The Latest and Greatest in OWI Defense

1. The Latest and Greatest in OWI Defense Andrew Mishlove, Esq. Board Certified Specialist in OWI Defense National College for DUI Defense American Bar Association Accredited andrew@MishloveandStuckert.com

2. Role ModelsSir Edward Marshall Hall

3. Role ModelsGerry Spence

4. Role ModelsJames Shellow

5. Role Models

6. Three Trends to Discuss 1. Daubert Hearings 2. McNeely Arguments 3. Confrontation

7. Daubert Applies to Expert Opinions and Exposition • Two types of witnesses: Lay and Expert • Two types of Opinion Testimony: • Lay: FRE 701; Wis. Stats. 907.01 • Expert: FRE 702; Wis. Stats. 907.02 • Three types of expert testimony: • Fact: “The blood smelled bad.” • Exposition: “Unrefrigerated blood may decompose.” • Opinion: “I believe the blood was decomposed.”

8. Lay Opinions907.01 • 907.01 Opinion testimony by lay witnesses. If the witness is not testifying as an expert, the witness's testimony in the form of opinions or inferences is limited to those opinions or inferences which are all of the following: • (1)Rationally based on the perception of the witness. • (2) Helpful to a clear understanding of the witness's testimony or the determination of a fact in issue. • (3) Not based on scientific, technical, or other specialized knowledge within the scope of a witness under s. 907.02 (1). • History: Sup. Ct. Order, 59 Wis. 2d R1, R205 (1973); 1991 a. 32; 2011 a. 2.

9. Expert Testimony907.02 • 907.02 Testimony by experts. • (1) If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if the testimony is based upon sufficient facts or data, the testimony is the product of reliable principles and methods, and the witness has applied the principles and methods reliably to the facts of the case. • (2) Notwithstanding sub. (1), the testimony of an expert witness may not be admitted if the expert witness is entitled to receive any compensation contingent on the outcome of any claim or case with respect to which the testimony is being offered. • History: Sup. Ct. Order, 59 Wis. 2d R1, R206 (1973); 2011 a. 2.

10. IPSE DIXIT“Because I Said So”Or“Based On My Training and Experience” • Experience alone is not enough. The witness must be able to articulate: • How experience leads to the conclusion reached, • Why that experience is a sufficient basis for the opinion, • How that experience is reliably applied to the facts. • The trial court’s gatekeeping function requires more than simply ‘taking the expert’s word for it.’ … The more subjective and controversial the expert’s inquiry, the more likely the testimony should be excluded as unreliable.” • FRE 702 Advisory Committee • “The expert’s testimony must be grounded in an accepted body of learning or experience in the expert’s field, and the expert must explain how the conclusion is so grounded.” • FRE 702 Advisory Committee. • In Kumho Tire, in which the Court found that an engineer’s opinion amounted to ipse dixit. This was a visual and tactile examination of a tire.

11. Daubert and OWI Law • Daubert was intended by the federal courts and the state legislature as “tort reform.” • It is unclear how courts will apply these principles to criminal law. • Law of other jurisdictions offers some guidance but is not decisive. • The rule applies to both testimony and to witnesses. • Many officers are either unqualified or unable to state their qualifications.

12. Possible Expert Testimony in OWI Cases • Driving Behavior • Stopping • Eyes, Odor, Speech • Personal Contact • Field Tests. • Impairment by Medication or Drugs, toxicology. • DRE Evaluations • Accident Investigation (Remember Kumho Tire). We Must Ask: Will this be 907.01 lay opinion evidence or 907.02 testimony? It may start out as one but become another.

13. Expert Testimony in OWI Cases • FIELD TESTS: • WilkensRule: field tests are lay opinion testimony under 907.01. • DO NOT ALLOW IT TO BE USED AS EXPERT. • HGN IS DIFFERENT • Non-Standardized • Finger to Nose • Alphabet • Counting • Standardized – What does that mean? • WAT • OLS • HGN • CASES THAT YOU MUST KNOW: • U.S. V. Horn, 185 F.Supp. 530 (D. Maryland, 2002). • Ohio v. Homan, 732 N.E.2d 952 (2000). • West Bend v. Wilkens, 278 Wis.2d 643 (Ct.App. 2005). • Florida v. Meador, 674 So.2d 826 (Ct.App. 1996). • State v. Zivcic, 229 Wis.2d 119 (Ct.App. 1999).

