Intoxication in Civil Cases: Does Wisconsin Require Expert Testimony to Explain the Link Between Intoxication and How it Contributed to the Accident?

WDC Journal Edition: Summer/Fall 2008
By: Ryan D. Burke and Sammi-Jo Nevin

Unfortunately, intoxication is often linked to motor vehicle accidents in Wisconsin. The law with respect to the criminal penalties and procedures when it comes to operating a vehicle while intoxicated is relatively clear. What about the impact of intoxication on the apportionment of civil liability for a motor vehicle accident? I recently dealt with this issue in a case discussed below. It became apparent that the law in Wisconsin was somewhat unclear about whether a party seeking to offer evidence of intoxication is required to call a toxicologist as a witness in order to explain the impact of the level of impairment on the driver’s judgment and ability to safely operate a vehicle.

Frederick v. American Family, et.al, was a case presented to a Dane County Jury in December of 2007. Prior to the trial, the Circuit Court ruled that the BAC test performed on the defendant driver was admissible without the need for expert testimony from a toxicologist. The BAC test result was .123. The test was performed within three hours of the accident. There was no dispute that the defendant driver was guilty of operating a vehicle with a prohibited BAC of .123. However, the circumstances of the accident made it clear that the defendant driver had not caused the accident. With regard to his involvement in the accident, he was simply in the wrong place at the wrong time. The defendant’s pick-up truck was t-boned by the plaintiff’s car as the plaintiff exited a farm driveway and attempted to cross a highway. The plaintiff came out of the driveway from behind tall corn at night. Further, the plaintiff did not have his headlights activated. There was no evidence that the defendant was speeding or had any way of avoiding being hit in the passenger side of his truck by the plaintiff. While the plaintiff disputed some of these issues in the trial, the evidence was clear that the defendant driver had done nothing to cause the accident.

Is it necessary for a party to hire a toxicologist to explain the link between the intoxication and how it contributed to the accident?

The Law in Wisconsin

There is no clear rule in Wisconsin which requires expert testimony to explain the impact of a person’s level of impairment on their ability to drive. However, how can a jury determine the amount of negligence to allocate to each party in a civil case, when no explanation exists as to how this BAC relates to the impairment of the intoxicated party? It seems that this issue may require a case by case analysis. If an intoxicated driver is obviously negligent because they drove through a stop sign or veered over the center line, a jury can use its common sense to conclude that the driver was causally negligent. Alternatively, under a factual scenario similar to the Frederick case where the negligence of the driver or a pedestrian is not clear, a jury is left to speculate as to the meaning of the intoxication without guidance from an expert about how the person’s conduct was impaired. Wisconsin now sets the prohibited BAC level at .08. However, several years ago the legal limit was .10. So, how impaired is someone who is operating a vehicle at .09? How impaired is a pedestrian crossing the street at .15?

As set forth above, the distinction between criminal law and civil law in regard to intoxication arguably creates a need for different standards for expert testimony with regard to intoxication. The primary goal of the rules of admissibility of this evidence in the context of criminal prosecution of OWI, set forth in Wis. Stat. sec. 346.63, appears to be proving the violation of the statute. Obviously, causal negligence is not an issue. Therefore, admitting a BAC without expert testimony seems to make sense in proving the level of intoxication of the individual. On the other hand, civil law seeks to establish the causal negligence of the parties and how much negligence to apportion to each party involved in the incident. As a result, the level of impairment caused by intoxication plays a large role in evaluating the negligence of the parties. Intoxication alone does not make a party causally negligent. Rather, a negligent act must combine with the impairment in order to constitute causal negligence. Therefore, in civil cases, the requirement of establishing the link between intoxication and causal negligence seems to create a need for expert testimony regarding the degree of impairment.

Prior to 1949, Wisconsin case law required expert testimony to interpret the results of intoxication tests. See Kuroske v. Aetna Life Ins. Co. of Hartford, Conn., 234 Wis. 394, 291 N.W. 384 (1940). Though the Kuroske court insisted upon this expert testimony, a large part of its decision rested on the experimental status of intoxication tests at that time. Id. at 388. Furthermore, the court acknowledged a possibility that the dependability of such tests may increase with further development and in the future become almost conclusive on the question of intoxication. Id. at 388. That prophecy turned to reality in 1949 when the Wisconsin legislature enacted Wisconsin Statutes section 85.13(2)(1949-50), which approved the admissibility of chemical tests that determined intoxication and gave weight to those tests similar to the weight afforded them today . City of West Allis v. Rainey, 36 Wis.2d 489, 494, 153 N.W.2d 514, 517 (1967). However, the new statute failed to speak on the necessity of expert testimony to explain intoxication tests.

