State v. Giese
854 N.W.2d 687
Wis. Ct. App.2014Background
- Giese faced OWI and prohibited BAC charges; BAC drawn ~3 hours after the crash, result .181.
- Toxicologist performed retrograde extrapolation to estimate BAC at crash, using assumptions that alcohol was fully absorbed and no post-crash drinking, yielding a minimum extrapolated BAC of .221.
- Circuit court admitted the retrograde extrapolation under Wis. Stat. § 907.02 (Daubert gatekeeping) and found the opinion based on sufficient facts/data and reliable methods; objections targeted the assumptions and their accuracy.
- Giese argued the retrograde extrapolation is unreliable due to a single test and reliance on disputed assumptions, citing Dubowski and general Daubert concerns.
- Wisconsin Supreme Court held the retrograde extrapolation admissible under Daubert in this case, noting general scientific acceptance, the availability of other known facts, and that issues regarding assumptions go to weight, not admissibility; defendant may challenge assumptions at trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Daubert admissibility of retrograde extrapolation | Giese argues method lacks sufficient facts/data and reliable principles | Giese contends single test invalidates reliability | Admissible under Daubert |
| Impact of assumptions on reliability | Assumptions (absorption, no further drinking) render opinion unreliable | Assumptions supported by scenario; cross-examination will test them | Assumptions go to weight, not admissibility |
| Role of Mata/Mata-like distinctions | Mata shows limitations where only limited data exist | Fonte and broader practice support admissibility depending on case facts | Distinguishes Mata; Giese facts support admissibility |
Key Cases Cited
- Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) (Daubert standard for gatekeeping admissibility of expert testimony)
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (Daubert applies to all expert testimony; not just science)
- State v. Fonte, 281 Wis. 2d 654 (2005) (Retrograde extrapolation approved under pre-Daubert standard in Wisconsin)
- State ex rel. Montgomery v. Miller, 321 P.3d 454 (Ariz. Ct. App. 2014) (Retrograde analysis generally reliable in toxicology in some jurisdictions)
- Mata v. State, 46 S.W.3d 902 (Tex. Crim. App. 2001) (Case discussing limitations of retrograde extrapolation in extreme scenarios)