Sunday, January 29, 2012

Erase DUI convictions after five years, says state legislator |

Erase DUI convictions after five years, says state legislator Finally, a possible end to the MADDness as a legislator realizes that the modern-day lynching of people who make one mistake in their lives must end. I want all of those who oppose this bill to send in their names and addresses, so others may dig up your dirt and hopefully expose you for a lifetime of ridicule and shame as well. Looking for a Top DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

Kane County to step up drunken-driving crackdown on Super Bowl Sunday

Kane County to step up drunken-driving crackdown on Super Bowl Sunday It is disgusting what politicians like Kane County States Attorney Joe McMahon are willing to do once in power. Why doesn't he step up and agree with the Chicago Tribune and Sun-Times, and declare us "The Land of Lincoln, Not the Land of Vampires" Looking for a Top DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

Monday, January 23, 2012

DUI Law - Illinois Dismisses Illegal DUI Stop from Anonymous Call

Congratulations goes out to Earl Vergara, NCDD member and Illinois attorney who handled this matter on appeal. In People of Illinois v. Smulik, --- N.E.2d ----, 2012 IL App (2d) 110110, 2012 WL 34367 (Ill.App. 2 Dist.) the police received a call of "a possible DUI with complainant following." The police located the vehicle that fit the description parked in a gas station. The police pulled behind the vehicle, but the officer believed she did not block in the defendant's car. After speaking with defendant, Johnson spoke with the complainant, who had followed defendant to the gas station. The complainant told Johnson that she had seen defendant drinking wine and vodka. The trial court found that a seizure had nevertheless occurred, and that the seizure was unsupported by reasonable suspicion. 

The appellate court affirmed the motion to quash arrest, writing:

“A particular encounter constitutes a seizure for fourth amendment purposes when, considering all the surrounding circumstances, the police conduct would have communicated to a reasonable person that the person was not free to decline the officer's requests or otherwise end the encounter. [Citation.] Additionally, either the police must use physical force or the defendant must submit to the assertion of police authority.” Village of Mundelein v. Minx, 352 Ill.App.3d 216, 219 (2004).

 In City of Highland Park v. Lee, 291 Ill.App.3d 48 (1997), we held that, when a police officer activates his or her emergency lights to curb a vehicle, a reasonable person in the driver's position would not feel free to decline the encounter with the officer. Id. at 54. In Minx we extended the rule to cases such as this one, where, with his or her vehicle's emergency lights activated, a police officer pulls up behind a parked vehicle. Minx, 352 Ill.App.3d at 220; see also Lawson v. State, 707 A.2d 947, 951 (Md.Ct.Spec.App.1998) (“Few, if any, reasonable citizens, while parked, would simply drive away and assume that the police, in turning on the emergency flashers, would be communicating something other than for them to remain.”). When Johnson pulled in behind defendant's vehicle with her own vehicle's emergency lights activated, defendant made no attempt to drive off. He therefore submitted to the encounter and was seized at that point. Minx, 352 Ill.App.3d at 220 (“when [the defendant] noticed the emergency lights, he submitted to them and did not leave”).

Applying the above law to the facts of this case, the court stated:

"At the point at which the seizure occurred, Johnson had no personal knowledge of any facts suggesting that defendant was committing or was about to commit a crime. In Linley, we summarized the general principles that apply when a Terry stop is based on facts not personally known to the officer who effects the stop. We observed:

“An investigatory stop need not be based on personal observations by the officer conducting the stop (or by those officers whose knowledge is imputed to the officer conducting the stop). [Citation.] A stop may also be based on information received from members of the public. [Citation.] However, the informant's tip must bear “ ‘some indicia of reliability’ “ in order to justify the stop. [Citation.] ‘[A] reviewing court should consider the informant's veracity, reliability, and basis of knowledge.’ [Citation.] Whether a tip is sufficient to support a stop is not determined according to any rigid test but rather depends on the totality of the circumstances. [Citation.]

