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Expert Witness Qualifications; Admissibility – Field Sobriety Tests; WI (Drugs) – Sufficiency of Evidence

City of Mequon v. James E. Haynor, 2010AP466-FT, District 2, 9/8/10

court of appeals decision (1-judge, not for publication); for Haynor: Peter L. Ramirez; BiC; Resp.; Reply

Expert Witness Qualifications – Lab Chemist: Physiological Effects of Drugs

The trial court didn’t erroneously exercise discretion in qualifying as an expert, the supervisor of forensic toxicology at the Wisconsin  State Laboratory of Hygiene on the matter of how certain drugs interact and impair judgment, ¶¶18-22.

Admissibility – Field Sobriety Tests: HGN, VGN, Drug Recognition Protocol

Despite express skepticism about reliability of horizontal and vertical gaze nystagmus testing, and of the Drug Recognition Protocol, the court upholds admissibility,¶¶21-27.

First and foremost: the court not only impressively sketches the reasons for doubting these specific modalities, but goes a step farther to express displeasure that Wisconsin employs a non-Daubert regime. The court’s discussion won’t be summarized in any detail here; it deserves your own reading. Caselaw, with links, relied on by the court: City of West Bend v. Wilkens, 2005 WI App 36, 278 Wis. 2d 643, 693 N.W.2d 324; United States v. Horn, 185 F. Supp. 2d 530 (D. Md. 2002); State v. Klawitter, 518 N.W.2d 577 (Minn. 1994).

Several points ought be made, though. The court virtually invites re-litigation of the Drug Recognition Protocol, ¶25 (“Without the benefit of a record contradicting the comprehensive record developed in Minnesota, we see no reason to reject the Minnesota Supreme Court’s grudging acceptance of the Drug Recognition Protocol.”). Someone should take up the invite. Relatedly, the court’s displeasure with Wisconsin’s refusal to adopt a Daubert-like gatekeeping role is explicit, ¶27 n. 9 (“The problem with the relevancy test is that it does not require the reliability of the underlying scientific evidence be established. … A fact finder cannot search for truth if it is overwhelmed with ‘junk science.’ In the search for the truth, especially in the criminal context with its constitutional implications and liberty interests, it is not too much to require that expert testimony be accurate, valid and reliable.”). This is, as the court acknowledges with great regret, something the supreme court alone is empowered to address. Whether that court would abandon its now long-standing commitment to “wide-open” relevancy is something else. And even if there is no such chance, keep in mind the need to make a factual record on the unreliability of the junk science at hand (outside, at least, of the context of Chapter 980, which for some reason seems to be immune to the usual considerations).

Last, an entirely unrelated point: the court’s recognition that the Protocol might well have been skewed by “confirmation bias,” ¶24 n. 7. The court undertook this discussion on its own initiative — what was that word? — impressively. If nothing else, take it as a prod to put on your own expert in the area of confirmation bias (and let the trial court say that that isn’t relevant). As for confirmation bias, it is, in the court’s felicitous shorthand, “a form of tunnel vision.” Or, as one commentator recently put it, “Brilliant People Happen to Agree with Me.”

OWI (Drugs) – Sufficiency of Evidence

Evidence of OWI was sufficient to sustain conviction where driver of one-car accident had taken several (prescribed) anti-depressants, failed field sobriety tests, and appeared to an officer at the scene to be unable to focus or coherently respond to questions, ¶¶28-30.

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