Following the enactment of Section 85.13(2), the Wisconsin Supreme Court again emphasized the need for expert testimony in relation to the intoxication tests. In State v. Resler, the State argued that the new statute encompassed the judgment of all experts, which made production of expert testimony unnecessary. 262 Wis. 285, 292, 55 N.W.2d 35, 39 (1952). The Resler court rejected this argument and determined that accepting the State’s interpretation rendered the first sentence of the statute meaningless. Id. at 293, 55 N.W.2d 35, 39. Subsequent to Resler, the Wisconsin legislature repealed Section 85.13(2) and replaced it with Section 325.235 (1955-56) (renumbered Wis. Stats. § 885.235 (2005-06)), allowing chemical tests performed within two hours after the event in question to be admissible without requiring expert testimony as to its effect. City of West Allis, at 495, 153 N.W.2d at 517. In City of West Allis v. Rainey, the court deemed the statutory language of Section 325.235 clear and unambiguous, resulting in its holding that “an expert witness is not required to interpret the results of the enumerated chemical tests in so far as their effects are concerned. . . . the statute itself evaluates the results of the various tests.” Id. at 495, 153 N.W.2d at 517-18. In accordance with the Supreme Court’s prediction in Kuroske, Section 325.235 made chemical tests regarding intoxication levels almost conclusive.

Comparable to Section 325.235, Wisconsin’s current statutory language controlling the admissibility of chemical tests states in relevant part:

(1g) In an action or proceeding in which it is material to prove that a person was under the influence of an intoxicant or had a prohibited alcohol concentration or a specified alcohol concentration while operating or driving a motor vehicle…chemical analysis of a sample of the person’s blood or urine or evidence of the amount of alcohol in the person’s breath, is admissible on the issue of whether he or she was under the influence of an intoxicant or had a prohibited alcohol concentration or a specified alcohol concentration if the sample was taken within 3 hours after the event to be proved.The chemical analysis shall be given effect as follows without requiring any expert testimony as to its effect.

(b) Except with respect to the operation of a commercial motor vehicle as provided in par. (d), the fact that the analysis shows that the person had an alcohol concentration of more than 0.04 but less than 0.08 is relevant evidence on the issue of intoxication or an alcohol concentration of 0.08 or more but is not to be given any prima facie effect.

(3) If the sample of breath, blood, or urine was not taken within 3 hours after the event to be proved, evidence of the amount of alcohol in the person’s blood or breath as shown by the chemical analysis is admissible only if expert testimony establishes its probative value and may be given prima facie effect only if the effect is established by expert testimony.

Wis. Stats. § 885.235 (1g), (1g)(b), (3) (2005-06) (emphasis added). No necessity for expert testimony appears within the statute, unless a chemical test is administered outside the three hour time limit.

No inference of negligence exists purely because a party in the action consumed intoxicants. Rather, a link between the intoxication and causal negligence must be established. Intoxication itself does not give rise to liability—in order to be actionable, intoxication must be accompanied by an act of causal negligence such as speed, lookout, or management and control. Klinzing v. Huck, 45 Wis.2d 458, 466, 173 N.W.2d 159, 166 (1970); Bronk v. Mijal, 275 Wis. 194, 203-04, 81 N.W.2d 481, 486 (1957). In State v. Waalen, the court acknowledged that though a person under the slightest influence of an intoxicant may be somewhat less able to act clearly either physically or mentally, not every person who drinks alcohol falls within the scope of the statute. State v. Waalen, 130 Wis.2d 18, 25-26, 386 N.W.2d 47, 50 (1986) (citing Fond du Lac v. Hernandez, 42 Wis.2d 473, 475-76, 167 N.W.2d 408 (1969)). If a person’s consumption of alcoholic beverages fails to cause the requisite level of impairment, then “he is not under the influence of an intoxicant within the meaning of the statute or ordinance in this particular case.” Id.

