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Trial counsel was not ineffective for failing to present expert testimony that would have supported defendant’s testimony

State v. Deborah A. Nixon, 2013AP822-CR, District 2, 10/16/13; court of appeals decision (1-judge; ineligible for publication); case activity

Nixon was at the home of a friend who called the police because Nixon was being disorderly and wouldn’t leave; Nixon did leave for a while, but when she returned her friend called police again, who came and ended up arresting her for OWI. (¶2). At trial she testified that she drank as many as three beers after driving back to her friend’s house, but before the police arrived and arrested her. (¶3). The state’s blood analyst testified that based on Nixon’s  BAC of 0.089 at the time of the blood test, her BAC at the time of driving two hours earlier was between 0.119 and 0.125. (¶¶2, 4). That extrapolation assumes Nixon drank only before driving. But if Nixon drank three beers after driving as she testified at trial, her BAC would have been between 0.076 and 0.089, which is consistent with the blood test result. (¶5). Defense counsel didn’t elicit this fact from the state’s analyst or present his own expert to provide this information to the jury, and Nixon claims he was ineffective for failing to do so because it would have bolstered the credibility of her version of events. (¶5).

Despite its acknowledgment that “[t]his case revolves around credibility” (¶8), the court of appeals concludes counsel’s omission did not prejudice Nixon. Although an expert might have presented evidence that Nixon’s story was “within the realm of possibility based on her blood test results,” the omitted evidence “would not have tipped the scales of credibility away from the State’s witnesses and in her direction.” (¶8). In particular, the police testified Nixon was expressly asked before her arrest whether she had anything to drink after returning to her friend’s house, and she said “no” and never retreated from that claim over the course of the night. In addition, they saw no evidence of drinking except for one beer can that Nixon’s friend said had been left by Nixon before she drove. (¶4).

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