Supreme Court Upholds Use of Electronic Monitoring Evidence in Drunk Driving Case

MADISON – On July 19, 2011, the Wisconsin Supreme Court affirmed the conviction of Gregg Kandutsch for operating a motor vehicle while under the influence of an intoxicant, fifth and subsequent offense, in violation of Wis. Stat. § 346.63(1)(a) (2007-08). Kandutsch was originally convicted by the Marathon County Circuit Court for the offense, which occurred on June 19, 2006.

The evidence used to convict Kandutsch included a computer printout from an electronic monitoring bracelet that he was required to wear as a condition of supervision relating to a prior offense. This printout showed that Kandutsch left his home at 10:03 p.m. on June 19, 2006. Kandutsch was arrested later that night, shortly after 10:23 p.m., at the home of his estranged wife, and was determined to be intoxicated at that time. A car driven by Kandutsch was found near the scene, but no witness observed Kandutsch operating the car. Kandutsch claimed that he had not driven to his wife's house while intoxicated but, instead, had left his home sober around 9:00 p.m. on the night in question, drove to his wife's house, parked the car, walked to a local tavern, consumed several drinks and then walked back to the site of his arrest. The State contended that the report from the electronic monitoring system refuted Kandutsch's version of events and showed that he was operating the car between 10:03 and 10:23 p.m. when he was, admittedly, intoxicated.

In affirming the conviction, the Supreme Court held that expert testimony was not required to introduce reports from the electronic monitoring system because the technology used is not so complex that it falls outside the understanding of a jury. The Court further held that electronic monitoring reports are not considered hearsay evidence, because the reports are generated by an electronic process rather than a human being.

Attorney General J.B. Van Hollen remarked, “For many years, electronic monitoring has been an important tool for monitoring individuals on parole and probation. Today's decision reaches the common-sense result that electronic monitoring is reliable and trustworthy and does not need to be explained in scientific terms before a jury can rely upon it.”

A copy of the decision in State v. Kandutsch, 2011 WI 78, can be found at the following link:

http://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=68084

Assistant Attorney General Steven P. Means represented the State before the Supreme Court and Court of Appeals. The Marathon County District Attorney's office represented the State before the Circuit Court.