Nevada high court tosses blood test

It is common, particularly with the rise of "No Refusal Weekends," for blood draws to be conducted long after a motorist has been arrested for suspicion of driving while intoxicated. The results of those blood tests are waved in front of jurors by prosecutors telling those jurors they can convict based solely on a number.

Judges are more than willing to allow the results of these tests into evidence based on the pseudo-scientific exercise of retrograde extrapolation - more commonly knows as throwing a dart at a board.

But this past December, the Nevada Supreme Court threw a monkey wrench into the works when it held that the results of a blood draw taken over two hours after an arrest weren't relevant.

In The State of Nevada v. The Eighth Judicial District Court and the Honorable Stefany Ann Miley, 127 Nev.Adv.Op. 84 (Nev. 2011), Mr. Bobby Armstrong collided with another car, causing serious bodily injury to the other driver. Almost two-and-a-half hours later a blood draw was conducted. According to the test, Mr. Armstrong had an alcohol concentration of .18. Mr. Armstrong moved to suppress the results of the test on the grounds that the blood was drawn outside the state's two-hour window, only one sample was conducted and that retrograde extrapolation was unreliable, irrelevant and unfairly prejudicial.

The trial court ruled that the test results were inadmissible but allowed prosecutors to introduce other evidence of Mr. Armstrong's intoxication. The state's writ of mandamus (thus accounting for the bizarre style of the case) followed.

The Nevada Supreme Court held that retrograde extrapolation was reliable. But the Court also found that the the relevance of the evidence was far outweighed by its prejudicial effect. In coming to its conclusion, the Court looked to the Mata decision in Texas in which the Court of Criminal Appeals laid out a list of factors to be considered when determining the reliability of retrograde extrapolation. These factors included the length of time between the arrest and the test, the number of samples taken and whether the expert had knowledge of the defendant's individual characteristics when guessing calculating the defendant's alcohol concentration at the time of the stop.

In this case the Court was concerned that the blood sample was taken more than two hours after the stop and that the state's expert had very little knowledge of any of Mr. Armstrong's individual characteristics. In fact, the state's expert based much of his testimony on the characteristics of an "average" person, not Mr. Armstrong. But the Court's biggest concern was that only one blood sample was taken - giving just one point of reference.

The Court reasoned that if two blood samples had been taken some time apart, then the results of those tests would tell whether Mr. Armstrong was absorbing or eliminating at the time of the accident. With but one sample, Mr. Armstrong's alcohol concentration could have been higher, lower or the same at the time of the accident as it was at the time of the test.

And in conclusion...

A civil suit filed by a family alleging that benzene in an old San Antonio landfill caused their daughter to develop leukemia may have have implications in drunk driving prosecutions in Texas. The family won a judgment against the city based largely on the testimony of oncologist Dr. Mahendar Patel who testified the child's cancer was the result of her mother's exposure to benzene while pregnant.

Dr. Patel based his opinion on the testimony of the family's other expert witness and on several studies of cancer rates in workers exposed to benzene. He testified that he had never conducted any research on the cancer-causing effects of benzene. The studies upon which he relied were based on workers' exposure to concentrations of benzene more than 200 times the concentration found in the family's yard.

The city claimed Dr. Patel's testimony was conclusory and legally insufficient to support a judgment in several motions for directed verdict after the plaintiffs had rested their case, after the city rested and again after the verdict was rendered (motion for judgment n.o.v.). The city never objected to the admission of the evidence while Dr. Patel testified.

On appeal, the Texas Supreme Court held that a party may complain on appeal that conclusory expert testimony is insufficient to support a judgment even if the party did not object to the admission of the testimony at trial. However, if the objection is that the basis for the expert opinion is unreliable, the failure to object at trial is fatal.

Bare, baseless opinions will not support a judgment even if there is no objection to their admission in evidence. -- City of San Antonio v. Pollock, 284 SW3d 809, 816 (Tex.2009).

The Court went on to say that:

even when some basis is offered for an opinion, if that basis does not, on its face, support the opinion, the opinion is still conclusory. -- 284 SW3d at 817.

The implications for DWI defense are quite clear. If the state's expert offers a conclusory opinion, you have not waived the issue for appeal by failing to object at trial.

Take retrograde extrapolation as an example. The state's expert will take the stand and testify what the defendant's alcohol concentration would have been at the time of driving based solely on a breath or blood test result and the bastardization of the Widmark equation. The state's expert doesn't know what the defendant had to drink, when the defendant drank it, over what period of time the defendant drank it, what the defendant had in her stomach at the time she drank it, what the defendant's weight is, what the defendant's blood-breath partition ratio is or whether the test results are accurate.

The state's expert's opinion may have some basis behind it -- but does that basis support the opinion? In reality, all the state's expert has done was take the breath test result and add .015 for every hour that elapsed between the time of the stop and the time of the breath test. The entire basis for his opinion is the breath test result and he cannot prove that the result was accurate.

A faulty opinion, I conclude.