MADISON, Wis. (AP) — A divided Wisconsin Supreme Court on Tuesday upheld the sixth drunken driving conviction of man who no one actually saw driving a vehicle or even sitting behind the wheel.

The 2007 conviction of Greg Kandutsch was based solely on circumstantial evidence generated from a computer report that came from an electronic monitoring device. The device showed Kandutsch left a house in Rib Mountain and arrived in Wausau, about a 15 minute drive away, in 20 minutes.

When arrested after trying to break into his estranged wife’s Wausau house, his blood alcohol content was .23 percent, more than twice the legal limit.

Kandutsch denied driving drunk, saying he did not become intoxicated until after he drove to his wife’s home. He claims to have drunk $20 worth of beer and whiskey at a bar three blocks from his wife’s home before walking back and breaking in. He argued the electronic monitoring device’s report was inaccurate.

Kandutsch, 51, was convicted in Marathon County circuit court of a felony drunken driving charge and sentenced to six years in prison.

He appealed, arguing the report should not have been accepted into evidence without expert testimony to back up its accuracy and that it amounted to hearsay. The state Appeals Court upheld the conviction.

On a 5-2 decision, the Supreme Court upheld the lower court’s ruling and rejected his argument saying no expert testimony was needed beyond two Department of Corrections employees who said the device is accurate.

“Neither the EMD itself nor the report derived from it is so `unusually complex or esoteric’ that expert testimony was required,” Justice David Prosser wrote for the majority.

The court also rejected Kandutsch’s argument that the report amounted to hearsay.

“A computer-generated report is not hearsay when it is simply the result of an automated process free from human input or intervention,” Prosser wrote.

Chief Justice Shirley Abrahamson and Justice Ann Walsh Bradley dissented, saying the court did not determine whether a report generated by the type of electronic monitoring device in question is accurate enough to be accepted at trial. Abrahamson wrote that the testimony of the two Department of Corrections officers as to the accuracy of the device was not sufficient.

“Expert testimony was necessary in the present case to provide the court, in evaluating this technology for the first time, with the evidence necessary to ensure the reliability of the underlying scientific principles,” Abrahamson wrote.

Assistant Attorney General Steve Means, who prosecuted the case, praised the ruling calling it a common sense decision.

“Law enforcement relies on electronic monitoring every day and it makes sense to let a jury consider the reports that are generated without requiring a scientist or engineer to explain how it works,” Means said in a statement.

Eileen Hirsch, an assistant state public defender who represented Kandutsch, did not immediately return a message seeking comment.

(© Copyright 2011 The Associated Press. All Rights Reserved. This material may not be published, broadcast, rewritten or redistributed.)

Comments (6)
  1. MetroCop says:

    Awesome. I’m glad to see there’s a state that won’t buy into the B.S. “my rights were violated” argument. Now if only we could get MN to toughen up some DWI laws and make sure judges enforce them. We might be onto something.

  2. rb3331 says:

    What do you expect from the GOP dictator state? But really, conviction number 6? MN should be more like Sweden and Norway, 1 DWI and banned for life from driving!

    1. Common Man says:

      You blurt out “…GOP dictator state…” and then purpose a much more draconian form of punishment. We think you may be speaking this way due to some kind of brain washing you received or is something else wrong?

  3. yeah right says:

    banned for life from driving would do what??? You can drive all you want just wouldn’t be legal.. that would solve nothing

    1. Kim says:

      If people knew from the time they got their license tha tthey would loose their license for life it would drastically cut down on the number of offenses.
      The penalties for driving without a license should also be raised.

  4. Foolseverywhere says:

    Gotta love these people that say things like 1 dwi you should lose license for life, or 2 dwi’s you should get life in jail, you people are idiots, how do you expect a person to work and make a living with no license? Drinking and driving is a terrible thing, but alcohol is a huge part of our society and will continue to be that way. The way some of you people compose sentences should be criminal also, “loose” is what you become at the bar Kim, lose is when something is taken away

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