"The nature of the informant is relevant. All other things being equal, information from a concerned citizen is ordinarily considered more credible than a tip from an informant who provides information for payment or other personal gain. [Citation.] Another significant factor in determining the reliability of a tip received from a member of the public is whether, prior to conducting a Terry stop, the officer is aware of facts tending to corroborate the tip. [Citation.] This court has observed that ‘[c]orroboration is especially important when the informant is anonymous [citation] and is even more important when the anonymous tip is given by telephone rather than in person.’ [Citation.] There is authority, however, that a tip conveyed via an emergency telephone number—a 911 call for instance—should not be considered ‘truly anonymous,’ even if the caller does not specifically identify himself or herself. [Citation.] The rationale is that such a caller is likely aware that, because the authorities often record emergency calls and have the means to instantly determine the telephone number from which a call was placed, they may therefore be able to determine the caller's identity. That an informant has placed his or her anonymity at risk may be considered in assessing the reliability of the tip. [Citations.]” Linley, 388 Ill.App.3d at 750–51.

Concluding that the stop was illegal, the court concluded:

"Here the stop was based on a tip received from an informant .FN2 The tip was conveyed to Johnson by a dispatcher; it does not appear that Johnson spoke with the informant until after initiating the Terry stop by parking her police car, with its emergency lights activated, behind defendant's vehicle. Accordingly, only the information relayed by the dispatcher to Johnson is germane to the question of whether the stop was supported by a reasonable suspicion that defendant had committed or was about to commit a crime. What Johnson knew based on the dispatch was that the informant had observed an individual drinking at an establishment called Redstone. The informant thought that the subject of the tip was “drunk,” and she was “concerned about him driving.” The subject was driving a silver Jeep, and the informant, who was following him, advised police of the vehicle's location and license plate number. There is no evidence that the informant provided her name or that she contacted the police through an emergency number. Thus the tip must be treated as an anonymous one, and its reliability hinges on the existence of corroborative details observed by the police. In this regard, the evidence falls short."

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OWI Laws: Wisconsin Conviction For Operation Improper

Today's DAD comes to us thanks to the watchful eyes of Wisconsin Attorney Tracey Wood. The case itself was handled by NCDD member Lauren Stuckert of Regent Andrew Mishlove's office. In the case, the jury convicted the driver of OWI. The officer had observed a white van parked in the bar’s parking lot and a man, later identified as the defendant Herbst, seated in the driver’s seat slumped over the steering wheel, with the engine running. Over objection, the prosecutor was allowed to argue to the jury that even touching the steering wheel constituted 'operation'.
On appeal, the court found that the evidence was sufficient to convict, but that the argument denied the defendant a fair trial. Because prosecutor's often attempt to 'bend' the law's definitions into thier favor, asnd then on appeal argue that the errors were harmless, or cured by a written jury instruction, the opinion is incorporated verbatim: 

"We acknowledge that, in general, counsel has wide latitude in closing argument and that it is within the trial court’s sound discretion to control the content of closing arguments. See State v. Lenarchick, 74 Wis. 2d 425, 457, 247 N.W.2d 80 (1976); State v. Cockrell, 2007 WI App 217, ¶41, 306 Wis. 2d 52, 741 N.W.2d 267. However, “[c]ounsel is not permitted to make statements of the law which are of dubious correctness.” State v. Bougneit, 97 Wis. 2d 687, 699-700, 294 N.W.2d 675 (Ct. App. 1980). Where counsel’s inaccurate statements likely affected the jury’s verdict, reversal is appropriate where the trial court erroneously exercised its discretion. See Lenarchick, 74 Wis. 2d at 457-58.  

"We conclude the trial court improperly exercised its discretion by overruling Herbst’s objection to the City’s erroneous statement of the law that manipulation of the controls of a motor vehicle includes placing hands on the steering wheel. If the City meant to say that turning on the ignition of a motor vehicle and manipulating the steering wheel constitutes “operate” within the meaning of Wis. Stat. § 347.63(3)(b), that is a correct statement of the law. But that is not how the City framed its discussion of the meaning of “operate.” The City plainly intended to convey to the jury that “operate” includes turning on the ignition, or, in the alternative, placing hands on the steering wheel. We know of no case law that stands for this proposition.

