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Motor Vehicles – OWI – expert testimony – retrograde extrapolation

By: WISCONSIN LAW JOURNAL STAFF//August 27, 2014//

Motor Vehicles – OWI – expert testimony – retrograde extrapolation

By: WISCONSIN LAW JOURNAL STAFF//August 27, 2014//

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Motor Vehicles – OWI – expert testimony – retrograde extrapolation

“We think Giese’s real dispute is not with the science the expert relied upon in his case but with the assumptions the expert made. It is true that the calculation would be more reliable if the expert had more facts about exactly when and what Giese drank. However, under the circumstances, we think Giese’s questions go to the weight of the evidence, not to its admissibility. See Burgess, 5 A.3d 911, 916 (‘concerns [about the reliability of retrograde extrapolation] relate to the proper weight to be afforded the evidence, not whether the evidence is admissible in the first place’). Giese remains free to challenge the accuracy of the expert’s assumptions. He may, for instance, propose competing scenarios—e.g., that Giese drank all the alcohol soon before driving. Or that he began drinking alcohol, or continued drinking, after the crash. In our adversary system, ‘[j]uries resolve factual disputes’ like those. State v. Abbott Labs., 2012 WI 62, ¶69, 341 Wis. 2d 510, 816 N.W.2d 145 (citation omitted); see also Daubert, 509 U.S. at 596 (‘Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.’). Giese still has the chance to undermine the assumptions that support the expert’s opinion by introducing evidence or arguing in favor of competing inferences from the known facts. But the expert’s opinion is admissible under Daubert.”

Affirmed.

Recommended for publication in the official reports.

2013AP2009-CR State v. Giese

Dist. II, Washington County, Muehlbauer, J., Brown, J.

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