Have any trial lawyers out there tried using Daubert to exclude an expert/analyst from testifying with regard to retrograde extrapolation in a DUI trial? Based on the scientific nature of the calculation and the fact that most analysts don't have the required information to conduct an accurate backwards calculation? There are several state supreme courts (TX - Mata, NM, NV and a few others) that have recently determined that without knowledge of type, size of drinks, duration, food consumption, whether the defendant is absorptive, post, etc and other factors, an accurate retrograde extrapolation cannot be performed. Has this been attempted in WI since we adopted Daubert? Thanks in advance for your advice.
I'm not an attorney.
Wisconsin just recently adopted the Daubert standard, so no, I am not aware of any appellate cases which have been decided on this point using the Daubert standard. You might try posting your message on the Wisconsin Association of Criminal Defense Attorneys' listserv. Joining might be worthwhile just to get feedback if you intend to bring such a challenge.
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