"Moreover, in overruling defense counsel’s objection to the City’s inaccurate statement of the law regarding what constitutes “operate,” the trial court appeared to defer to the jury’s understanding of whether simply having hands on a steering wheel is “operating” within the meaning of the statute by stating: “This is final—this is argument, counsel. She’s allowed that latitude. I will allow her to do that. These people are intelligent people. They can make that decision. That’s their job.” (Emphasis added.) It is not clear what the court intended by responding to defense counsel’s objection in this manner. However, it is possible that a reasonable juror, listening to the City’s erroneous statement of the law, defense counsel’s objection, and the court’s response, would be confused as to a juror’s proper role in deciding what constitutes “operate” and whether simple placement of hands on a steering wheel is manipulating or activating the controls of a motor vehicle.  

"Usually, errors of the type committed here may be cured by the court reading the appropriate jury instruction. The court did so here. However, the jury instruction explaining the meaning of “operate,” Wis JI-Criminal 2668, is stated in general terms, consistent with its statutory definition. The instruction itself does not parse out the various ways by which a person may manipulate or activate the controls of a motor vehicle as a way of providing concrete examples of what constitutes “operate.” That is a problem here because the jury was left with the erroneous impression that manipulating the controls of a motor vehicle included turning on the ignition, or pressing down the gas pedal, or—significant here—placing one’s hands on a steering wheel. The City appears to concede this error, never addressing at all in their briefing the issues of the closing argument or the jury instruction relating to “operate.”  

Due to the misstatements of law by the prosecutor, coupled with the judge's apparent tacit approval of it by failing to intervene and sustain the objection, a new trial was ordered. 

Editor's Note: Kudos to the defense attorney for timely objecting, thus preserving the error for appeal!

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Friday, January 13, 2012

DUI Law- Florida Says Drug Stop is Legal

This case comes to DAD from Fort Pierce and Key West Florida Attorney Mike Kessler. (Notice: Beginning in 2012, if you send DAD an appellate decision and your info, if DAD uses it here you will get credit and a link to your site). In May v. State of Florida, the appeals court held that the officer had reasonable suspicion to stop a vehicle where the officer saw a car leave a pharmacy suspected of prescription fraud, followed the car, and saw the occupants pass around a prescription bottle as if each was removing some of the items in the bottle. The police claimed they had observed a brake light violation, but the State stipulated that a stop for such an incident alone would have been invalid. The State then argued the stop was valid based upon the suspected illegal pill-sharing:

"[A]t the suppression hearing the detective testified that from her training and experience, a lot of narcotics violations by hand-to-hand transactions or “sharing of pills” typically occur in the parking lots of pain clinics. She also testified that the pain clinic under investigation was a “cash only” operation, which is the situation with a majority of pain clinics. She further testified that it is common to observe people leaving pain clinics engage in conduct she referred to as “sharing of pills,” in which people “divvy up the proceeds of what they received from the doctor.” She explained that often the drugs obtained by the patient leaving the pain clinic are given to the driver of the vehicle as payment for driving the patient to the clinic. Frequently, the situation is a “sponsorship” arrangement whereby a person in the vehicle supplies the cash to purchase the drugs. In return, for supplying the cash, the sponsor is given some of the drugs. The detective also testified: “But the fact that the pill bottle goes around was suspicious, especially working diversion cases and these types of crimes, people don't share their prescription bottle.”

Even though an objective view of the facts might appear to show only wholly innocent conduct, the court gave great weight to the officer's experience in findsing that the stop was still valid:

"As we observed in Santiago v. State, 941 So. 2d 1277, 1279 (Fla. 4th DCA 2006),

Diverse facts have been recognized as useful in deciding whether reasonable suspicion exists, including: “[t]he time; the day of the week, the location; the physical appearance of the suspect; the behavior of the suspect; the appearance and manner of operation of any vehicle involved; anything incongruous or unusual in the situation as interpreted in the light of the officer's knowledge.”

