Expert Witness Blog
Appellant appealed a decision by the circuit court allowing the expert witness testimony of a medical toxicologist. The appeals court affirmed the lower court opinion
Facts: This case (State of Wisconsin v. Lory F. Kerk – Wisconsin Court of Appeals – District III – September 13th, 2016) is an appeal on a conviction for a third offense of operating a motor vehicle while intoxicated. Lory Kerk states that the circuit court erred when it admitted the testimony of the State’s medical toxicology expert witness.
In August 2012, Kerk was pulled over in her vehicle for speeding. Officer Grumann detected an odor of alcohol and observed that Kerk had watery eyes. Kerk admitted that she had had had one drink six hours before and took a Vicodin and a Prozac earlier in the day as well. kerk subsequently failed a field sobriety test, was placed under arrest for OWI (operating a motor vehicle while intoxicated) and her blood analysis showed a BAC (blood alcohol concentration) of .063%.
Prior to her trial, Kerk filed a motion to exclude the expert witness testimony of Amy Miles on whether 1) Kerk was impaired by the amount of alcohol found in her blood and 2) a hypothetical person would be impaired by the amount of alcohol found in Kerk’s blood. The circuit court denied the motion and Kerk appealed.
Discussion: Kerk, in her arguments to the appeals court, states that Amy Miles 1) was not qualified to testify on the impairment in a person caused by alcohol and prescription drugs, 2) Miles’s impairment testimony was not based on reliable principles and methods because she was not qualified to testify on these issues, and 3) Miles’s impairment testimony was not based on sufficient facts or data.
The present court opined that the circuit court properly allowed for Miles’s testimony and that she was qualified to testify on impairment caused by alcohol and prescription drugs. The court found that Miles was qualified, because she 1) authored articles on driving and prescription drugs, 2) took part in publications related to alcohol, prescription drugs and impairment, and 3) participated in publications related to impaired driving.
The court noted that Kerk’s reliance on State v. Bailey (in which a chemist was not qualified to testify regarding how alcohol could impair a person) is misplaced because the lower court properly noted Miles’s training and experience, which qualified her to testify. In addition, Kerk’s reliance on State v. Donner (where a chemist was qualified to testify that all persons are impaired somewhat at a BAC level of .09%) will not work in her favor.
In addition, Kerk’s statement that Miles’s testimony on alcohol and prescription drug impairment was based on insufficient facts and data, was not supported any legal citation, legal authority, and was not developed adequately.
Conclusion: The judgment of the circuit court allowing the expert witness testimony of Amy Miles is confirmed by the appeals court.