Requests to Admit Toxicology Reports and Blood Alcohol Concentration
When plaintiff’s counsel serves a Request to Admit the State Crime Laboratory Toxicology Report and blood alcohol concentration of your client, who is a defendant in a civil auto personal injury matter, is there any authority supporting a denial or a response that “the information known or readily obtainable is insufficient to allow the defendant to admit or deny the request?” The short answer is yes, and that authority is found in Wis. Stat. § 885.235, discussed in this Article. Plaintiff’s counsel may argue that an admission will avoid the cost and time in laying the foundation for the admissibility of the results of the defendant’s blood draw. She may additionally argue that the following factors support admission: the defendant’s sworn deposition testimony regarding his alcohol consumption prior to the accident; the police “investigative reports” regarding the blood draw; and that the defendant was “found guilty of operating while intoxicated.” However, as explained, this type of evidence merely presents issues of fact and does not conclusively establish either intoxication or prohibited blood alcohol concentration.
1. The Toxicology Report and Blood Alcohol Concentration Test Result Only Create a Rebuttable Presumption of Blood Alcohol Concentration.
Toxicology Reports are not admissible as certified medical records under Wis. Stat. § 908.03(6m) because the State Crime Laboratory is not a “health care provider,” nor is its Toxicology Report a “patient health care record.” Wisconsin Stat. § 885.235 governs admissibility of the blood alcohol concentration shown in the Toxicology Report.1 Under that statute, “[t]he fact that the analysis shows that the person had an alcohol concentration of 0.08 or more” is admissible without expert testimony only as prima facie evidence that a person was under the influence of an intoxicant or that he had an alcohol concentration of 0.08 or more in cases where it is “material” to prove this, and only if the blood sample was taken within three (3) hours after the accident.2
Even if the blood was timely drawn within three (3) hours after the accident and the Toxicology Report and blood alcohol concentration are admitted without expert testimony as prima facie evidence, Wis. Stat. § 885.235(4) still expressly allows the defendant to offer “competent evidence” to defend the issues of intoxication and blood alcohol amounts or concentration.3 If the blood sample was not drawn within three (3) hours after the accident, Wis. Stat. § 885.235(3) expressly requires expert testimony by the proponent of the evidence to establish the probative value of the blood alcohol concentration in order for it to be admissible.4
Under Wis. Stat. § 903.01, a presumption created by statute “imposes on the party relying on the presumption the burden of proving the basic facts.” That statute further provides that “once the basic facts are found to exist”—here, the blood alcohol concentration of 0.08 or more—a presumption arises and imposes a burden on the party opposing the admission of the evidence to rebut the presumption. Thus, in response to Plaintiff’s Requests to Admit, defense counsel may assert that the defendant is not waiving any of his or her statutory rights to rebut and oppose admission of the Toxicology Report and the blood alcohol concentration test result it contains.
Further, defense counsel may assert that, in addition to evidentiary facts showing that the blood was drawn within three (3) hours of the accident, evidence establishing chain-of-custody of the blood sample is also needed in order to permit admissibility of the blood alcohol concentration as prima facie evidence without expert testimony under Wis. Stat. § 885.235(1g)(c). This is because the Toxicology Report itself may be inadmissible hearsay to the extent that it states that “Item A (blood), reportedly recovered from [defendant] on [date] at [time], was received at the State Crime Laboratory on [date].”5 Thus, it should be determined whether a signed chain-of-custody record is contained in the local law enforcement agency’s records. If the chain-of- custody is not documented, defense counsel may assert that the Toxicology Report is inadmissible hearsay.
2. The Defendant’s No Contest Plea and Resulting Conviction Are Not Admissions of OWI or Prohibited Blood Alcohol Concentration.
A defendant’s “no contest” plea and resulting conviction are not admissions, and may not be used as admissions against him in a subsequent civil action. A “no contest” plea is permitted under Wis. Stat. § 971.06(1)(c) in criminal cases and does not result in an admission of guilt. Pursuant to Wis. Stat. § 904.10, a “no contest” plea is not admissible in any civil proceeding against the person who made the plea.6 Therefore, a “no contest” plea in a criminal case cannot be used collaterally as an admission in future civil litigation.7 Nor is it an admission of any elements of the offense.8 For this reason, in criminal defense practice, “no contest” pleas should be utilized where there is any possibility of a future civil suit.
Thus, where the defendant pleads “no contest” to the OWI and prohibited alcohol concentration (PAC) charges he was convicted on, he has not admitted those offenses or any of the elements of the offenses for purposes of a subsequent civil suit. This includes any charge modifiers to the OWI count, such as, for example, a heightened alcohol concentration of .20- .249 under Wis. Stat. § 346.65(2)(g)2.
3. Interest Under Wis. Stat. § 628.46 Accrues from Date of Sentencing Only on a “Guilty” Plea.
Where the defendant pleads “guilty” instead of “no contest,” the Court of Appeals has recently held that interest under Wis. Stat. § 628.46 in the civil matter accrues from the date the insured was sentenced by the criminal court. This is because the insured is deemed to have had notice of damages in excess of available insurance for purposes of that statute as of the date of criminal sentencing.9
4. The Defendant’s Deposition Testimony Does Not Establish Intoxication or Prohibited Blood Alcohol Concentration.
The defendant’s deposition testimony about what and when he drank before the accident does not establish as evidentiary fact any prohibited blood alcohol concentration, and at most may be used as a general estimate.10 As such, the defendant’s own testimony is not a basis for requiring or compelling any admission to the plaintiff’s Requests to Admit the Toxicology Report or a blood alcohol concentration above .08 g/100ml. The defendant has the right to rebut and defend against evidence of a prohibited blood alcohol concentration, including by use of expert testimony, as explained above. Many factors such as food consumption and the quantity of alcohol in a mixed drink, as well as body weight, etc., may affect the rate of alcohol absorption into the bloodstream over time, thus affecting the amount of alcohol in the blood at the time of the accident, and these are matters for defense expert testimony.
