879 N.W.2d 786
Wis. Ct. App.2016Background
- Andrew Chitwood crashed his car, suffered facial lacerations, and was evaluated in the ER; officers observed lethargy, slurred speech, and he admitted taking prescription drugs.
- Blood toxicology later showed oxycodone, citalopram, carisoprodol (and meprobamate); no alcohol detected.
- Nathan Peskie, a certified Drug Recognition Evaluator (DRE), conducted a partial DRE in the hospital (could not complete several steps because of injury/medical care) and concluded Chitwood was impaired by a narcotic analgesic and a CNS depressant and incapable of safe driving.
- Defense objected that Peskie’s partial DRE was unreliable and inadmissible under the Daubert standard as codified in Wis. Stat. § 907.02(1); the circuit court admitted Peskie’s opinion and allowed cross-examination on incompleteness.
- The jury convicted Chitwood of OWI by drugs and operating after revocation; Chitwood appealed the admission of Peskie’s testimony.
- The Wisconsin Supreme Court held the DRE protocol is based on specialized knowledge and is reliable; a partial DRE may nevertheless yield sufficiently reliable opinion evidence depending on the facts, so admission was within the court’s discretion and the conviction was affirmed.
Issues
| Issue | Chitwood's Argument | State's Argument | Held |
|---|---|---|---|
| Whether Peskie's DRE opinion is subject to Daubert/Wis. Stat. § 907.02(1) | DRE involves scientific/specialized techniques and thus must meet Daubert reliability before admission | DRE is at least specialized knowledge and therefore governed by § 907.02; but established DRE principles are reliable | Court: DRE testimony is based on specialized knowledge and § 907.02 applies; lower court erred in saying otherwise but result stands |
| Whether a partial/incomplete DRE is admissible (reliability of opinion based on incomplete protocol) | Partial DRE here (many steps omitted) is unreliable; State presented no evidence validating incomplete DRE (error rates, peer review, acceptance) | The DRE protocol as a whole is tested, peer-reviewed, and reliable; incomplete application may affect weight, not admissibility, when enough reliable indicia exist | Court: Partial DRE can be admissible; here Peskie had sufficient observations and corroborating toxicology to support a reliable opinion — admission was not an erroneous exercise of discretion |
Key Cases Cited
- Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (establishes judge as gatekeeper for expert scientific testimony)
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (Daubert gatekeeping applies flexibly to technical and specialized expert testimony)
- State v. Giese, 356 Wis. 2d 796 (discussing codification of Daubert standard in Wisconsin evidence law)
- State v. Daly, 775 N.W.2d 47 (upholding reliability and admissibility of DRE-based testimony)
- Martindale v. Ripp, 246 Wis. 2d 67 (standard for reviewing discretionary evidentiary rulings)
- State v. Morgan, 195 Wis. 2d 388 (appellate principle: correct result may be affirmed even if lower court gave wrong reason)
- State v. Bustamante, 201 Wis. 2d 562 (discusses harmless error principles)