Panel Discussion
The State can't Prove the Breath Test Score
at the Time of Driving
Moderator for this panel discussion will be Lawrence Boyd.MR. BOYD: All right. Now, what we're talking about is what I talked about originally this morning really is about retrograde extrapolation. It's the type of case where the supervisor cannot say what your client's blood alcohol concentration was at the time of driving, because they don't have sufficient facts. And all they're going to be able to say in that case is that your client's BAC could have been higher at the time of the driving —— at the time of the jail, it could have been lower, or it could have been the same. Okay.
So, tell us your perspective, Mr. Burrows, on trying a case where retrograde extrapolation is the principal area?
MR. BURROWS: It's 90 percent, one, on jury selection. When you talk to the jury, the judge will normally tell the jury, they've got to prove the breath test score while a person is driving. And then when you're talking to the jury, you've got to make sure —— if you don't cover this, you're not going to win an extrapolation case. As the judge said —— I hope that he said it —— what is the critical time that the breath test score must be proven?
Let them answer the question.
And then you say, Does the beyond a reasonable doubt standard apply to the 08 standard at the time of driving?
Those two issues, you've got to cover on jury selection.
You set it up further.
MR. BOYD: All right. Jerry, can you tell us your perspective on what you think the most important considerations are in trying a case where retrograde extrapolation is the principle issue?
MR. WOOD: Well, I think David just pretty much took my answer. I think it's all in voir dire. And obviously, they are going to be able to —— the officer is going to say, Well, it was just up on the PowerPoint. And you've got to —— you're literally buying the jury. You've got to say, Hey, what happens if the State doesn't present any evidence as to alcohol concentration at the time? What if all they can present or all they can do is get you to speculate as to what that alcohol concentration might have been? Is that proof beyond a reasonable doubt as to alcohol concentration at the time?" Get the jury to say, No, it's not. Get them to say that on voir dire. Get them to say that, If that's all they have, they haven't met their burden of proof. And if they haven't met their burden of proof, they're going to find him not guilty. But get them to say that. Bind them at the time of voir dire. And then you can use it in opening statement, and you can use it on final.
MR. BOYD: Hey, James, how did you condition your jury voir dire to acquit the defendant based on the theory that he was not .08 at the time of driving?
MR. VASILLAS: During voir dire in my case, I was more concerned about the fact that my client had rear—ended a guy on I—75; and it's hard to explain. You know, the guy he hit was going 65; and he was going near 85 or 90. So, I was concentrating more on what could distract you while you're driving in this day and age. So, in fact —— because I knew there were statements in there that my client was taking on his cell phone at the time of the accident. So, I was really focusing, not on extrapolation, I was very concerned about this car accident. Because after all, people hate car wrecks where there's been alcohol involved. I did go in somewhat to, you know, the breath testing when you think about it. But I was really looking for some good old hard drinking, country guys that wouldn't mind, which obviously, I did.
MR. BOYD: All right. How do you condition your jury during voir dire to buy the retrograde extrapolation argument and acquit somebody based on that?
MR. WILDER: Well, one of the things, I think, we need to point out is the safe way we can extrapolate in the sense that your client's giving answers about it. His answers will almost never be enough to get him over. And so when you talk to the technical supervisor, Well, now, you assume this is true and you assume there is true. But if you assume the number of drinks he said was true, it couldn't possibly be that.
And so I think one of the things you have to show to the jury is that it's kind of a half speculation, half not speculation. And I've had cases where the State has tried to introduce evidence that defendants routinely lie on the amount of drinks they had. They have not been successful mostly. Again, they try to get it in; but I think you have to talk to the jury about, "Well, listen, same things —— you have to —— you can't do it on the basis of, well, it could have been one out of three, things look that. Talk about, why do you think one out of three is good enough?
MR. BOYD: Okay. David, tell us about your opening statement considerations in a retrograde extrapolation case, please.
