State v. Giese

• Decision Date: 27 August 2014
• Docket Number: No. 2013AP2009–CR.,2013AP2009–CR.
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Todd J. GIESE, Defendant–Appellant.
• Court: Wisconsin Court of Appeals

356 Wis.2d 796

854 N.W.2d 687

STATE of Wisconsin, Plaintiff–Respondent

v.Todd J. GIESE, Defendant–Appellant.^†

No. 2013AP2009–CR.

Court of Appeals of Wisconsin.

Submitted on Briefs June 11, 2014.

Opinion Filed Aug. 27, 2014.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Craig S. Powell and Geoffrey R. Misfeldt of Kohler & Hart, S.C., of Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of J.B. Van Hollen, attorney general, and Warren D. Weinstein, assistant attorney general.

Before BROWN, C.J., NEUBAUER, P.J., and GUNDRUM, J.

Opinion

BROWN, C.J.

¶ 1 We granted Todd Giese's petition for leave to appeal a nonfinal order that denied his motion to exclude expert testimony concerning retrograde extrapolation of Giese's blood alcohol concentration. There are two objectives in writing this opinion. First, to explain what the Daubert¹ rule is and what it is not. Second, to decide whether the retrograde extrapolation opinion in this case satisfies Daubert.

¶ 2 Giese argues that the expert opinion is inadmissible under Wis. Stat. § 907.02 (2011–12),² as amended in 2011 to codify the standard from Daubert and its progeny. Giese claims that the opinion fails to satisfy § 907.02 because it is based upon insufficient facts and data and because the expert relied upon “unprovable and improper assumptions” in forming her opinion. In particular, Giese points out that some experts have expressed doubt about the reliability of retrograde extrapolation, particularly when it is based upon a single blood test at a single point in time. We conclude that the expert's opinion about retrograde extrapolation is admissible under § 907.02 in Giese's case because it was the product of reliable principles and methods and based upon sufficient facts and data, which is all that Daubert requires. Giese's objections go to the weight of the expert opinion and the validity of the expert's underlying assumptions. We affirm the circuit court.

Facts

¶ 3 In the early morning hours of July 15, 2012, the Washington county sheriff's department responded to a report of a man lying in the roadway. The responding officer found two people at the scene: Giese and the woman who found him lying in the road. As the officer approached, he noticed that Giese was “very intoxicated,” swaying back and forth and smelling of alcohol.

¶ 4 Giese told the officer that he crashed his vehicle “about three hours earlier,” began to walk home, and fell asleep in the road. He admitted that he had been at a tavern with some friends beforehand but could not recall any details such as the name of the tavern, the names of his friends, or even his own address or phone number.

¶ 5 Another deputy nearby happened to pass the spot where Giese apparently had crashed his car. Several people were near Giese's car, including Giese's wife. Giese's wife at first said that she had been driving the vehicle, but when she learned that Giese was with another deputy in a different location, she admitted that she responded to the scene of the crash after receiving a call.³ The crash scene was about three miles east of where Giese was found lying in the road. Testimony indicated that there were no restaurants or bars along the road between the crash site and the place where Giese was found. Some groceries and personal items were found in Giese's car.

¶ 6 Giese was transported to a medical center. The deputy observed a medical technician draw Giese's blood at approximately 3:30 a.m. The blood sample was sent to the state crime lab for processing, and the lab's analysis showed a blood alcohol concentration of .181.

¶ 7 Giese faced two charges arising out of the incident: (1) operating a motor vehicle while intoxicated (OWI), as a fifth or sixth offense, with an enhancer due to the high level of alcohol,⁴ and (2) operating with a prohibited alcohol concentration of more than .02,⁵ as a fifth or sixth offense, with an enhancer due to the high level of alcohol.⁶

¶ 8 At the State's request, the toxicologist who analyzed Giese's sample later calculated a “back extrapolation” from Giese's blood test result to approximate his blood alcohol level at the time he crashed his car. In extrapolating that blood alcohol level, the toxicologist made certain assumptions: that the alcohol was fully absorbed before the incident and that Giese ingested no additional alcohol afterwards. Based on those assumptions, she calculated a range of possible blood alcohol concentrations for four hours, four hours and fifteen minutes, and four hours and thirty minutes before the blood draw. She concluded that, at the very least, Giese's blood alcohol concentration was .221 at the time of the alleged driving.