(quoting State v. Stevens, 354 So. 2d 1244, 1247 (Fla. 4th DCA 1978)). In Santiago we went on to say that it was not necessary that an officer actually observe drugs change hands to establish reasonable suspicion. Instead, an officer may rely on other circumstances, such as “whether the officer can see either drugs or money being transferred, the officer's narcotics experience, the reputation of the location for drug transactions, the extent of the period of surveillance, and the history of previous multiple arrests from that site.” Id. at 1279.

"A police officer may stop a person for the purpose of investigating possible criminal behavior if the officer has reasonable suspicion that the person has committed, is committing, or is about to commit a crime. State v. Davis, 849 So. 2d 398 (Fla. 4th DCA 2003). “In order not to violate a citizen's Fourth Amendment rights, an investigatory stop requires a well-founded, articulable suspicion of criminal activity.” Popple v. State, 626 So. 2d 185 (Fla. 1993). “A founded suspicion is one which has a factual foundation in the circumstances observed by the officer, when those circumstances are interpreted in the light of the officer's knowledge and experience.” Davis, 849 So. 2d at 400 (citing Stevens, 354 So. 2d at 1247 (emphasis added).4

Continuing, the court wrote:

"Our prior statements in Benemerito, Santiago, and Davis lead us to conclude that in determining whether an officer has a reasonable suspicion to conduct an investigatory stop, some deference should be given to the officer's perspective and the officer's training and experience.5 What may appear to be innocent conduct to the average citizen, who is unaware of how drug crimes are committed, may reasonably appear suspicious to an officer. In this case, the officer testified about a pattern of illegal conduct (“sharing of pills”) which the officer learned through observation and training occurs with regularity at or near cash-only pain clinics. “Sharing of pills” is illegal drug activity that includes seemingly innocent behavior to the average citizen (passing a pill bottle to another person). In the context of the facts known to the officer, passing a prescription bottle around in a vehicle is consistent with illegal “sharing of pills.” “Sharing of pills” behavior is a very different illegal drug activity than the hand-to-hand sales transactions involved in Benemerito and Santiago.6 As we said in Santiago, observation of drugs is not necessary in the context of hand-to-hand sales of drugs. In the context of “sharing of pills,” it seems to us that observation of the drugs themselves is likewise not necessary and observation of passing a prescription pill bottle is sufficient."

The court thus affirmed the denial of the motion to suppress.

Editor's note: although 'deference to the police officer is found nowhere in the US Constitution,  the presumption of innocence and the requirement of a search warrant are explicitly written therein.

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Friday, January 06, 2012

DWI Law- Cheap DWI Lawyer's Client Allowed to Vacate Jail Sentence and Plea

What happens when a client comes to you after he has already hired another lawyer, and has already pleaded guilty and been sentenced? Most attorneys will turn that person away, and for good reasons. However, there may be another avenue available. In People v. Rivera, --- N.Y.S.2d ----, 2012 WL 17681 (N.Y.A.D. 1 Dept.), 2012 N.Y. Slip Op. 00043, the defendant hired a second attorney to vacate the plea, and the trial court agreed. On appeal, the court affirmed, writing:

"The record supports the court's conclusion, made after a thorough evidentiary hearing, that defendant did not receive meaningful representation. “In the context of a guilty plea, a defendant has been afforded meaningful representation when he or she receives an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel” ( People v. Ford, 86 N.Y.2d 397, 404 [1995] ).

"Defense counsel failed to conduct any investigation, make any motions, or even view the video of defendant's breathalyzer test before negotiating a plea bargain whereby defendant would plead guilty to the top count of the accusatory instrument. There were lines of defense that were at least worthy of investigation, including matters that could have affected the accuracy of the breathalyzer results. The attorney's testimony established that there were no strategic reasons for these omissions.

