State v. Christopher J. Durski

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
August 21, 2019
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2018AP1750-CR Cir. Ct. No. 2016CT335

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

CHRISTOPHER J. DURSKI,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Walworth County:
PHILLIP A. KOSS, Judge. Affirmed.

¶1 GUNDRUM, J.1 Christopher Durski appeals from a judgment of
conviction for operating a motor vehicle while intoxicated, fourth offense. He

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2017-18).
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
No. 2018AP1750-CR

claims the court erred in denying his suppression motion and in permitting certain
expert testimony on retrograde extrapolation. We conclude the court did not err,
and we affirm.

Suppression Motion

Background

¶2 The relevant evidence from the hearing on Durski’s suppression
motion is as follows. After being involved in a family dispute in the early
morning hours of October 22, 2016, Durski drove to a nearby motel. Dispatched
to the home where the dispute took place, an investigating officer learned that
Durski had possibly consumed alcohol before departing the residence. The officer
went to the motel where Durski was staying and learned from an employee that
Durski “had checked in a short while earlier.” The officer testified that he made
contact with Durski in his motel room approximately twenty-five to thirty minutes
after the family dispute/disorderly conduct call.

¶3 Durski informed the investigating officer that he had earlier
consumed “[t]hree or four beers and a shot of blackberry brandy.” He also
initially told the officer that “he had not drank or had any intoxicants in his [m]otel
room.” After the officer told Durski he was aware Durski had driven to the motel
following the family dispute and he wanted to conduct field sobriety tests (FSTs)
to make sure Durski was in a sufficient condition to drive, Durski then told the
officer that he had consumed two beers after he arrived at the motel. The officer
asked Durski “what kind of containers they were in, what kind of brand of beer it
was, and where could the containers be located,” so the officer “could confirm
that.”

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No. 2018AP1750-CR

¶4 The investigating officer administered FSTs just outside of Durski’s
motel room, with two other officers also present. Following those tests, the officer
attempted to administer a preliminary breath test (PBT) to Durski but the PBT he
had with him malfunctioned so a second officer went to his squad car to get his
PBT and also attempted to find “12-ounce Bud Lite cans” Durski had described
drinking from after arriving at the motel. The investigating officer testified that
“before making a final arrest decision,” he “wanted to clarify” whether or not
Durski had consumed alcohol after arriving at the motel. During this
approximately five- to ten-minute period of time, the investigating officer
remained with Durski in his motel room and “[tried] to get some clarification on
where the beer cans were, where we would locate them.” Durski told the officer

that they would be in the garbage can outside the door ...
and I was clarifying like the front hotel, in front of the
hotel, and then things got really vague and things started
changing, and then it was one may be in his truck or
outside of his truck or he littered one or one in this garbage
can.

The officer testified that they checked “everything that he had said that was a
possibility, to include littered cans on the road” to see if they could confirm
Durski’s story about having consumed beer after arriving at the motel. The
officers were unable to find the beer cans.

¶5 After the second officer returned with the PBT, Durski submitted to
that test. Around that time, a third officer informed the investigating officer over
the radio that Durski “should be placed under arrest for disorderly conduct”
because of the incident at the house. The investigating officer testified that even
prior to that time, Durski was not free to leave because the officers “were
investigating a number of different things,” however, the investigating officer had
not indicated to Durski that he was under arrest. The officer testified that had

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No. 2018AP1750-CR

Durski satisfactorily completed the FSTs, he would not have been arrested for
OWI. The officer further indicated it also was questionable whether Durski would
have been arrested for OWI if the officers had actually located the “12-ounce Bud
Lite cans” corroborating Durski’s story of having consumed beer after arriving at
the motel. The officer testified that he was in full uniform and armed during his
encounter with Durski, but that at no time did he draw his weapon.

¶6 The circuit court found that Durski was not free to leave while the
investigating officer was questioning him because he was being detained under
reasonable suspicion. The court found it “completely credible that [the officers]
are looking to see if these cans are there,” and if so, that

they may believe there is not probable cause to arrest.

… if he drank two or more cans after getting there, after he
stops driving, they’re not going to arrest. I think if it was
otherwise, they would have just arrested him immediately,
they wouldn’t bother to take these steps to try and
determine it.

