Criminal Procedure — Confrontation Clause

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Wisconsin Court of Appeals

Criminal

Criminal Procedure — Confrontation Clause

Under Crawford v. Washington, 541 U.S. 36 (2004), the State may submit evidence of a driver’s blood alcohol level at trial even though the analyst who did the actual testing is unavailable to testify.

“[W]ith our supreme court so recently and favorably citing Barton, see Deadwiller, 350 Wis. 2d 138, ¶¶37-40, we have no choice but to conclude that Barton remains the law of our state. Only the state supreme court has the power to overrule our past decisions, Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997), except when United States Supreme Court precedent overrules those decisions in such clear terms that the Supremacy Clause compels our adherence to federal law instead, Jennings, 252 Wis. 2d 228, ¶43. Under the reasoning of Barton, the availability of a well qualified expert, testifying as to his independent conclusion about the ethanol testing of Griep’s blood as evidenced by a report from another state lab analyst, was sufficient to protect Griep’s right to confrontation. No binding federal precedent clearly overrules Barton.”

Affirmed.

Recommended for publication in the official reports.

2009AP3073-CR State v. Griep

Dist. II, Winnebago County, Gritton, J., Brown, J.

Attorneys: For Appellant: Moreno, Peter Shawn, Madison; Bushnell, Tricia J., Kansas City, MO; For Respondent: Sanders, Michael C., Madison; Levin, Adam Joseph, Oshkosh