"The hearing evidence also established that since defendant had no prior record and no accident occurred, it was extremely unlikely that defendant would receive a jail sentence. Accordingly, defendant received little, if any benefit, by pleading guilty to the top count without ever having received even a minimally accurate assessment of the strength of the People's case."

The appeals court unanimously affirmed the motion to vacate the plea. 

Editor's note: This case should serve as a warning to cheap-priced 'dumptruck' lawyers that fail to perform an adequate investigation prior to disposing of a case, that such conduct might fall below the standards of practice in their community.

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Thursday, January 05, 2012

DWI Law - Woman Convicted of DWI Without Alcotest Loses 'High Heels' Defense

As reported in the New Jersey Law Journal:

With all the attention given to the debut of the high-tech Alcotest, it's easy to forget that drunken driving convictions can still be based on old-fashioned field sobriety tests.

That means a woman was justly convicted, without use of Alcotest results, based on unstable driving and deficient motor skills at a traffic stop that she blamed on a health disorder and on wearing high-heel shoes, the Appellate Division ruled Tuesday in State v. Salkewicz, A-0224-10.

"We agree with the Law Division judge's determination that the proofs concerning defendant's erratic driving and poor performance in the roadside tests were sufficient to establish defendant's guilt beyond a reasonable doubt," Judges Clarkson Fisher Jr. and Linda Baxter said in affirming the conviction.

Barbara Salkewicz was stopped on Oct. 3, 2008, in Manchester Township by Patrolman Adam Emmons, who had observed her repeatedly crossing the center line on Route 70 and driving erratically. She admitted to having had two glasses of wine.

Emmons had her perform sobriety tests, which she failed. She was unable to walk a straight line heel to toe or to stand with her feet together and raise one foot off the ground as directed. Taken to a police station, Salkewicz agreed to an Alcotest, the results of which showed a blood-alcohol content of 0.15 percent.

At her Manchester Township trial, Salkewicz's attorney, Evan Levow, objected to the admission of the Alcotest results because the administrator, Sgt. James Delane, failed to first observe her for a minimum of 20 minutes.

Municipal Court Judge Phillip Miller allowed the results to be admitted. Salkewicz entered a guilty plea conditioned on preserving her right to appeal. Miller agreed to stay the sentence.

Ocean County Superior Court Judge Ronald Hoffman remanded the case, saying Miller should have considered whether he could have convicted Salkewicz on Emmons' observations and Salkewicz's difficulties with the sobriety tests.

At the second trial, the municipal prosecutor, Valter Must, said he could no longer rely on the Alcotest results since he could not guarantee that Delane waited the required 20 minutes.

By then, Manchester had a new judge, Daniel Sahin, who based his decision to convict Salkewicz on a videotape of the traffic stop.

Levow had argued that Salkewicz was unsteady because she was wearing high heels and suffered from Graves disease, an autoimmune disorder, and that she momentarily drove erratically because she was reaching down to pick up something she had dropped.

Salkewicz again appealed and Hoffman upheld the conviction. Must had no authority to suppress the Alcotest results but the videotape showed ample evidence that Salkewicz was under the influence of alcohol, he said.

Hoffman said there was no way to tell whether high heels were to blame, since Salkewicz was wearing long slacks that went all the way to the ground. He noted that a state police expert's report did not state that said Graves disease could cause a person to be unsteady.

On appeal, Fisher and Baxter said that Must was within his rights not to introduce the Alcotest results at the second trial, and whether they were admitted or not made no difference.

"Here, the evidence presented before the municipal court was more than sufficient to establish that defendant was under the influence of alcohol while operating her vehicle."

Fisher and Baxter acknowledged that Salkewicz claimed that she had dropped something and that she couldn't do the tests well because of her high heels and her Graves disease, but they declined to use that to overturn the conviction.