MR. BURROWS: Well, unfortunately, I'm not a big proponent of opening statement. I can't remember the last time I did one, but I may start after hearing Jerry Wood talk. I got burned about five times when I did opening statement. And I end up eating those words. DWIs are different. If you don't know what's coming, you better not talk about it. I got burned a couple of times and I said, I don't know. I'll leave it alone. It's a dangerous area for me. But that's not to say not to do it. It's just I got burned on them.
MR. BOYD: All right. Jerry, you said you did one.
MR. WOOD: Well, I'm a big proponent of them, because I think what you have to establish in any type of DWI trial is to not be disingenuous. And if you're going to present a defense that your client was sober at the time of driving, you might want to tell them, Hey, this breath test machine might be accurate under other circumstances. But tell them what your theory of defense is, and tell them what the evidence is going to show. It's going to show that your guy was sober at the time he was driving, or it could show that they can't prove he was drunk at the time for driving. You tell them that at the opening statement; and then when the evidence does show it, you can turn around again and argue, Hey, they don't have any proof at the time of driving as to what the alcohol concentration was. After they present their case and you cross—examine the technical supervisor, he says, I can't say what his alcohol concentration was. You've gotten that through voir dire. You said it on opening statement. Now, you argue.
MR. BOYD: All right. Dr. Wimbish, what factors at a minimum must the technical supervisor have available to perform a retrograde extrapolation?
DR. WIMBISH: At a minimum, they are the basics —— first three, last three, food consumed. Those are the three primary minimum ingredients that anyone has to have. The other factors which are important are emotional state, fright; that is, how frightened you are of the officer, and what's the stress of the situation under the arrest. Is there release of adrenalin? The answer is "yes" to all of those. The motility or the movement of the gastrointestinal tract and closing of the pyloric sphincter and thus delay in the absorption of alcohol.
But the three minimum that the State can use to make BAC extrapolation are first three, last three, food consumed. Of course, they get into how much was consumed during a specific period of time that allows them to calculate what the probable alcohol concentration would be. Here's one assumption, that they make —— if you're police trained, you're trained to think in a certain way. And I have good friends that I can talk to, and I know exactly what they're going to say if they are trained by the police, that all the alcohol consumed is absorbed completely within 30 minutes, period. That may be on an empty stomach, period. It is not for every drink. It is not the same in all situations, but they will assume that fact. The reason they're trained that way is it allows them to reach peak concentration which still allows BAC extrapolation. That's the purpose of that training. Physiologically, it's not true.
Kurt Dubowski, A.W. Jones, Forney, Harger, all of the premier toxicologists in alcohol are published. On many occasions, the variability will fluctuate depending on at least all the factors I just talked about at a minimum. Time for absorption can be as short as 30 minutes on an empty stomach of aperfectly healthy person, especially if they're slightly dehydrated. That's you mowing the yard on a hot Saturday afternoon and thirsty and go in and drink a beer. You're going to have an effect in a short period of time.
Now, take that same beer in a different setting. Food in your stomach, not dehydrated, it's cold. Just add other physiologic factors and the time to reach its peak value does greatly change just by changing a few simple parameters —— physiological parameters in you. And there's a great deal of difference from time to time, person to person; and every situation is different.
MR. BOYD: What's the least amount of data that you've seen one of the technical supervisors in one of your trials use to try to do a retrograde extrapolation?
DR. WIMBISH: First and last three, that's it.
MR. BOYD: Okay. And what's wrong with the science of that?
DR. WIMBISH: My favorite is a teaching example. Too few premises to a right of a conclusion, and this my phraseology when teaching forensics is the logical phrase is that all birds have two legs, you have two legs; therefore, you are the bird. It's perfectly logical. But there's two too many missing premises, not enough information to arrive at that conclusion. It's faulty logic.
MR. BOYD: What factors to you find the most persuasive in the trials that you've testified in coming from the witness stand?