Section 907.02 allows expert testimony “if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue . . . .” Wis. Stats. § 907.02 (2005-06). Expert testimony is required when interpretation of the evidence requires special knowledge, skill, or experience outside the ordinary person’s realm of experience or knowledge. State v. Doerr, 229 Wis.2d 616, 623-24, 599 N.W.2d 897, 901 (1999) (citing State v. Johnson, 54 Wis.2d 561, 564, 196 N.W.2d 717, 719 (1972)). Without expert testimony, no sufficient proof would exist, and the jury would be forced to speculate. Id. For example, in State v. Doerr, the court required expert testimony to admit results from a preliminary breath test (PBT) because it was a scientific device and “an ordinary person requires expert testimony to interpret evidence from this device.” Id. at 624, 599 N.W.2d at 901 (There is a statutory bar on evidentiary use of PBT results that is limited to motor vehicle violations. The intoxicated party in this case was charged with battery to and resisting a police officer). Doerr indicates some hesitation by the Wisconsin Supreme Court to admit scientific test results without an expert, especially when the subject-matter appears to be of a more specialized nature and likely harder for an average juror to comprehend.

Admitting a chemical intoxication test result without expert testimony seems appropriate when proving simply that a driver violated the criminal prohibition against operating a vehicle with a prohibited BAC. However, in a civil case, many more factors must be considered in order for a jury to properly apportion causal negligence. Is a driver causally negligent merely because he or she was intoxicated? In general, operating a vehicle while intoxicated constitutes negligence per se.See State v. Wolske, 143 Wis.2d 175, 182, 420 N.W.2d 60, 62 (Ct. App. 1988). (See also, State v. Caibaiosai, 122 Wis. 2d 587, 363 N.W.2d 574 (1985)). Though the driver in this scenario was intoxicated, there may be a dispute as to what actually caused the accident. For instance, the Wisconsin Court of Appeals held that a trial court properly refused a negligence per se instruction when a dispute existed as to the cause of the accident. Vonch v. American Standard Ins. Co., 151 Wis.2d 138, 149, 442 N.W.2d 598, 602 (Ct. App. 1989) (dispute as to which of the two drivers involved entered the other’s lane first). When the cause of the accident is disputed and one party is intoxicated, a link between intoxication and causal negligence is still necessary.

In addition to case and statutory law, Wisconsin Jury Instructions provide guidance in determining whether expert testimony is needed to admit blood alcohol concentration. The instruction regarding chemical test results of intoxication states:

If you find there was an alcohol concentration of more than 0.04 but less than 0.08 at the time of the test, you should consider that fact as relevant evidence on the issue of whether the person (was under the influence of an intoxicant) (had an alcohol concentration of 0.08 or more) at the time in question, but it is not be itself a sufficient basis for a finding that the person (was under the influence of an intoxicant) (had an alcohol concentration of 0.08 or more) at the time in question.

If you find there was an alcohol concentration of 0.08 or more at the time of the test, you should find from that fact alone that the person was under the influence of an intoxicant at the time in question, unless you're satisfied to the contrary from other evidence.

If you find there was an alcohol concentration of more than 0.00 but less than 0.08 at the time of the test, you should consider that fact as relevant evidence on the issue of whether the person was under the combined influence of alcohol and (a controlled substance) (a controlled substance analog) (any other drug) at the time in question, but it is not by itself a sufficient basis for a finding that the person was under the combined influence of alcohol and (a controlled substance (a controlled substance analog) (any other drug) at the time in question.

WIS JI-Civil 1008. The third comment following Instruction 1008 invokes language from Section 885.235(3). “Evidence of chemical tests for intoxication is generally admissible if intoxication is at issue. Wis. Stat. § 885.235(1g). But if the sample (blood, breath, or urine) was taken more than three hours after the event, the analysis is admissible only if expert testimony established its probative value and may be given prima facie effect only if established by expert testimony. Wis. Stat. 885.235(3).” Wis JI-Civil 1008. Another Wisconsin Jury Instruction provides guidance in regard to intoxication and negligence. The instruction regarding voluntary intoxication and the relation to negligence states in part:

1035 Voluntary Intoxication:
Relation to Negligence

In answering the question(s) of the verdict relating to the negligence of any party, you are not to consider a person’s drinking of intoxicants before the accident unless you determine that the intoxicants consumed affected the person to the extent that the person’s ability to exercise ordinary care (in the operation of the vehicle) (and) (or) (for the person’s own safety) was affected or impaired to an appreciable degree. A person who voluntarily consumes intoxicants must use the same degree of care in the operation of a vehicle for his or her self-protection as one who has not consumed intoxicants.