¶ 9 Giese sought to exclude the blood test and the testimony about retrograde extrapolation. Giese first noted that because the blood was drawn more than three hours after the time when Giese said the crash happened, the result was not automatically admissible under Wis. Stat. § 885.235 but must be supported with expert testimony establishing its probative value. Giese argued that the probative value of the evidence could not be established because the retrograde extrapolation was based upon assumptions concerning when the driving occurred and when the alcohol was ingested in relation to the alleged driving.

¶ 10 Furthermore, Giese challenged the reliability of the toxicologist's method, quoting a statement by “widely-acknowledged expert Kurt Dubowski” that “no forensically valid forward or backward extrapolation of blood or breath alcohol concentrations is ordinarily possible in a given subject and occasion solely on the basis of time and individual analysis results.” Giese contended that because the toxicologist in his case had only a single blood test result to work with, “[t]he State cannot establish the reliability of retrograde extrapolation in general, and even if it could ... certainly cannot reliably apply it to the facts and data of this case.” Finally, Giese argued that “the State cannot prove the facts underlying the expert's opinion,” i.e., the time of the driving, the time of the drinking, and that no drinking occurred between the time of the driving and the time of the blood test.

¶ 11 The circuit court held a hearing on the admissibility of the retrograde extrapolation. At the hearing, the State called the toxicologist who analyzed Giese's blood sample. The toxicologist testified about her educational background, her training to become a toxicologist, her eight years of experience with the state crime lab, and her particular training on the “effect of alcohol dissipation and elimination.” She had performed retrograde extrapolation, which she also called “back extrapolation,” in other cases. She was familiar with books and studies concerning back extrapolation and with the rates of alcohol absorption and elimination generally accepted in her peer community of forensic toxicologists. She testified as to the established average, fast, and slow rates of elimination and explained how those rates were the foundation for her calculation of a range of possible blood alcohol concentration levels for Giese at the time of his crash.

¶ 12 As for the calculation in Giese's case, the toxicologist explained that she was informed that Giese's crash occurred between four hours and four and one-half hours before the blood draw and assumed that the alcohol was fully absorbed before the incident and no additional alcohol was ingested afterwards. Assuming those facts were true, it was her opinion to a reasonable degree of scientific certainty that Giese's blood alcohol concentration was above .02 at the time of the crash. On cross examination, she acknowledged that changes to her underlying assumptions could change her opinion. For instance, if the facts established that Giese had not absorbed all of the alcohol before the crash, her calculations would change.

¶ 13 The toxicologist acknowledged Dubowski's expertise and his statement that back extrapolation is ordinarily not possible when the only known data is a single blood test result at a particular time. The toxicologist explained that she had more than just the blood test result, namely, the “given scenario” in Giese's case and the assumptions she made about absorption of the alcohol. She repeated that her forensic opinion was dependent on her assumptions.

¶ 14 Giese also asked the toxicologist to discuss a paragraph from one of the books that were part of her training materials, describing retrograde extrapolation “from a time of the sampling to the time of the driving” as “a dubious practice given the variables that are in play.” On redirect, the toxicologist read from another portion of the same book, which discussed the considerations to be taken into account in retrograde extrapolation and that it is a “common practice” that “peers in [her] field, toxicologists,” testify concerning calculations using this methodology. On recross, the toxicologist again acknowledged that knowing whether the blood alcohol level was still increasing or was decreasing at the time of the driving was a “critical element” in using retrograde extrapolation. She explained that this was why she made assumptions in the calculation.

¶ 15 The circuit court, applying Wis. Stat. § 907.02, concluded that the expert's opinion about retrograde extrapolation was admissible in Giese's case and denied the motion to exclude it. The court explained that under the Daubert rule codified in § 907.02, the court performs “a gate-keeping function.” The court was satisfied that the toxicologist's testimony was based on sufficient facts and data because the toxicologist explained that, in addition to the time of the blood test and the result of the test, she had the rest of the “scenario.” Specifically, it was known that at about 2:12 a.m., Giese was found lying in the road and that Giese said that he crashed about three hours before that time. While it was theoretically...