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State v. Chitwood

Court of Appeals of Wisconsin

April 13, 2016


         Submitted on Briefs January 21, 2016

          APPEAL from a judgment of the circuit court for Washington County: JAMES K. MUEHLBAUER, Judge. Cir. Ct. No. 2011CF411.

         On behalf of the defendant-appellant, the cause was submitted on the briefs of Kaitlin A. Lamb, assistant state public defender of Milwaukee.

         On behalf of the plaintiff-respondent, the cause was submitted on the brief of Warren D. Weinstein, assistant attorney general, and Brad D. Schimel, attorney general.

         Before Neubauer, C.J., Gundrum and Hagedorn, JJ.


Page 787

          NEUBAUER, C.J.

          [¶1] Andrew G. Chitwood appeals from a judgment of conviction rendered after a jury found him guilty of operating a motor vehicle under the influence of drugs and after revocation. During trial, the State offered the testimony of Nathan Peskie, a drug recognition evaluator, who had examined Chitwood while he was in the hospital after a single-car accident and concluded that he was impaired by a central nervous system depressant and narcotic analgesic. Peskie's testimony was admitted over the objection of defense counsel who argued that Peskie's opinion was unreliable and, thus, inadmissible under the Daubert standard codified in Wis. Stat. § 907.02(1) (2013-14).[1] See Daubert v. Merrell Dow Pharms., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). This was because, owing to Chitwood's injuries, Peskie was unable to complete all twelve steps of the drug recognition evaluation protocol. We hold that the circuit court did not erroneously exercise its discretion when it admitted Peskie's testimony and therefore we affirm the judgment.


          [¶2] The defendant, Andrew G. Chitwood, who had four prior operating while intoxicated convictions, was charged with operating a motor vehicle under the influence of a combination of intoxicant, controlled substance and controlled substance analog--fifth or sixth offense--and operating a motor vehicle after revocation.[2] See Wis. Stat. § § 346.63(1)(a), 343.44(1)(b). Section 346.63(1)(a) prohibits driving or operating a motor vehicle while under the influence of an intoxicant or other drug to a degree which renders the person " incapable of safely driving."


         Testimony of Eyewitness Randy Eller

          [¶3] At trial, Randy Eller testified that on October 28, 2011, at around 1:30 p.m., he was driving along Hillside Road when he observed a car in a ditch. The headrest on the driver's seat and the passenger's rear window were missing. The person in the driver's seat, whom Eller identified as Chitwood, had " blood all over his face." Chitwood was unable to exit the car from the driver's side door and ultimately had to use the rear driver's side window. Chitwood " didn't want [Eller] to call the police" because his father was coming to get him, but Eller insisted due to Chitwood's injuries. Chitwood had blood coming from " bad cut[s]" on his forehead and

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chin, which Eller thought needed stitches. Chitwood said that " an animal jumped out in front of him and he had to swerve to miss it."

         Testimony of Responding Officer Eric Essinger

          [¶4] Eric Essinger, a deputy sheriff for Washington County at the time of the incident, testified that he responded to the scene and observed Chitwood seated on the ground next to the front passenger side tire of the vehicle. There was " a lot of blood on [Chitwood's] face," and Essinger was unable to identify the exact area of injury. Chitwood told Essinger that he had swerved to miss a squirrel, but, a short time later, said it may have been a raccoon. Chitwood " appeared to be very relaxed, almost very lackadaisical," was speaking very slowly, and it was difficult to understand his responses. Chitwood appeared to have " a hard time staying awake. His head was bobbing from side-to-side. His eyes were real slow in opening and closing." After blinking, " he would have a hard time finding where [Essinger] was[,] and [Essinger] wasn't moving." These things " didn't appear to be normal behavior." Essinger thought that Chitwood might be under the influence of drugs or alcohol, but, when asked, Chitwood denied it. Essinger asked if Chitwood had taken any medication, and he said he had taken oxycodone and some other prescription medications earlier that day, but he could not recall their names. After Essinger had spoken with Chitwood for about five minutes, an ambulance arrived and placed him in a cervical collar and on a backboard in the back of the ambulance. As a result, Essinger was unable to conduct any field sobriety tests of Chitwood.

          [¶5] Regarding the scene, Essinger, a traffic crash reconstructionist investigator, saw tire tread marks running from the road to a black mailbox. The mailbox had a dent in the lower right corner and a white paint transfer; there was mail strewn about the box. Past the mailbox, there were black tire marks along the gravel shoulder and the grass ditch, leading to the vehicle's final resting location by some trees, which had been damaged. Based on the tread marks, Essinger thought that Chitwood was drifting off the road, neither accelerating nor heavily breaking. Essinger remarked that the tire marks appeared to indicate a " hard left-hand steering maneuver," then a " hard right-hand turning maneuver," and then the vehicle spun " in a clockwise direction." These marks did not indicate a swerve to avoid an animal.