In sum, defense counsel has a variety of arguments at his or her disposal in the face of a Request to Admit the Toxicology report or blood alcohol concentration. Absent adequate showings by plaintiff’s counsel regarding the statutory requirements, and considering additional issues such as chain-of-custody and circumstances requiring expert testimony, there are a number of reasons why defense counsel may be able to either deny such a request to admit or claim inadequate knowledge, thereby leaving the import of the insured’s intoxication as an open issue for trial.
Sarah “Sally” Fry Bruch is a shareholder with Crivello Carlson, S.C. Her principal practice is in civil litigation in state and federal court, including insurance defense, insurance coverage, and municipal law. Her published articles include: The “Pay and Walk” Clause—An Overview, Wisconsin Civil Trial Journal, Winter 2012; and Anonymous Designation of a Plaintiff: An Overview, Wisconsin Civil Trial Journal, Winter 2011. Sally obtained a published appellate defense decision in favor of the firm’s client in Cambier v. Integrity Mutual Insurance Co., 2007 WI App 200, 305 Wis. 2d 337, 738 N.W. 2d 181 (Review denied). In 2004, she obtained a favorable defense jury verdict of $0 damages in an auto accident suit, Wayne Zierk, et al. v. Atlanta Casualty Co., et al., Kenosha County Case No. 02-CV-933 (2004).
Sally was appointed to the 2011-2013 and 2014- 2016 terms on the Office of Lawyer Regulation (OLR) District 2 Committee by the Wisconsin Supreme Court. From 2010-2013 she served a three-year term on the Board of Directors, Wisconsin Trust Account Foundation (WisTAF). In 2009, she was elected a Fellow of the Litigation Counsel of America (litcounsel.org), a trial lawyer honorary society recognizing effectiveness and accomplishment in litigation, trial work, and ethical reputation.
Sally is a member of the State Bar of Wisconsin, Defense Research Institute (DRI), Wisconsin Defense Counsel, and the Association for Women Lawyers. She was a nominee for State Bar of Wisconsin President-elect in 2010. From 2003-2012, she was a member of the State Bar of Wisconsin’s Diversity and Vice-Chair. Sally developed the 2009 Diversity Counsel Program CLE “Focus on Minority and Women Owned Law Firms,” and the 2008 Diversity Counsel Program CLE “Ethical Issues of Bias.” She coauthored “E-Discovery, Practical Considerations,” presented at the Civil Trial Counsel of Wisconsin (now known as the Wisconsin Defense Counsel), 2008 Spring Conference. In 2006, she served as Subcommittee Chair for the State Bar Convention Diversity Outreach-Gender Equity CLE.
Sally was previously an Assistant District Attorney in Portage County, WI, where she prosecuted criminal felony and misdemeanor cases to successful verdicts before juries. Sally serves as a volunteer Attorney Coach for the State Bar of Wisconsin High School Mock Trial Competition: Pewaukee (2013 to present); Brookfield East (2007-2011).
1 See WIS JI-CIVIL 1008 Intoxication: Chemical Test Results (Reflects Changes in 2003 Wisconsin Act 30).
2 Wis. Stat. § 885.235(1g)(c) states as follows:
In any 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 ..., evidence of the amount of alcohol in the person’s blood at the time in question, as shown by 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 specifiedalcohol 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:
(c) The fact that the analysis shows that the person had an alcohol concentration of 0.08 or more is prima facie evidence that he or she was under the influence of an intoxicant and is prima facie evidence that he or she had an alcohol concentration of 0.08 or more.
3 Wis. Stat § 885.235(4) states as follows:
The provisions of this section relating to the admissibility of chemical tests for alcohol concentration or intoxication or for determining whether a person had a detectable amount of a restricted controlled substance in his or her blood shall not be construed as limiting the introduction of any other competent evidence bearing on the question of whether or not a person was under the influence of an intoxicant, had a detectable amount of a restricted controlled substance in his or her blood, [or] had a specified alcohol concentration....
4 Wis. Stat. § 885.235(3) states as follows:
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 analysisis 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.
5 (Emphasis added).
6 Wis. Stat. § 904.10 states as follows:
Offer to plead guilty; no contest; withdrawn plea of guilty. Evidence of a plea of guilty, later withdrawn, or a plea of no contest, or of an offer to the court or prosecuting attorney to plead guilty or no contest to the crime charged or any other crime, or in civil forfeiture actions, is not admissible in any civil or criminal proceeding against the person who made the plea or offer or one liable for the person’s conduct. Evidence of statements made in court or to the prosecuting attorney in connection with any of the foregoing pleas or offers is not admissible.
7 Kustelski v. Taylor, 2003 WI App 194, 266 Wis. 2d 940, 669 N.W. 2d 780.
9 Dilger v. Metropolitan Property and Casualty Insurance Company, 2015 WI App 54, ___ Wis. 2d ___, 868 N.W.2d 177 (petition for review denied September 9, 2015). The Court of Appeals held in Dilger that the insurer had reasonable proof of non-responsibility only up to the date the insured was sentenced on her “guilty” plea, reasoning that the plea itself could have been withdrawn up until the date and time of sentencing. Id.
10 See State v. Hinz, 121 Wis. 2d 282, 360 N.W.2d 56 (Ct. App. 1984); State v. Vick, 104 Wis. 2d 678, 312 N.W.2d 489 (1981).