DR. WIMBISH: Identifying with the jury. If there's anything that I try to talk to the jury is to get them to understand the physiological process of each of the absorption, distribution of alcohol, and get them to identify it with their own life. Alcohol is one of the few drug that the majority of people have some experience in consumption and effects of. So if you can get that jury to identify with everything you're saying and get them to nod their heads just as you're doing, thank you, they are understanding completely the story you're telling. And that's the whole process is identifying with the jury as though —— I view them as students. That's the way I view juries. They're hungry for knowledge.
MR. BOYD: Okay. In your trial, how does cross and what cross of the technical supervisor do you want the lawyers to do in your case that is optimum to set you up to testify about what the possible relationship is between the breath test score and jail at the time of driving?
DR. WIMBISH: The facts of the events, starting from —— if they want all the information in, then we start with the drinking factors and how much they have. And let me go through those same facts that we go through with the technical supervisor and talk about physiological changes that are not true from what he said and give them the reasons why not so that they have the information to decide, and they understand it completely. That's the key factor, rather than believing just what the supervisor said. That's the way he's trained as to a 30—minute extrapolation. So, they understand that's not true.
MR. BOYD: Now, what factors can ordinarily be made by cross—examination through the technical supervisor particularly in this area; and which factors are best made through you as the defense expert? Where will the technical supervisor give us the most, and where do we really have to wrap it up through you?
DR. WIMBISH: Most of them that I've seen will give you the 2100 to 1 ratio, if they understand it at all. They will agree that the instrument assumes that factor to be true for everyone. I've seen them give that particular one. They will give that there is a difference in the absorption of alcohol if there's trauma involved, if there's stress involved. If there's other physiology involved, they will finally agree to that reluctantly. So if you can get them to move slightly, they will move slightly. The others will be firm. The jury will understand the reality of what really happens when you drink alcohol. They understand it. They've done it.
MR. BOYD: Okay. Assuming that I've already sandbagged the technical supervisor and he is conceding that the breath test score at the time of driving may have been less than .08, how much further do I need to go at the trial to win the case on extrapolation?
DR. WIMBISH: Well, that's a good point. You may bite back. He's always good at getting the information he wants and stopping you. If you feel like you have to pound it home, you always run the risk of saying something that keys something in a juror's mind that you didn't intend to. For example, if you say the word "cat," I can assure you that 98 percent of everyone in this audience sees a different cat. So, if you say a particular phrase or words that kicks off something in a juror's mind, you run the risk of him hearing something different. If you're good with the information and you've got the supervisor saying that, I would leave it alone.
MR. BOYD: Okay. You're a pretty good minimalist, David. Why don't you tell us about that, about overdoing your case and getting an overachiever's headache.
MR. BURROWS: If you set it up on jury selection and they don't have extrapolation facts,
point—blank ask the question to the expert, What was the test score at the time of driving?
If they say, I don't know, you say, Thank you, look at the jury, and your case is over. You're just digging yourself a hole if you go past that. It's not going to get any better than that. So, that's what wins for me.
MR. BOYD: Okay. Mike, do you have any different perspective on that as far as extra window dressing?
MR. MCCOLLUM: When you already know that a technical supervisor is going to tell you, It could have been higher, it could have been lower, or it could have been the same.
No. If they haven't extrapolated, don't get into it. If they have extrapolated, then —— you know, then extrapolate BAC based on —— they're estimating what a breath test score would have been at a different time. If they knew that and it's in evidence, although I've objected to it and the Judge still let it in, then I am going to extrapolate BAC in terms of number of grams.
As Gary has said, they've already dug themselves a hole with this short absorption period that they talked about. You extrapolate BAC by the number of grams. But no, he's right. David said, They can't tell you the breath score at the time of driving. Leave it alone. You don't get into extrapolation at all.