          [¶6] At the hospital, Chitwood was " having a hard time speaking ... his eyes were still opening and closing very slowly, and it appeared that he was sleeping or falling asleep." Essinger observed that Chitwood did not respond to questions medical personnel asked. Based on Essinger's observations of the scene and Chitwood, and Chitwood's admission to having taken oxycodone, Essinger placed Chitwood under arrest. Upon his consent, Chitwood's blood was drawn, and Essinger requested the laboratory test for alcohol and a complete drug panel.

          [¶7] Around 6:00 p.m., after Chitwood had received medical attention, Essinger transported Chitwood to jail. By then, Chitwood's condition had changed, he was talking in a " more crisp tone," and he was able to walk without assistance.

         Testimony of Forensic Toxicologist Sara Schreiber

          Sara Schreiber, a forensic toxicologist at the Wisconsin State Crime Laboratory who tested Chitwood's blood, testified that the blood draw revealed the presence of oxycodone (33 ug/L), citalopram (62 ug/L), carisoprodol (9.6 mg/L), and meprobamate

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(30 mg/L). Alcohol was not detected in Chitwood's blood. Schreiber noted that oxycodone is for pain management, citalopram is an antidepressant, carisoprodol is a sedative/muscle relaxer, and meprobamate is a metabolite of carisoprodol. The citalopram was at therapeutic levels. The level of oxycodone found in Chitwood's blood could be interpreted in different ways. If the prescription was for Percocet, which comes only in a normal, not an extended, release, then this level, a peak, would be consistent with someone who took an approximate ten milligram dose about two hours prior to the collection of blood. Alternatively, that level could be achieved by taking a higher concentration more than two hours earlier so that the level of oxycodone peaked at some other level and came down to thirty-three micrograms. Chitwood's test results for carisoprodol (brand name Soma) were three times the therapeutic dose.

          Schreiber testified that oxycodone, a narcotic analgesic and central nervous system depressant, at the levels found in Chitwood's blood, would likely constrict a person's pupils, cause droopiness in the eyes, drowsiness, lack of muscle coordination, and slowing and slurring of speech. Carisoprodol, a muscle relaxant/sedative, at a high dose would likely result in dizziness, confusion, and drowsiness, reflected in difficulty in keeping one's eyes open.

          [¶10] Schreiber expected the drugs to have been in Chitwood's system at the time he was operating his vehicle and that a " regular person" would be unable to operate a motor vehicle safely given the combination and high level of drugs. She explained that if a person took one type of drug that caused drowsiness and took another type that did the same thing, the effect would be compounded. Schreiber also indicated there was a " high probability" that the " average person with the average tolerance" and with these levels of drug concentrations would not be able to operate a vehicle safely, but she acknowledged there could be a person with " a very good tolerance to these drugs" who could " handle those levels." Schreiber had never met Chitwood and did not know his tolerance level. In other words, depending on his prescription drug history, there was a " possibility" that the concentrations of drugs in Chitwood's system might not impair his ability to drive safely. Nevertheless, tolerance did not necessarily mask all the effects of the drugs. While " [s]ome people are able to perform through some of the symptoms ... it doesn't necessarily mean that everything is totally good and fine and that they wouldn't suffer any of the side effects at all."

         Testimony of Drug Recognition Evaluator Nathan Peskie

          [¶11] Nathan Peskie, a deputy sheriff with Washington County, testified that he was certified as a drug recognition evaluator. Peskie explained that an average law enforcement officer is trained to detect whether a person is under the influence of alcohol, and, while the same standard field sobriety tests are applicable to drugs, additional tests are required to determine whether impairment is by drugs. In this regard, a drug recognition evaluator receives additional training beyond that of the average law enforcement officer. Peskie's training consisted of eighty hours of classroom training and forty hours of field certification training. The classroom training covered the seven drug categories and proficiency in standard field sobriety tests. During field training, for twelve hours a day, Peskie practiced identifying persons impaired by drugs and attempted to identify which drug category caused impairment. To become certified, Peskie had to identify eighty percent of the test subjects correctly; Peskie scored 100%.

Page 790

Annually, Peskie attends eight hours of training on drugs and alcohol impairment in order to be recertified as a drug recognition evaluator. He has been continuously certified since 2007.

          [¶12] Peskie testified that in order to distinguish whether a person is under the influence of drugs or alcohol, a twelve-step procedure, used throughout the United States, is employed. He recounted the twelve steps as follows: (1) check for breath alcohol; (2) interview the arresting officer; (3) check pulse, horizontal gaze nystagmus (HGN) and pupil size; (4) conduct " full battery of HGN checks," which includes " smooth pursuit, nystagmus at maximum deviation, prior to forty-five degrees," vertical gaze nystagmus (VGN), and lack of convergence of the pupils; (5) conduct divided attention tests, which include the Rhomberg test, the walk-and-turn test, the one-leg stand test, and finger-to-nose test; (6) check vital signs, such as pulse, blood pressure, and body temperature; (7) check pupils in different lighting conditions and then check nasal and oral cavities for signs of drug use; (8) check muscle tone; (9) check for injection sites; (10) ask questions about drug use; (11) record his opinion; and (12) review toxicology reports. In the last step, Peskie stated, he does not receive the toxicology results until after he has rendered an opinion on whether the person was impaired and, if so, by which drugs.