The court further found that the investigating officer was “chatty with [Durski].
It’s conversational; it’s not accusatory at this point. They’re really trying to
determine where these cans are, if they exist.” The State conceded and the court
determined that any statements Durski made after he was placed under arrest but
before he was later Mirandized2 should be suppressed. The court implicitly

2
Miranda v. Arizona, 384 U.S. 436 (1966).

4
No. 2018AP1750-CR

denied the request to suppress any statements made by Durski prior to the time he
was formally arrested.3

Discussion

¶7 Durski claims the circuit court erred in denying his motion to
suppress statements he made when the investigating officer questioned him at the
motel prior to issuing him the Miranda warnings. Durski insists the court erred
because “he was already a suspect in [the] disorderly conduct investigation; was
not permitted to leave the scene at the time; and was subjected to express, and
specific, questioning which was reasonably likely to elicit an incriminating
response.”

3
One could argue that Durski has forfeited any challenge to the circuit court’s ruling in
this case. In his suppression motion, Durski asserted that

[a] reasonable person in Mr. Durski’s position, having been not
only placed in handcuffs but actually told he was under arrest,
would consider himself to be “in custody.” Therefore, any
statements made by Mr. Durski after he was placed in custody
and questioned by officers without being advised of his rights
under Miranda must be suppressed.

(Emphasis added.)

At the suppression hearing, Durski asserted that “it’s arguable whether he was in custody
[prior to the other officer telling the investigating officer that he should arrest Durski for
disorderly conduct], but certainly after that he knew that he was arrested.” (Emphasis added.) In
its ruling following testimony and argument at the hearing, the court stated that any statements by
Durski after the officers placed him under arrest for disorderly conduct were “suppressable.”
When the court then asked if any clarifications were needed, Durski declined to seek any
clarification. Thus, it appears as if Durski may have received the ruling he originally sought in
his motion and failed to sufficiently assert that a different ruling—suppressing statements Durski
made prior to formal arrest—was required in light of the testimony at the hearing. However,
because the State fails to argue that Durski forfeited his appellate challenge, we do not affirm on
that basis.

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No. 2018AP1750-CR

¶8 If Durski’s statements resulted from interrogation conducted while
he was “in custody,” then the pre-Miranda statements would be subject to
suppression. See State v. Morgan, 2002 WI App 124, ¶26, 254 Wis. 2d 602, 648
N.W.2d 23. If, however, Durski was merely temporarily detained for investigative
purposes, and was not actually in custody, his statements would not be suppressed
even though Miranda warnings were not administered. See State v. Goetz, 2001
WI App 294, ¶¶10, 17, 249 Wis. 2d 380, 638 N.W.2d 386; State v. Gruen, 218
Wis. 2d 581, 589, 582 N.W.2d 728 (Ct. App. 1998).

¶9 The circuit court’s findings of fact from the suppression hearing will
be upheld so long as they are not clearly erroneous. See State v. Mosher, 221
Wis. 2d 203, 211, 584 N.W.2d 553 (Ct. App. 1998). Whether Durski was in
custody at the relevant time is a legal question we review de novo. See State v.
Buck, 210 Wis. 2d 115, 124, 565 N.W.2d 168 (Ct. App. 1997).

¶10 Just last year, our state supreme court provided an in-depth
explanation of “what ‘in custody’ means”:

The test to determine whether a person is in custody under
Miranda is an objective test. The inquiry is “whether there
is a formal arrest or restraint on freedom of movement of a
degree associated with a formal arrest.” Looking at the
totality of the circumstances, courts will consider whether
“a reasonable person would not feel free to terminate the
interview and leave the scene.”

We consider a variety of factors to determine whether
under the totality of the circumstances a reasonable person
would feel at liberty to terminate an interview and leave.
Such factors include: the degree of restraint; the purpose,
place, and length of the interrogation; and what has been
communicated by police officers. “When considering the
degree of restraint, we consider: whether the suspect is
handcuffed, whether a weapon is drawn, whether a frisk is
performed, the manner in which the suspect is restrained,
whether the suspect is moved to another location, whether

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No. 2018AP1750-CR

questioning took place in a police vehicle, and the number
of officers involved.”

If we determine that a suspect’s freedom of movement is
curtailed such that a reasonable person would not feel free
to leave, we must then consider whether “the relevant
environment presents the same inherently coercive
pressures as the type of station house questioning at issue in
Miranda.” In other words, we must consider whether the
specific circumstances presented a serious danger of
coercion, because the “freedom-of-movement test identifies
only a necessary and not a sufficient condition for Miranda
custody.” Importantly, a noncustodial situation is not
converted to one in which Miranda applies simply because
the environment in which the questioning took place was
coercive. “Any interview of one suspected of a crime by a
police officer will have coercive aspects to it ... [b]ut police
officers are not required to administer Miranda warnings to
everyone whom they question.” Therefore, “Miranda
warnings are not required ‘simply because the questioning
takes place in the station house, or because the questioned
person is one whom the police suspect.’” And finally, “the
initial determination of custody depends on the objective
circumstances of the interrogation, not on the subjective
views harbored by either the interrogating officers or the
person being questioned.”