"Although a defendant may proffer an innocent explanation for his or her conduct, that explanation will not exclude a finding of guilt when the evidence is sufficient to leave the fact-finder firmly convinced that the defendant is guilty of the offense charged," they said.

Levow says he will ask the panel to reconsider its decision because it did not have the benefit of being able to review the videotape.

"It's bizarre," Levow, of Levow and Associates in Cherry Hill, says of the ruling. "I'm going to ask for reconsideration because they didn't have all the evidence. They gave no weight to the fact that she has a neurological condition and was wearing high heels."

Senior Assistant Ocean County Prosecutor Samuel Marzarella says the ruling demonstrates that drunken drivers can still be convicted based on visual evidence. "It's part of the statute," he says. "People forget about that."

--- A.3d ----, 2012 WL 17834 (N.J.Super.A.D.)

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Wednesday, January 04, 2012

DWI Appeal - South Dakota Grants New Trial When Attorney Ineffective

In Engesser v. Dooley, --- F.Supp.2d ----, 2011 WL 4625986 (D.S.D.) the defendant was convicted of vehicular homicide. His appeal was denied. His first writ for habeas corpus was denied. His habeas relief in federal court was denied, and then the denial was affirmed on appeal. His second writ of habeas corpus was granted, but then reversed on appeal. His third state writ was denied. He then filed his second federal writ for habeas relief, and the district court in the instant case granted the petition.

The factual predicate of defendant's claim for a successive filing of a federal habeas petition (that he had newly discovered evidence that was not available during the previous filings), was made through the testimony of a new witness, who testified at the writ hearing that the defendant was not driving vehicle at time of crash. This witness, who testified he saw a woman driving vehicle just minutes before fatal crash, had not been contacted about the case until a few weeks prior to federal habeas evidentiary hearing, and his name was not listed as witness to crash or events preceding it.

The second predicate (i.e. a constitutional violation occurred during his case) was that. but for his attorney's ineffective assistance in failing to investigate and call two other eyewitnesses as witnesses to the fatal car accident at defendant's criminal trial for vehicular homicide and vehicular battery, no reasonable factfinder would have found defendant guilty; if the trial attorney had interviewed eyewitnesses and called them as witnesses, their testimony would have directly contradicted state trooper's assertion that defendant was driver of vehicle in accident, and only state court to have considered eyewitnesses' testimony and to weigh testimony against evidence presented at trial found their testimony would have changed the outcome of the trial.

Because of the above, the district court found that sufficient evidence established a violation and granted the petition.

Editor's note: this case represents a wonderful blueprint for how to prove up a successive petition for federal habeas relief. It is also a valuable lesson for attorneys as to their obligation to interview witnesses prior to trial and to call witnesses at trial when necessary.

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Tuesday, January 03, 2012

DUI Appeal - Nevada Says Retrograde Extrapolation Evidence Too Dangerous for Trial

In State of Nevada v. Eighth Judicial District Court, et. al., --- P.3d ----, 2011 WL 6840685 (Nev.), 127 Nev. Adv. Op. 84 the trial court held that the probative value of retrograde extrapolation that was based on single sample of blood taken more than two hours after a collision was substantially outweighed by the danger of unfair prejudice, and thus precluded its admission at trial.

According to the indictment, the defendant (Armstrong) was driving when his vehicle collided with another vehicle, causing substantial bodily harm to the other driver. The collision occurred at approximately 1:30 in the morning. A single blood sample was taken from Armstrong at 3:51 a.m., more than two hours after the collision. That blood sample had an alcohol level of .18. Armstrong filed a pretrial motion to exclude the blood alcohol test result. He argued that his blood was drawn outside the statutory two-hour window provided in NRS 484C.430(1)(c) FN1 and that the test was inadmissible because only one blood sample was obtained. He further argued that the retrograde extrapolation that the State would have to use to determine his blood alcohol level at the time he was driving was unreliable and therefore irrelevant and unfairly prejudicial. The State opposed the motion, arguing that retrograde extrapolation was not required to determine Armstrong's blood alcohol level at the time of the collision because his alcohol level was sufficiently high that a jury could determine that it was above .08 while he was driving, but even if the State were required to do so, any variables in the retrograde extrapolation go to the weight of that evidence rather than its admissibility. The State also argued that the blood alcohol test was admissible to show that Armstrong was driving under the influence of intoxicating liquor. After a lengthy evidentiary hearing involving the conflicting testimony of two expert witnesses, the district court granted Armstrong's motion in part. The district court excluded retrograde extrapolation as a means of determining Armstrong's blood alcohol level at the time he was driving and the numerical result of the blood alcohol test but allowed the State to present more generalized evidence that the blood test showed the presence of alcohol.

