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Statements driver made before arrest admissible; so was retrograde extrapolation testimony

State v. Christopher J. Durski, 2018AP1750-CR, District 2, 8/21/19 (one-judge decision; ineligible for publication); case activity (including briefs)

Durski was arrested at a motel, where he had decamped after a family dispute. In investigating the family dispute police learned Durski drank alcohol before leaving for the motel, so they tracked him down. Durski wasn’t in custody during the officers’ initial questioning of him at the motel, so his statements were admissible despite the lack of Miranda warnings. So was the state’s retrograde extrapolation evidence.

After an initial denial, Durski told police that he’d had two cans of beer after he arrived at the motel. (¶3). He argues that he was in custody and should’ve been given Miranda warnings while the officers were questioning him about and investigating both the family dispute and his claim he drank at the motel (for which the officers found no corroborating evidence (¶4)). The court is not persuaded.

¶11     ….[W]e agree with the circuit court that Durski was not “in custody” until he was formally placed under arrest. Until that time, he was not told he was under arrest and there is no indication his freedom of movement was restrained to a degree associated with a formal arrest. Based upon the totality of the circumstances, it would have been obvious to any reasonable person in Durski’s position that he was being temporarily detained for investigative purposes, and all indications were that he likely would not have been arrested for OWI if his story about consuming beer after arriving at the motel could have been corroborated through the investigation. The investigating officer’s questioning of Durski lasted only a few minutes and took place in the motel, as opposed to the back of a squad car or a police department interrogation room, and he was not transported to another location for questioning. Durski was not handcuffed, no weapons were drawn on him, and no other show of force was utilized. The court found the tone of the questioning was “conversational,” and “not accusatory.” While there were three officers present during the performance of the FSTs, under the totality of the circumstances, this fact does not raise the detention to the level of “custody.”

Durski’s challenge to the retrograde extrapolation evidence appears to be that the expert didn’t have enough facts to do the extrapolation, perhaps because of Durski’s trial testimony that he drank at the motel. True, the expert’s opinion assumed Durksi did not drink at the motel; but that assumption is supported by the state’s version of the facts. If the jury rejected the state’s version and believed Durski’s testimony instead, it would’ve discounted the expert’s opinion. Apparently the jury disbelieved Durski. (And Durski’s lawyer didn’t ask the expert how the extrapolation would be affected if Durski’s testimony were credited.) That, however, doesn’t make the expert’s testimony inadmissible. (¶¶13-21).

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