State v. Bartelt, 2018 WI 16, ¶¶31-33, 379 Wis. 2d 588, 906 N.W.2d 684
(footnote omitted; citations omitted).

¶11 Applying the facts of this case to this guidance from our supreme
court, we agree with the circuit court that Durski was not “in custody” until he was
formally placed under arrest. Until that time, he was not told he was under arrest
and there is no indication his freedom of movement was restrained to a degree
associated with a formal arrest. Based upon the totality of the circumstances, it
would have been obvious to any reasonable person in Durski’s position that he
was being temporarily detained for investigative purposes, and all indications were
that he likely would not have been arrested for OWI if his story about consuming
beer after arriving at the motel could have been corroborated through the

7
No. 2018AP1750-CR

investigation. The investigating officer’s questioning of Durski lasted only a few
minutes and took place in the motel, as opposed to the back of a squad car or a
police department interrogation room, and he was not transported to another
location for questioning. Durski was not handcuffed, no weapons were drawn on
him, and no other show of force was utilized. The court found the tone of the
questioning was “conversational,” and “not accusatory.” While there were three
officers present during the performance of the FSTs, under the totality of the
circumstances, this fact does not raise the detention to the level of “custody.”

¶12 Because we conclude Durski was not in custody prior to formal
arrest, the officers made no error in not Mirandizing him prior to eliciting the pre-
arrest statements he challenges. We affirm the circuit court’s denial of his
suppression motion.

Expert Testimony on Retrograde Extrapolation

¶13 Durski also argues that the circuit court erred in permitting a state
toxicology expert to testify “[without] conducting a proper Daubert[4] hearing,
when Mr. Durski had consumed several alcoholic beverages after the time of
driving.”5 We review a circuit court’s decisions on whether to hold a Daubert
hearing and whether to admit expert testimony at trial for an erroneous exercise of
discretion. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152-53 (1999)
(explaining that circuit courts have the “discretionary authority needed … to avoid

4
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
5
Durski also appears to make numerous conclusory mini-arguments, all of which are
insufficiently developed. Because they are insufficiently developed, we do not address them. See
State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992).

8
No. 2018AP1750-CR

unnecessary ‘reliability’ proceedings in ordinary cases where the reliability of an
expert’s methods is properly taken for granted”); see also United States v. Pena,
586 F.3d 105, 110 (1st Cir. 2009); United States v. Mitchell, 365 F.3d 215, 233
(3rd Cir. 2004); United States v. Alatorre, 222 F.3d 1098, 1102-03 (9th Cir.
2000); United States v. McCluskey, 954 F. Supp. 2d 1224, 1237 (D.N.M. 2013);
Louis Veitton Malletier v. Dooney & Bourke, Inc., 525 F. Supp. 2d 558, 581
(S.D.N.Y. 2007); State v. Giese, 2014 WI App 92, ¶16, 356 Wis. 2d 796, 854
N.W.2d 687 (admission of expert testimony). If the court’s decision “has a
rational basis and was made in accordance with accepted legal standards in view
of the facts,” we will affirm. Giese, 356 Wis. 2d 796, ¶16.

¶14 Durski admits the State’s expert “was qualified” and “had facts to
opine as to what Mr. Durski’s blood alcohol level might have been under normal
retrograde extrapolation circumstances.” He claims, however, that the expert
“simply did not have sufficient facts to calculate Mr. Durski’s blood-alcohol
concentration [BAC] at any point in time before the 4:31 a.m. blood draw,” “all
testimony provided was purely speculative,” and “[t]he blood-alcohol result, with
no supporting facts tying the information to any driving, would have made it
impossible for any other explanation contradicting the evidence seem blatantly
unreasonable.” While we are unclear as to exactly what Durski is trying to say
with this latter point, it appears his overall assertion is that there were insufficient
facts from which the State’s expert could reliably conclude a blood alcohol level
for Durski at the time of driving. We disagree with the point we think Durski is
trying to make and we need look no further than our decision in Giese.