          [¶13] Peskie testified that because Chitwood was wearing a cervical collar and on a backboard in the trauma room of the emergency room and, thus, he did not want to interfere with medical attention, Peskie conducted only a partial drug recognition evaluation on Chitwood. When the State inquired whether Peskie could render an opinion as to the presence of any drugs, defense counsel objected on the basis of lack of foundation and speculation.

          Outside the presence of the jury, defense counsel explained that a foundation for Peskie's opinion was lacking because he conducted only a partial evaluation. The prosecutor suggested that in order to establish a foundation she be permitted to ask Peskie if he could render an opinion based on a partial examination. Peskie stated that he was able to render an opinion based on a partial examination, that this was allowed by the protocol, and that he had been trained in how to render an opinion with only partial information. Peskie explained that the twelve steps were " the ideal process," but that it was " common," for example where a person was involved in a motor vehicle accident, to be unable to conduct all twelve steps. It was also common to determine that a person was not impaired based on only a partial evaluation. Peskie's training included scenarios where only a partial evaluation could be conducted.

          [¶15] The court then permitted defense counsel to conduct a voir dire examination of Peskie. Peskie stated that in his training he had been given " face sheets" that were only partially completed, from which he was required to form an opinion. Some of the face sheets were similar to Chitwood's case. However, none of the field certifications he conducted involved injuries. Consideration of possible medical conditions, and specifically head injuries, were part of Peskie's training, but Peskie did not know what Chitwood's medical diagnosis was. He did testify, however, that he did not observe " any signs of a head injury, which [he] had been trained in, that would have prevented [him] from conducting HGN for example."

          [¶16] In response to a follow-up question from the prosecutor, Peskie answered that his classroom training and recertifications also involved partial evaluations.

Page 791

          [¶17] The court ruled that Peskie would be permitted to give his opinion on whether Chitwood was intoxicated. In doing so, the court found that Peskie's opinion was not " expert scientific testimony" and, thus, Daubert did not apply. Daubert, 509 U.S. at 579. Drug recognition evaluations were similar to standardized field sobriety tests, the court said. Defense counsel would be permitted to cross-examine Peskie about his lack of training or experience under identical circumstances, but that would go to the weight of his testimony.

          [¶18] Continuing his testimony, Peskie stated that whether he was able to form an opinion on intoxication based on a partial evaluation depended on the information he was able to gather. Peskie would use the tests he conducted, the statements and observations of the arresting officer, and " the manner of the contact." In this instance, he was able to render an opinion. He told the jury that he had performed partial evaluations in the past, for example, where the driver was injured or had a " physical defect," such as a bad back or knees or even persons who had a false eye. Some of these situations were contained within a log he maintained over the years.

          [¶19] As to Chitwood, Peskie observed that he was " extremely relaxed" despite the circumstances. He was " on the nod," meaning that he appeared to be sleeping but, in fact, was conscious and alert. In other words, his body was " so relaxed" that his eyes were closed. Chitwood had a delayed verbal response to questions Peskie posed. When Chitwood did respond, his speech was slow and slurred. His voice was thick, low, and raspy. His pupils were constricted to two millimeters when, in normal light, they should have been between two-and-one-half and five millimeters. As medical personnel attended to Chitwood, scrubbing his lacerations and stapling his forehead, he did not make any sounds or any movements and neither his pulse nor his blood pressure were elevated.[3] In Peskie's experience, when a person was involved in a crash and in the presence of law enforcement, typically that person's pulse and blood pressure were elevated. When asked, Chitwood acknowledged that he was taking Percocet. Based on these observations, as well as Essinger's observations at the scene and the crash, Peskie concluded that Chitwood was under the influence of a narcotic analgesic such as oxycodone.

          Peskie also concluded that Chitwood was under the influence of a central nervous system depressant such as a muscle relaxer or an antidepressant. This conclusion was based on Chitwood's relaxed demeanor, delayed response, and lethargic movements, as well as HGN and VGN checks of his eyes. Peskie observed that Chitwood had a " lack of smooth pursuit in his left and right pupil," a " distinct and sustained nystagmus at maximum deviation in his left and right pupil," and a VGN.[4] A HGN, Peskie testified, was caused by a central nervous system depressant, an inhalant, or a dissociate anesthetic such as PCP, the latter of which was " extremely rare." Chitwood stated he was taking Soma and that he ingested the Soma and Percocet around 3:00 a.m., and again sometime that morning.

          [¶21] It was Peskie's opinion that as a result of ...

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