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Toxicologist could give opinion about impairment

State v. Lory F. Kerk, 2015AP2608-CR, District 3, 9/13/16 (one-judge decision; ineligible for publication); case activity (including briefs)

The circuit court didn’t err in allowing the state to elicit testimony from its expert toxicologist that Kerk was impaired by the amount of alcohol and prescription drugs found in her blood.

Kerk’s BAC was .063 and there was Prozac and hydrocodone in her blood, too. (¶¶3-4). The expert (who was director of the state hygiene lab’s forensic toxicology unit) testified that the results of Kerk’s field sobriety tests were “consistent” both with someone under the influence of alcohol and hydrocodone and with being “less able to exercise the clear judgment and steady hand needed to safely operate a motor vehicle.” (¶6).

The court of appeals rejects Kerk’s claim that this testimony didn’t pass the Daubert standard, § 907.02(1), because the the expert wasn’t qualified to testify about impairment caused by alcohol and prescription drugs.

¶10     We conclude that the circuit court properly exercised its discretion when it determined that Miles was qualified to testify regarding impairment caused by alcohol and prescription drugs. The circuit court found that Miles: (1) authored published articles relating to driving and prescription drugs; (2) participated in publications relating to alcohol, prescription drugs, and impairment; and (3) participated in training sessions and conferences regarding impaired drivers. These findings are not clearly erroneous, and we are therefore bound by them. See Wis. Stat. § 805.17(2). Based on these factual findings, Miles was qualified to testify regarding impairment in a person caused by alcohol and prescription drugs.

Kerk relies on State v. Bailey, 54 Wis. 2d 679, 684-85, 196 N.W.2d 664 (1972), and State v. Donner, 192 Wis. 2d 305, 315, 531 N.W.2d 369 (Ct. App. 1995), but those cases are different. The expert in Bailey was a chemist, with no qualifications regarding how alcohol would impair a person. (¶11). The expert in Donner was found qualified to testify about the impairment caused by alcohol based on her participation in “dosing” studies (where people drink and scientists study the effects of the alcohol); while the expert in Kerk’s case also participated in dosing studies, they only related to alcohol, not alcohol and prescription drugs. That doesn’t matter here, says the court, because Donner doesn’t make participation in dosing studies determinative of expertise, and the expert here had other relevant qualifications. (¶12).

Finally, Kerk’s argument that the expert’s testimony wasn’t based on sufficient facts and data is rejected because it’s not supported by citation to authority or adequately developed. (¶13).

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