¶15 On appeal prior to trial, Giese challenged the expert opinion on
retrograde extrapolation on the basis that the opinion was “based upon insufficient
facts and data and because the expert relied upon ‘unprovable and improper

9
No. 2018AP1750-CR

assumptions’ in forming her opinion.” Giese, 356 Wis. 2d 796, ¶2. Giese founded
his challenge upon his position that the extrapolation was “based upon a single
blood test at a single point in time.” Id. We determined that the expert’s
extrapolation testimony was admissible under WIS. STAT. § 907.02 “because it
was the product of reliable principles and methods and based upon sufficient facts
and data, which is all that Daubert requires.” Giese, 356 Wis. 2d 796, ¶2. We
specifically determined there were “sufficient facts and data” because

the expert had more to work with here than a single test
result. A number of known facts made the expert’s
assumptions plausible—Giese was found lying in a
roadway at 2:12 a.m.; he said he had crashed his vehicle
three hours earlier, started walking away from the scene,
and fell asleep in the road; there were no bars or restaurants
along the route he walked and no alcohol containers found
in his car or along that route; and his blood sample drawn
an hour or so later had a blood alcohol concentration of .18.

Id., ¶25. We concluded that “the expert had more than just a single test result to
work with; she had a scenario from which it was plausible to infer that Giese’s
alcohol was absorbed before he crashed and that he did not drink after the crash.”
Id., ¶27. We also noted that due to his prior impaired driving convictions, Giese’s
prohibited alcohol level was .02, “far below the lowest possible extrapolated value
in the expert’s calculated range (.221).” Id.

¶16 In the case now before us, Durski’s BAC level related to the blood
sample drawn over three hours after he drove his vehicle was .094. The expert
used reverse extrapolation to calculate Durski’s BAC level at the time of driving
as being “in the range of about” .12 to .17. In making this calculation, the expert
was informed of the “scenario” and factored in known facts—such as the time
between when Durski drove his vehicle (around 1:13 a.m.) and when his blood
was drawn (4:31 a.m.) as well as the fact he is a five-foot-eleven-inch, 200-pound

10
No. 2018AP1750-CR

male—and factored in the assumptions that there was “no alcohol consumed after
driving and no unabsorbed alcohol” in Durski’s blood. The expert calculated that
the normal effect two standard alcoholic drinks—consistent with the second story
Durski gave the officer at the motel, i.e., that he drank two Bud Lights after
arriving at the motel—would have on a male of Durski’s size would be to create a
BAC level of .03. The expert expressed that if these two drinks had been
consumed after driving, “we’d have to subtract that off from each end of the [.12
to .17] range.” The expert indicated, based upon the facts of when Durski drove
the vehicle and when his blood sample was taken, and assuming that he consumed
two drinks after driving, that “the low” for Durski’s BAC level at the time of
driving would have been “about .09” and the high “about .14.” Like Giese, due to
prior OWI-related convictions, Durski’s prohibited alcohol level was .02, “far
below the lowest possible extrapolated value in the expert’s calculated range.”

¶17 According to the testimony of the investigating officer, Durski first
told him at the motel that he had had nothing to drink after arriving there. The
officer’s further, undisputed, testimony was that despite their best efforts the
officers could not locate any Bud Light beer cans in the areas around the motel
where Durski claimed to have placed them. These facts provide strong support for
the accuracy of the expert’s assumption that Durski had consumed all of the
alcohol in his system prior to driving. Furthermore, while Durski provided a
different story as to when and how much he drank, Patricia Bongiorno and her
adult son, who are related to Durski, testified that Bongiorno and Durski had
consumed substantial amounts of alcohol—beer and blackberry brandy—for hours
together right up until approximately 1 a.m.—right before the family dispute
occurred, the police were called, and Durski fled the home.

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No. 2018AP1750-CR

¶18 Ultimately, whether Durski in fact consumed alcohol after driving,
and if so, how much, was for the jury to determine. Based upon the evidence
presented, the jury could easily have concluded that Durski had consumed
substantial amounts of alcohol prior to driving and none after. As in Giese, the
expert here had more to work with “than just a single test result.” He was
informed of the time of driving, the time of the blood draw, and Durski’s gender,
height, and weight. He also factored in the plausible assumption that Durski
consumed no alcohol after driving. From this, the expert was able to provide a
reliable retrograde extrapolation to calculate the range of Durski’s BAC at the time
of driving: .12 to .17. The expert further calculated and considered the impact of
the less plausible assumption that Durski consumed two beers after driving. As
stated, his related extrapolation of .09 to .14 still placed Durski well above the .02
limit that he, like Giese, was afforded based upon his prior record of OWI-related
convictions.

