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Controlled Substance – Sufficiency of Evidence, Proof of Substance — Presumptive and Confirmatory Testing

State v. Sheldon C. Stank, 2005 WI App 236
For Stank: Dennis P. Coffey

Issue/Holding: Proof of the controlled substance is sufficient where a “presumptive” test is followed by a “confirmatory” one (State v. Dye, 215 Wis. 2d 281, 572 N.W.2d 524 (Ct. App. 1997), followed), with the PDR being used to establish the presumption:

¶42      Here, the forensic scientist conducted both a presumptive identification and a confirmatory test on a random sample of the suspected Oxycontin. Identification of a pill using the Physician’s Desk Referencequalifies as a presumptive test.  Wisconsin Stat. § 907.02 and State v. Hollingsworth, 160 Wis. 2d 883, 895-96, 467 N.W.2d 555 (Ct. App. 1991), recognize that any specialized knowledge beyond the ken of the average person, including knowledge gained from experience alone, can form the predicate of an expert opinion. Thus, the knowledge need not be “scientific,”see id. (no special technical or academic training necessary), and “scientific certainty” is not necessary. The fact that the witness here was a forensic scientist therefore did not preclude her from forming an expert opinion about the accuracy of the desk reference based on experience. This witness testified that in her eleven years of experience, she had never found her pharmaceutical identification of a tablet inconsistent with the results of scientific tests. Detective Davila gave similar testimony based on her experience on the vice control squad, stating that she had never seen a case in which the pill she identified in the desk reference turned out to be a counterfeit of that drug.

¶43      Moreover, we note that other courts have recognized the Physician’s Desk Reference as a source commonly relied upon by members of the medical profession and pharmaceutical industry. …

¶44      In addition to the presumptive pharmaceutical evaluation by Detective Davila and the forensic scientist, the jury in this case, just as the fact finder in Dye, had a confirmatory follow-up test and other circumstantial evidence of content that it could consider. …


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