MR. BOYD: Okay. Now, my problem is for some reason, it seems like my clients always seem to say in the video, they've had nothing to eat since lunch or even since the previous day. They had the two beers, okay, the magic two beers. They've not had anything to drink since 11 o'clock p.m., and they were pulled over at 2 o'clock a.m.
Later the defendant and his witnesses want to prove up the greasy burger at 1 o'clock a.m., and the two Mojitos at 1:45. Okay. Now, it seems like you're getting in the quicksand now in this trial. And the DA's going to say he's lying to the officer or that he forgot what he ate and had to drink because he was drunk.
What trial tactics do you use to prepare a jury to accept the fact that your client may have been less than accurate when you're trying to go into the absorption phase and beat the retrograde extrapolation in a trial where you had sufficient facts, but it turns out they're false? For one thing, the State's expert is assuming that the person when they said two beers, now, that's a lot. They've got to say that. That wasn't true.
Okay. So, A, first of all, how do you deal with those situations where you've now got the guy's friends coming in and saying, "No. Actually, he did eat, and he had two strong drinks right before he left the bar"?
MR. MCCOLLUM: Well, I think the voir dire part is you have to talk to the jurors about their own experiences. And so you have to talk to them about, you know, Have you said something that wasn't exactly accurate to a policeman when you were stopped? Has the policeman misinterpreted something you said as a threat? In fact, if you think you know you're going to have that problem, you have to talk to the jurors. Because if you talk to the jurors, they'll give you all sorts of different answers about what they've done when they've been stopped for traffic tickets, because that's the only thing they'll ever get to have again. You can't ask the jurors about, you know, what happened on their words; but I'm just saying.
So, I think you have to talk to them about —— you know, along with —— you know, along with, Have you been in an accident that was your fault? They say, Yeah.
And you say, You were sober, right?
Were you nervous when you were talking to the officer?
Of course, I was.
You know, things like that. You have to talk to the jurors about their traffic ticket experience in terms of the information so that they all say, Well, yeah, that makes sense. I did that.
MR. BOYD: Yeah. Have you noticed the police officers that you talk to will always say, Yeah. Two beers is always the answer. And I don't really consider that to be a moral problem or anything. People always say that. They're trying to cover their behinds.
Okay. David, what's your perspective on that? Now, we're going to try to disextrapolate the case in the trial. We're going to come in and say ——
MR. BOYD: I think to beat the time, we're going to have to go to trial. If you kind of tear through the facts of an extrapolation case, it's not going to work. That sounds prefabricated to me. You either have a good extrapolation case or you don't. It's either they don't have the facts, or facts are on the videotape.
Mike, have you ever had to deal with that kind of thing before?
MR. MCCOLLUM: Sure.
MR. BOYD: Do you have any problems with it?
MR. MCCOLLUM: No. If they want to gamble, you know, sometimes they're gambling on a screwy jury. You know, if they want to pay the extra money to gamble, hell, I'll try it. And the way you handle it, like Dave said, How many of you—all know someone who's ever gotten a traffic ticket? And how many of you—all know that person —— you know, when they see those red—and blue's, they kind of hope, Oh, man, keep driving. I'm hoping it's not me. It's not me. Has that ever happened to any of you—all or a friend of yours?
Any of you—all ever had the police officer come up and ask you how fast you were going? You know good well how fast you were going. We all know how fast you were going, because you were trying to get it about eight miles over the posted speed limit, and you figured I wouldn't stop you. And you say, No. I don't know. Of course, it's human nature, isn't it?
That's one way to get the ball rolling in voir dire, and we all do that. But you know, I think that's right. You've got to start off in voir dire getting across the proposition. We hope it's not us, and sometimes we don't admit we know more than we knew. And initially, you know, that's a natural reaction. So, you know, that's one way to lesson the blow. But I think that, you know, if the guy wants to try it and he has a good video and if he's a likable guy, then I'll try it. If he's an unlikable guy, I'll try to talk David into doing it, because he can win one with an unlikable client even if they ——
MR. BOYD: Jerry, have you ever had to resort to that tactic, to disextrapolate the test by putting on witnesses to contradict what your client said on the video?