¶19 Durski’s real grumble in this case appears to be that the jury
apparently did not believe his testimony that he “just slammed three beers and
couple chugs of the blackberry brandy” between when he would have arrived at

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No. 2018AP1750-CR

the motel and when the investigating officer first made contact with him there.6
His counsel at trial apparently also did not have much confidence in the likelihood
the jury would believe his testimony, in that counsel never asked the State’s expert
the most obvious of questions—“If Durski had in fact ‘slammed three beers’ and
had a ‘couple chugs of the blackberry brandy’ after arriving at the motel [shortly
after 1:13 a.m.]7 and before the officer made contact with him [around 1:45 to
2 a.m.],8 how would that affect your calculations as to his BAC level at the time of
driving?”

¶20 Durski complains that “pursuant to his account, [he] definitively
consumed 4-6 alcoholic drinks in significantly under an hour. The retrograde

6
Or, the jury may have believed this but still believed he had consumed enough alcohol
prior to driving, such that his BAC level was nonetheless still above .02 when driving. For
example, even if the jury believed that Durski consumed four to six alcoholic drinks after
driving—the best possible position for Durski—it still would not have “saved” him. The expert
testified that the effect of “one standard drink” on a male Durski’s size “would give a theoretical
max affect of .016” BAC. The expert further indicated that if a person had a drink after driving,
“we’d have to subtract that off from each end of the range,” so here that would have to be
subtracted off of the .12 to .17 BAC range the expert opined that Durski had at the time of
driving. Although the expert stated that the effect of two standard drinks “is roughly .03,” as
opposed to .032 (.016 plus .016), using the best possible position for Durski that each drink had a
“max affect of .016” and that he consumed six drinks after driving, those six drinks still only
contributed .096 (six drinks times .016 per drink) of the .12 to .17 BAC level. Using the lowest
level of this range, .12, the evidence under the very best possible position for Durski still showed
that he would have had approximately .024 (.12 minus .096) BAC in his blood at the time of
driving, above his .02 legal limit.
7
The testimony at trial was that the motel was less than a mile from the house from
which Durski had driven.
8
While the investigating officer testified at the suppression hearing that he made contact
with Durski at the motel twenty-five to thirty minutes after he was initially dispatched to the
scene, he testified at trial that it was “about 45 minutes.”

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No. 2018AP1750-CR

extrapolation, however, failed to sufficiently reflect this.”9 (Emphasis added.)
There is of course a reason why the expert’s extrapolation “failed to sufficiently
reflect this,” and that is because Durski never asked the expert—who was on the
stand and performing calculations about other hypothetical alcohol-consumption
questions—what such extrapolation would show if Durski had in fact “consumed
4-6 alcoholic drinks” after driving. The State’s burden at trial was to prove its
case, not Durski’s, and thus it was not the State’s responsibility to ask a
hypothetical question about a scenario the State did not believe occurred. Indeed,
Durski’s testimony that he “just slammed three beers and couple chugs of the
blackberry brandy” when he got to the motel was not even presented until after the
State’s expert had testified.

¶21 In Giese, we approvingly noted the decision of another court that
stated “concerns [about the reliability of retrograde extrapolation] relate to the
proper weight to be afforded the evidence, not whether the evidence is admissible
in the first place.” Giese, 356 Wis. 2d 796, ¶28 (citation omitted). We further
added that

Giese remains free to challenge the accuracy of the expert’s
assumptions. He may, for instance, propose competing
scenarios—e.g., that Giese drank all the alcohol soon
before driving. Or that he began drinking alcohol, or
continued drinking, after the crash. In our adversary
system, “[j]uries resolve factual disputes” like those. Giese
still has the chance to undermine the assumptions that
support the expert’s opinion by introducing evidence or
arguing in favor of competing inferences from the known

9
One of the shortcomings of Durski’s brief on appeal is that it is written as if Durski’s
testimony that he “just slammed three beers and couple chugs of the blackberry brandy” was
actually a fact. There is absolutely no reason whatsoever to conclude the jury believed this
testimony.

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No. 2018AP1750-CR

facts. But the expert’s opinion is admissible under
Daubert.

Giese, 356 Wis. 2d 796, ¶28 (citation omitted). The same holds for this case.
Durski was free to present all the evidence he could regarding his assertion that he
consumed substantial amounts of alcohol after he arrived at the motel. Indeed, he
provided his own emphatic testimony to that effect. How much alcohol Durski
drank prior to driving and when, and whether he drank alcohol after driving to the
motel—and if so, how much—were questions of fact for the jury, questions which
the jury apparently did not answer in Durski’s favor. He also was free to
“challenge the accuracy of the expert’s assumptions” and “propose competing
scenarios” including his own alleged scenario—that he began drinking after he
arrived at the motel and consumed four to six alcoholic drinks in a short amount of
time after arriving there—which latter scenario, as we noted, Durski did not
present to the expert, despite its obvious potential value. See id.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)4.

15