writes about the conviction for DUI based solely on circumstantial evidence:
Gregg B. Kandutsch was bombed when police arrested him at his wife's home in Wausau in 2006. He wasn't driving, or even in a motor vehicle, and no one saw him driving to get there. So how did prosecutors convict him of his fifth-offense drunken driving?
They relied on circumstantial evidence, the kind commonly used to prove many other crimes but extremely rare in drunken driving cases. Kandutsch appealed, but on Tuesday the Wisconsin Supreme Court upheld his conviction. Kandutsch was done in by the electronic monitoring device he was wearing while on probation for other offenses. It showed he left his mother's house in Rib Mountain about 15 minutes before he was arrested in Wausau. Jurors concluded he must have driven himself there.
Kandutsch challenged the admissibility of a computer-generated report from his monitoring device, offered without expert testimony. According to the opinion, police arrested Kandutsch after his estranged wife called to say he had broken into her home. At the hospital where he was treated for injuries suffered when he broke in, Kandutsch had a 0.23 blood-alcohol level. His green van was parked near his wife's house, so police charged him with DUI.
Kandutsch argued that he had left his mother's home in Rib Mountain much earlier in the night. After he knocked on his wife's door and got no answer, he walked to the nearby Cop Shop tavern, drank a pitcher of beer and $20 worth of Southern Comfort and then tried to break in.
The supreme court agreed with the appeals court that the technology of the electonic ankle bracelet monitor was no so complex as to require an expert's testimony, noting that it has been used successfully for years without problems. The court also found that the probation agents who installed and used the home monitoring system for Kandutsch laid an adequate foundation for the evidence that he went out of range at 10:03 p.m., not 9 p.m. as he claimed.
Chief Justice Shirley Abrahamson dissented, joined by Justice Ann Walsh Bradley.
"I disagree with the majority's conclusion that the testimony of the two Department of Corrections (DOC) agents was sufficient to admit the report generated by the electronic monitoring device that was admitted as evidence in the present case," Abrahamson wrote." The underlying scientific principles have not been presumed reliable based upon a statute, in a prior determination in our case law, or by resort to sources whose accuracy cannot reasonably be questioned such that taking judicial notice is appropriate."
She noted that reliance on technology doesn't necessarily make it reliable in court, citing law enforcement and corrections' common use of polygraphs, the results of which are not admissible in court.
So there you are. Don't drink and drive while you are on home monitoring.