, 8/30/11

court of appeals decision (1-judge, not for publication); for Hart: Craig S. Powell; case activity

Although a (DOT-prepared) blood alcohol chart is admissible without expert testimony, State v. Hinz, 121 Wis. 2d 282, 284–85, 360 N.W.2d 56 (Ct. App. 1984), nonethless, “the proponent must lay the proper foundation for the evidence, and the burden does not shift to the opponent unless the proponent does so,” ¶8. The chart itself provides the variables that must be adduced, including the person’s weight, number and type of drinks, and time of first drink.

¶8      …  Although Hart complains that the City sandbagged him by changing legal theories, and he claims that if the City had asserted a lack-of-foundation contention at trial, he could have plugged the foundational hole, the chart is clear on its face as to what has to be shown before the chart can be used to “estimate” the blood-alcohol level based on the number of drinks a person has over a specified time; Hart knew or should have known what was needed before the chart could be relevant.  See Wis. Stat. Rules 904.01 (“‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”), 904.02 (“Evidence which is not relevant is not admissible.”).  Further, Hart makes no offer of proof on this appeal what proper foundation he would have laid.  Cf. State v. Flynn, 190 Wis. 2d 31, 48, 527 N.W.2d 343, 349–350 (Ct. App. 1994) (A defendant who alleges that his lawyer was ineffective because the lawyer was deficient in his or her representation must show what the lawyer should have done and how it would have accomplished the result the defendant now seeks.).  Stated another way, the chart would not have “any tendency” to estimate Hart’s blood-alcohol level that night unless the jury had all of the information the chart required:  weight, type of drink or drinks, number of drinks consumed, and when Hart had the first one.  Thus, we affirm the trial court’s exclusion of the chart.

Exclusion of a defense expert on the potential distortion from Hart’s decaying teeth on his breath test result is sustained:

¶10      Hart’s proposed expert witness has an impressive résumé as a chemist, and, as her résumé notes, she works as a “consultant in forensic testing for alcohol.”  (Uppercasing omitted.).  Before that, she worked in the “Chemical Test Section” of the Wisconsin State Patrol, and has held similar jobs. (Uppercasing in her résumé.)  She also has training and certifications in the alcohol-testing field.  As the trial court pointed out, however, she has no education, training, or experience in assessing periodontal disease and whether alcohol could or would be retained in the mouth as a result.  Although Wisconsin had, before the new amendments to Wis. Stat. Rule 907.02, a wide-open gate for the receipt of expert testimony, State v. Jones, 2010 WI App 133, ¶22, 329 Wis. 2d 498, 510–511, 791 N.W.2d 390, 396–397, any witness proffered as an expert still had to have sufficient knowledge in the specific subject of his or her testimony, Green v. Smith & Nephew AHP, Inc., 2000 WI App 192, ¶¶21–23, 238 Wis. 2d 477, 497–500, 617 N.W.2d 881, 890–891, aff’d, 2001 WI 109, ¶¶92–95, 245 Wis. 2d 772, 834–836, 629 N.W.2d 727, 756–757.  The trial court correctly observed that Hart’s proffered witness did not have the requisite expertise; it did not erroneously exercise its discretion in excluding her proposed testimony.[2]

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