State v. Kandutsch
2011 WI 78
| Wis. | 2011Background
- Kandutsch was convicted of operating a motor vehicle under the influence of an intoxicant, fifth and subsequent offense, based entirely on circumstantial evidence from an electronic monitoring device (EMD) report.
- The State relied on Kandutsch's EMD data showing he was out of range at 10:03 p.m. (22:03) and argued this placed him driving while intoxicated between his mother’s Rib Mountain home and his wife’s Wausau home, about a 15-minute drive apart.
- Kandutsch admitted driving but argued the driving occurred before he began drinking; he challenged the EMD’s accuracy and admissibility.
- At trial, DOC agents Klarkowski and Williams testified about the EMD system, its setup, operation, and reliability; the circuit court admitted the EMD report over objections.
- The court of appeals affirmed, holding no expert testimony was required for this readable, automatic process and that the report was not hearsay; the supreme court granted review.
- The supreme court held that expert testimony was not required to foundation the EMD report and that the computer-generated report was not hearsay, being an automated process; the report was properly authenticated by the DOC agents.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether expert testimony was required to lay the foundation for the EMD report | Kandutsch argued the EMD’s accuracy required expert testimony | State contends ordinary understanding suffices | Expert testimony not required |
| Whether the EMD report is hearsay and/or admissible under the records exception | Kandutsch contends the report is hearsay and not authenticated | State argues it is non-hearsay as an automated process and properly authenticated | Report not hearsay and properly authenticated; records exception not necessary to reach result |
Key Cases Cited
- State v. Hanson, 85 Wis.2d 233 (Wis. 1978) (judge may take judicial notice of underlying scientific principles; moving radar reliability not a per se presumption of accuracy)
- State v. Doerr, 229 Wis.2d 616 (Ct. App. 1999) (PBT admissibility; device may require expert foundation for reliability)
- State v. Zivcic, 229 Wis.2d 119 (Ct. App. 1999) (printout from Intoxilyzer treated as non-declarant-generated; not hearsay)
- Weiss v. United Fire & Cas. Co., 197 Wis.2d 365 (Wis. 1995) (lay comprehension can render expert testimony unnecessary in some contexts)
- Racine Cnty. v. Oracular Milwaukee, Inc., 2010 WI 25 (Wis. 2010) (extreme exercise of discretion in admitting/excluding evidence; standard of review)