"The evidence at issue in this case involves retrograde extrapolation. Retrograde extrapolation is a “mathematical calculation used to estimate a person's blood alcohol level at a particular point in time by working backward from the time the blood [sample] was taken.” Com. v. Senior, 433 Mass. 453, 744 N.E.2d 614, 619 (Mass.2001). The calculation requires information regarding the rates at which alcohol is absorbed and excreted. Those rates can vary based on a number of factors, including: the amount of time between a person's last drink and the blood test, the amount and type of alcohol consumed, the time period over which alcohol was consumed, and personal characteristics such as age, weight, alcohol tolerance, and food intake. See Mata v. State, 46 S.W.3d 902, 915–16 (Tex.Crim.App.2001), overruled on other grounds by Bagheri v. State, 87 S.W.3d 657, 660–61 (Tex.App.2002)."

The State then filed a petition for a writ of mandamus against the judge, seeking to force the judge to admit the retrograde evidence. On appeal, the Supreme Court of Nevada affirmed, finding that even though retrograde extrapolation evidence was relevant, there was a danger of unfair prejudice.  

"Some jurisdictions have determined that the admissibility of retrograde extrapolation depends on whether enough factors affecting the calculation are known and have expressed concerns with calculations that rely solely on average rates of absorption and excretion. For example, in Mata v. State, the Texas Court of Criminal Appeals provided some guidance by explaining three factors courts should use in evaluating the reliability of retrograde extrapolation:

(a) the length of time between the offense and the test(s) administered; (b) the number of tests given and the length of time between each test; and (c) whether, and if so, to what extent, any individual characteristics of the defendant were known to the expert in providing his extrapolation. These characteristics and behaviors might include, but are not limited to, the person's weight and gender, the person's typical drinking pattern and tolerance for alcohol, how much the person had to drink on the day or night in question, what the person drank, the duration of the drinking spree, the time of the last drink, and how much and what the person had to eat either before, during, or after the drinking.

46 S.W.3d 902, 916 (Tex.Crim.App.2001), overruled on other grounds by Bagheri v. State, 87 S.W.Sd 657, 660–61 (Tex.App.2002). The court declined to design an “exact blueprint” for all cases and recognized that not every personal fact about the defendant must be known to construct a reliable extrapolation—otherwise “no valid extrapolation could ever occur without the defendant's cooperation, since a number of facts known only to the defendant are essential to the process.” Id. at 916–17. The court also indicated that the significance of those personal factors is influenced by the number of blood alcohol samples obtained and the time between multiple samples:

If the State had more than one test, each test a reasonable length of time apart, and the first test were conducted within a reasonable time from the time of the offense, then an expert could potentially create a reliable estimate of the defendant's [blood alcohol content] with limited knowledge of personal characteristics and behaviors. In contrast, a single test conducted some time after the offense could result in a reliable extrapolation only if the expert had knowledge of many personal characteristics and behaviors of the defendant. Somewhere in the middle might fall a case in which there was a single test a reasonable length of time from the driving, and two or three personal characteristics of the defendant were known to the expert. We cannot and should not determine today the exact blueprint for reliability in every case. Suffice it to say that the factors must be balanced.