14. HGN is Different • Dispute Regarding Whether it is 701 or 702 evidence. • Wilkens footnote specifically excludes HGN from the holding. • Oklahoma says that it is 701, as does Horn. • Many say it is 702, as does Meador. • Ohio / Florida distinction • US v. Horn: 701, but…….

15. City of West Bend v. Wilkens • Non-Standardized Field Tests • e.g. Finger to Nose • No HGN given. HGN specifically exempted from the holding in footnote 5. • Cites Florida v. Meador. • Rejects the notion that field tests are scientific.

16. The Meador Rule • Cited by Wilkens and other Wisconsin cases. • Psychomotor field sobriety tests are not reliable enough to be considered scientific; hence they are inadmissible under 702. • Psychomotor tests are admissible under 701 as lay opinion evidence; but, referece to terms such as “test” “pass” “fail” “points” is not allowed (simialr to Horn). • HGN is 702 testimony subject to Daubert.

17. Retrograde Extrapolation(Blood Alcohol Curve) • Not generally accepted. • Kurt Dubowski frowns on it • Requires multiple points of reference. • “Dubious practice:” A.W. Jones • Many “experts” are not qualified. State experts have only one week at the Borkenstein School. Defense experts may have little more than that.

18. Issues in Chemical Testing • Admissible by statute if done by statute. • Presumption of reliability in a criminal case is subject to challenge: • No persuasive criminal precedent. • Sandstrom v. Montana, 442 U.S. 510 (1979). • Are there openings for Daubert challenges in breath testing? • Strict adherence to statutory protocol trumps Daubert as to admissibility. That, however, is only the beginning….

19. Issues in Breath Testing • Is there an opening for Daubert challenges in breath testing? • Mouth Alcohol: • Efficacy of detector • Efficacy of the .02 correlation factor. • Efficacy of the observation period. • GERD • Breath as a determinant of amount of alcohol consumed (partition ratio). • RFI detection (Disabled) • Breath and body temperature • Blow volume and duration

20. Issues in Blood Testing • Product Quality Control • Expiration Date/Sterility • Refrigeration/Storage • Fermentation (See the Champion) • Proficiency testing and failure • Calibration • Co-elution • Anomalous Chromatograms (electrical interference?) • Software problems

21. Other “Expert” Testimony • Drug Impairment • Breath and Blood Quality Assurance • DRE Evaluations • Accident Investigation

22. Missouri v. McNeely133 S.Ct. 1552 (2013) Schmerber v. California, 384 U.S. 757 (1966). State v. Bohling, 173 Wis.2d 529 (1993).

23. Retroactive/ Good Faith • Davis v. United States, 131 S. Ct. 2419, 564 US __, 180 L. Ed. 2d 285 (2011) • 4th Amendment decision ARE “retroactive.” • Warrantless non-consensual search is presumed unreasonable. • The exclusionary rule may not apply, if the state can prove a good faith reliance on well-settled precedent. • Schmerber exigency rules still apply. • Insist on a “Schmerber/Davis” hearing.

24. McNeely Issues • Brooks v. Minnesota, 133 S. Ct. 1996, 185 L. Ed. 2d 863 (2013). Breath case that was simply remanded for consideration in light of McNeely. • Minnesota v. Brooks, 2013 Minn. LEXIS 426 (2013). • Implied consent is still valid • McNeely applies to breath • Non-consensual breath tests are a 4th Amendment violation: • Re-visit Quelle? • PBTs?

25. Confrontation Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) Bullcoming v. New Mexico, 131 S.Ct. 270 (2011) State v. Griep, Appeal 2009AP3073, certified to the Wisconsin Supreme Court.

26. National College for DUI Defense www.NCDD.com Winter 2014, San Diego Mastering Scientific Evidence 2014, New Orleans Summer Session 2014, Harvard Law School, Cambridge. NACDL/NCDD Fall Session 2014, Las Vegas

27. The Latest and Greatest in OWI Defense Andrew Mishlove, Esq. Board Certified Specialist in OWI Defense National College for DUI Defense American Bar Association Accredited andrew@MishloveandStuckert.com