MR. WOOD: Yeah, it's a lot better to put on witnesses than it is to put on the client. You have to say that in voir dire just like everybody said, not only their ticket experiences, but just the general experience you have when you're stopped by the police. You're nervous and you're frightened and you're not always going to be forthcoming. And if you tell that to a jury on voir dire, again, you're eliminating this attitude that you're somehow being disingenuous or not being up front with them. You're telling them what's coming before it gets there. I'm a big believer in that. and that's about the only way you can kind of cover up this fabrication. But if you have witnesses, it's a lot better than putting your guy on.
MR. BOYD: All right. Abe, how about any tips that you can give the people in the audience about your final argument in an extrapolation case where the State's expert has said, I can't tell you what the alcohol concentration was at the time of driving?
MR. FACTOR: Well, you know, I think you can say this in a lot of different ways; and you can set it up in voir dire. You know, you can say, Ladies and gentlemen, do you think, and I don't know, is proof beyond a reasonable doubt?
MR. BOYD: Okay. David, how about your final argument in an extrapolation case? I know you've got it pretty patented.
MR. BURROWS: Well, I don't know, is certainly not beyond a reasonable doubt; and one out of three, the other theory, is not beyond a reasonable doubt. So, it's simple. That's all there is to it. You know, what's reasonable doubt? It's not one out of three chances or not two out of three.
MR. BOYD: How about Abe? Have you ever had to disextrapolate? Okay. You have a valid extrapolation case where the technical supervisor has extrapolated the breath test. Now, you put on your experts. Tell us your trail tactics as far as getting your expert up —— pure battle of the experts where you're using the same science essentially. You're using a more qualified expert. You're using a Ph.D. toxicologist versus somebody with maybe a BS. Tell us your trial tactics for a battle of the experts with an extrapolation.
MR. FACTOR: Well, I think on the extrapolation thing, you also have to talk about the —— I just call it the impossible scenario. I'm 16, and I happen to weigh 150 pounds. I really didn't have any drinks inside me back then. And I haven't had to try an extrapolation case where my client said, I've had eight drinks in the last hour or even, you know in the last two.
Actually, one of my slides says, Everyone counts drinks. No one ever keeps track of time. And so, I think what you have to say is, Look, technical supervisor, he's an hypothetical guy. He didn't watch him have anything to eat. He's never been to a real test. Because he's a hypothetical guy, he does formulas on paper.
And I say, But you know, this is —— that's why we have real people testify. And then you say, "Look, if the formula makes sense to you —— I said, If it really looks like this guy had eight drinks in him, if you'all know what eight drinks in one hour looks like, then you ought to vote guilty. But you know what, you—all have had eight drinks here. You wouldn't get to eight drinks, and you wouldn't be able to do what my client did.
MR. BOYD: David, battle of the experts. Trial tactic.
MR. BURROWS: Well, that's the easiest part. You know, Dr. Wimbish comes in with his studies. And the technical supervisor says, the Texas Breath Test Manual says, All acholics are in 40 minutes. And that's what they preach across the state. So, if you think their expert is going to say anything different, you're 100 percent wrong. It's in the manual. But if you bring in your own expert, if you go as high as two hours, if you've got a client who said their last drink in 30 minutes an hour before they got in the car, you've got an extrapolation case, even up to —— you know, you've got to figure out how long it took to take the breath test. So, we win the battle of experts. We have a Ph.D. We just need the facts.
MR. BOYD: Mike, your perspective on the battle of the experts.
MR. MCCOLLUM: I can't top it. Get to a question that I can give you something original.
MR. BOYD: Dr. Wimbish, okay, what are your best tactics for cross—examining the technical supervisor in pretrial and busting them on retrograde extrapolation?