 Id.; see also Burns v. State, 298 S.W.3d 697, 702 (Tex.App.2009) (concluding that expert's testimony was unreliable due to expert's admission that “he knew none of the factors required by Mata when only a single test is available” and because testimony was unreliable, it was irrelevant and “its probative value was greatly outweighed by its prejudicial effect”); accord Com. v. Petrovich, 538 Pa. 369, 648 A.2d 771, 773 (Pa.1994) (upholding trial court's conclusion that retrograde extrapolation expert's testimony was incomplete and elicited “an expert opinion which is necessarily based upon average dissipation rates, average absorption rates, and the alcohol content of the average drink” (internal quotations omitted)). See generally Kimberly S. Keller, Sobering Up Daubert: Recent Issues Arising in Alcohol–Related Expert Testimony, 46 S. Tex. L.Rev. 111, 122–29 (2004) (discussing concern in scientific community over the use of retrograde extrapolation calculations that do not employ factors that affect individual absorption and elimination rates, including (1) the type and amount of food in the stomach, (2) gender, (3) weight, (4) age, (5) mental state, (6) drinking pattern at the relevant time, (7) type and amount of beverage consumed, and (8) elapsed time between the first and last drink taken).

The Court wrote:

"We agree that achieving a reliable retrograde extrapolation calculation requires consideration of a variety of factors. The following factors are relevant to achieving a sufficiently reliable retrograde extrapolation calculation: (1) gender, (2) weight, (3) age, (4) height, (5) mental state, (6) the type and amount of food in the stomach, (7) type and amount of alcohol consumed, (8) when the last alcoholic drink was consumed, (9) drinking pattern at the relevant time, (10) elapsed time between the first and last drink consumed, (11) time elapsed between the last drink consumed and the blood draw, (12) the number of samples taken, (13) the length of time between the offense and the blood draws, (14) the average alcohol absorption rate, and (15) the average elimination rate. We observe, as the Mata court did, that not every personal fact about the defendant must be known to construct a reliable extrapolation, 46 S.W.3d at 916–17, but rather those factors must be balanced."

"[T]he State and Armstrong presented experts who calculated Armstrong's estimated blood alcohol level based primarily on factors attributed to the “average” person and various hypothetical situations. The factors used in those calculations included: Armstrong's admission to the investigating officer at the scene that he drank two beers between 5 p.m. and 10 p .m., records indicating that Armstrong weighed 212 pounds, the time of the accident, the time of the blood draw, and the blood alcohol level in the single sample (.18). There was no evidence presented concerning Armstrong's age or height, the type and amount of food in his stomach, if any, his regular drinking pattern, or his emotional state after the collision.

Concluding, the Court stated:

"Although several of the factors identified above were known, other significant factors were not and, significantly, only one blood draw was obtained. As the Mata court recognized, the significance of personal factors is influenced by the number of blood alcohol tests. “[A] single test conducted some time after the offense could result in a reliable extrapolation only if the expert had knowledge of many personal characteristics and behaviors of the defendant.” Id. at 916. Here, significant personal characteristics, such as the type and amount of food, if any, in Armstrong's stomach—a factor that Armstrong's expert testified was the most important and the State's expert acknowledged significantly affects alcohol absorption—were unknown. And the single blood draw makes it difficult to determine whether Armstrong was absorbing or eliminating alcohol at the time of the blood draw. The admission of retrograde extrapolation evidence when a single blood draw was taken more than two hours after the accident and the extrapolation calculation is insufficiently tethered to individual factors necessary to achieve a reliable calculation potentially invites the jury to determine Armstrong's guilt based on emotion or an improper ground—that the defendant had a high blood alcohol level several hours later—rather than a meaningful evaluation of the evidence. Thus, although relevant, the probative value of the extrapolation evidence could be sufficiently outweighed by this danger of unfair prejudice to preclude its admission.FN5 Under the circumstances presented, we cannot say that the district court manifestly abused or arbitrarily or capriciously exercised its discretion, that is, applied a clearly erroneous interpretation of the law or one not based on reason or contrary to the evidence or established rules of law.

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