WIS JI-CIVIL 1035. The comments following this instruction state in part:

This instruction should be given only when there is evidence permitting a reasonable inference that the drinking done by the driver or guest affected him or her to the extent stated.
In Landrey v. United Serv. Auto Ass’n, 49 Wis. 2d 150, 158, 181 N.W.2d 407 (1970), the court stated the general rule on the relation between intoxication and negligence by quoting from 38 Am. Jur. Negligence § 36 as follows:

Voluntary intoxication is not negligence per se. The law of negligence, however, does not put a premium upon voluntary drunkenness. From the standpoint of civil liability, the conduct of an intoxicated man is judged by the same standard as that applied to the conduct of a sober man. Ordinary care is not measured by what every prudent drunken man would do under like circumstances, but by what every prudent sober man would do under like circumstances.

Additionally, comments following the text of Jury Instruction Wis JI-Civil 1035, emphasize that it should only be given when evidence supports a reasonable inference that the consumption of intoxicants by the driver or guest affected that party’s ability to exercise ordinary care.

Apart from Frederick, two other recent circuit court decisions have addressed the need for expert testimony when intoxication is an issue. The first case involved a driver who struck a drunk pedestrian. In Schlafer v. Am. Family Mut. Ins. Co., the Dane County Circuit Court held that admitting evidence of intoxication requires an expert. No. 02-CV-001362 (Wis. Cir. Ct. Dane County Mar. 31, 2003). In Schlafer, the defendant driver struck the plaintiff pedestrian, who had a BAC in excess of .20 and tried to cross East Washington Avenue in the middle of traffic. The defendant sought to introduce the plaintiff’s BAC as evidence of his contributory negligence in causing the accident that injured him. The Circuit Court held that admitting the BAC by itself would be prejudicial because the jury would be unable to interpret the probative value of that information without any kind of guidance. (Mar. 31, 2003 Motion Hearing, 6:25-7:9). The Court also held that the defense needed an expert to testify as to how that level of impairment affected the plaintiff. (Mar. 31, 2003 Motion Hearing, 10:9-12). Keep in mind that cases with pedestrians are somewhat different because many of the cases, statutes and jury instructions deal directly with driving and intoxication.

Additionally, the Court in Mt. Morris Mut. Ins. Co. v. Husom, determined that evidence of a driver’s BAC level could not be admitted without testimony from a toxicologist. No. 03-SC-636 (Wis. Cir. Ct. Sauk County, April 15, 2004). In Husom, the plaintiff filed a Motion in Limine asking the court to admit evidence of the defendant-driver’s intoxication. In turn, the defense argued that the admission of intoxication necessitated expert testimony regarding the role that the defendant’s intoxication played in causing the accident. The Circuit Court ruled that the BAC level could not be shared with the jury unless a toxicologist explained the possible effects on the defendant at that particular BAC level.

In Frederick, the Dane County Circuit Court ruled that the BAC test was admissible and further ruled that the defendant driver was negligent as a matter of law for operating his vehicle with a prohibited BAC. (Wis. Cir. Ct. Dane County Case No. 06-CV-1393). In Frederick, the jury was presented with the BAC level and the verdict form found the defendant driver negligent as a matter of law. The Court did not answer the question of cause as a matter of law. The jury was then allowed to determine the question of cause for both drivers as well as the apportionment of negligence. The verdict apportioned 30% of the causal negligence on the defendant and 70% of the causal negligent on the plaintiff.

Conclusion

The law in Wisconsin on this issue is unclear. There does seem to be an argument that an expert is required under certain circumstances to explain how the impairment contributed to the accident. A stronger argument for the need for expert testimony may exist in cases involving impaired pedestrians. However, it is hard to believe that a juror can understand how the BAC level of a driver played a role in an accident without some type of expert guidance on that issue. Even if not required, you should consider obtaining the help of a toxicologist to offer testimony about the role that the intoxication played in the accident. Expert testimony would be conducive to understanding the BAC level and impairment not only for an intoxicated driver, but also for an intoxicated pedestrian. Merely admitting the result of a chemical intoxication test tells a jury very little about how that number relates to the intoxicated party’s level of impairment and arguably fails to aid the jury in making determinations of causal negligence.