DR. WIMBISH: Well, I didn't know I had any tactics, first of all. I'm usually there to follow the lead you guys give me. And if I can take just a minute here to address this issue and answer your question in a moment.
Your expert needs to be in tune with you perfectly. The only two people in this room that I know of that can put me on the witness stand and never ask me a question about a case —— and David does it all the time —— I come to court, and I haven't a clue what he's going to ask me. And I told the DA —— he says, What are you going to testify to, Dr. Wimbish? And I say, I don't know. I'm with David.
And the other one is I can see right now that there's a specific area that I testify. They've got to dial into their case and I come in and that's what I'm going to do for them, just letting me in on a particular case. But if we've not worked together or there's many factors in this particular case, we need really to be together so that I can fit into every premise that you've laid so far. If you don't, I might go off on a different tangent and not be good for you. So, the tactics I'm talking about is simply you and me being in sync. That's the most important thing about that.
MR. BOYD: All right. We've already talked about how much they needed —— how much they had to eat, the time of the drinking spree, the initial drink, final drink, and really what they had to drink.
How do we disaccuse these people of retrograde extrapolation when they have no real data?
DR. WIMBISH: They're so well trained that they're very predictable in what they're going to testify to. They really have not ventured out to do their own research and question what they've been trained. So, knowing their view on this, they can alter the four phrases of alcohol —— the absorption, distribution, metabolism, and elimination or excretion of alcohol. Have not looked into those factors that can affect that, they're going to testify to exactly what's wrong, the first—last drink and food that may or may not affect it.
They don't think food is very important. Lay that to the jury, and then you come in and talk to the jury and let them in their own mind by their own experiences relating to what we can teach them about the physiological and then they can see holes through it. They make all of the decisions. We simply educate.
MR. BOYD: All right. Well, thank you, gentleman.
MR. MCCOLLUM: You didn't ask one question.
MR. BOYD: What was that?
MR. MCCOLLUM: How do you do it when you don't have an expert?
MR. BOYD: Go ahead. Mike is going to address that.
MR. MCCOLLUM: If you don't have an expert, you've got to know the math. And if Gary gives you the key over here and they are locked in on this quick absorption rate, and you can do it yourself. If they give you a metabolic rate and it's a beer an hour, which you'll hear what a person is going to burn off —— and they'll usually do that —— and you take their .15 at 3 o'clock in the morning an you convert it to 150 or whatever the person weighs, how many drinks does he have in him? Don't do it by test scores. Do it by number of drinks in him at that time.
Of course, if he's burning off a beer an hour, he was stopped at 1:15 so that would be two more beers, right? If you can get the beers up, you know, if he was drinking from 6:30 to 9:00, you get this thing up to, you know, a case of beer. If it's a big enough person and it's a .19, a case of beer easy. If it's an accurate test, their expert —— that's what I tell them in the voir dire or in opening statement, accurate test. If it's an accurate test, you have to believe it's an accurate test. You're not going to believe your eyes.
And you argue and see that 24 12—ounce beers, that's over 2 gallons of beer. Let's see. He drank 2 gallons of beer over the six hours. That would be a gallon of wine, let's see, a fifth of 100 proof Wild Turkey, a quart of 80 proof whiskey. If you've got a good video —— that's if it's an accurate alcohol concentration at 3 o'clock in the morning, folks. You would have heard him sloshing around on that video.
If you've got a good video —— and of course —— and even if you were to believe they're accurate, that's still not at the time he was driving. But that's how you —— because they're locked in —— as Gary said, they're locked in on these absorption rates and metabolic rates. They can come back to bite them. But you have to know if you're going to do that, you know, before you ask the question. It's pretty easy to know, too. If you've got a high breath test score, if you've got a guy that weighs a lot and he said he started drinking at 6:00, you know.
THE COURT: All right. Thanks to all the panelists.
(End of panel discussions)