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Trial court didn’t err in excluding evidence of lab mistakes from years before defendant’s blood sample was tested

Fond du Lac County v. Douglas L. Bethke, 2013AP2297, District 2, 4/30/14 (1-judge; ineligible for publication); case activity

The circuit court did not erroneously exercise its discretion when it excluded evidence of particular crime lab errors that happened years before Bethke’s blood sample was analyzed.

Before Bethke’s OWI trial the County moved to bar evidence that the state lab failed certain proficiency tests in June 2010, some two years before Bethke’s sample was tested, arguing that a corrective action plan was implemented and no problems were found in subsequent audits. Bethke argued the evidence of failed proficiency tests in 2007, 2009, and 2010 should be admitted because it was relevant to the weight that the jury should give to the blood test evidence. (¶7). The circuit court allowed the defense to make, in a “tailored way,” the point that “mistakes do happen, they have happened, and we’re not perfect,” via “general questions” with the expert witness, but precluded questions about the specific reports of particular errors because of the danger of unfair prejudice, confusion of the issues, and undue delay. (¶8). The court of appeals affirms:

14      …. The record provides no basis for finding any error in the exercise of discretion as to whether to allow questions or evidence of specific incidents of failed proficiency tests at the state lab in 2010, 2009, and 2007. The circuit court had an opportunity to examine the error reports and the corrective action reports, heard argument from both sides, and concluded that allowing the evidence or questions about these particular past mistakes (the most recent of which was two and a half years old at the time of Bethke’s testing) posed too great a risk of confusing or unfairly prejudicing the jury. That was a logical conclusion. There was no error in ruling that the years-old lab errors were off limits, and Bethke was free to challenge the reliability of the blood draw via other lines of questioning.

The court also concludes the state proved Bethke’s blood was drawn by a person authorized under § 343.305(5)(b). The arresting officer testified he took Bethke to the place in the hospital for “legal blood draws” and called the number for requesting blood draws, and in response the hospital sent a “laboratory technician” who drew the blood and completed the required paperwork. It is reasonable to infer from these facts that the laboratory technician who performed the test was “a medical technologist,” so there was no need for testimony from the laboratory technician himself to confirm that fact. (¶¶11-13).

Appellate practice pointer: The court says Bethke’s brief doesn’t comply with Rule 809.19(1)(d), which requires a brief to provide citations to the record. “Bethke’s references were to his own appendix, without any indication in the appendix itself nor in his citations as to how the documents copied into his appendix correspond to the way the circuit court numbered the documents in the record on appeal.  … Bethke and other litigants must be aware that it is not an acceptable practice:  the creation of an appendix is also required, see Rule 809.19(2), but ‘appropriate references to the record’ means references that use the same document and page numbers established by the circuit court when it assembles the record on appeal.” (¶3 n.2).


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