Admissibility of Evidence

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Joshua J. Luther

Case No.: 2016AP1879-CR

Officials: Lundsten, P.J., Blanchard and Kloppenburg, JJ.

Focus: Admissibility of Evidence

Joshua Luther was charged under WIS. STAT. § 940.25(1)(am) with causing injury by operating a vehicle with a detectable amount of a restricted controlled substance in his blood. At issue here is the admissibility of evidence that Luther asserts supports an affirmative defense found in § 940.25(2)(a). In general terms, the defense requires a defendant to prove that the injury would have happened “even if” the defendant had exercised “due care” and there was no controlled substance in the defendant’s blood. Id. We refer to this defense throughout as the “even-if defense.”

Luther planned to rely on the even-if defense and, in support, present expert testimony indicating that the low level of the controlled substance in his blood would not have caused impairment. The circuit court granted the State’s pretrial motion to exclude this evidence. We granted Luther’s request for leave to appeal the resulting order. See WIS. STAT. RULE 809.50(3). As explained below, given the information in the record at the time the circuit court ruled, the pretrial ruling was proper, and we affirm.

However, at the same time we caution that the circuit court may need to revisit the topic depending on further developments. The circuit court’s ruling, in keeping with arguments made by the State before that court, appears to be based on the court’s conclusion that evidence of lack of impairment is never admissible to support the even-if defense. We question this conclusion. Accordingly, we affirm the circuit court’s pretrial ruling with the caveat that there may, or may not, be cause to revisit that ruling as this case proceeds.

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.