446 P.3d 125
Utah Ct. App.2019Background
- Late-night traffic stop: Officer stopped Randy Harvey after observing taillights out; Harvey drove another block, avoided eye contact, and a passenger tried to hide a half-consumed vodka bottle. Officer smelled alcohol and saw a bloodshot, glassy eye.
- Field sobriety testing: Harvey performed HGN (6/6 indicators) and walk-and-turn (6/8 indicators) but passed VGN and additional non-standard tests; prior leg injuries limited his performance on one test and plausibly affected walk-and-turn results.
- Chemical testing: Harvey refused breath testing; blood was drawn under warrant ~2 hours after stop and returned results of .075/.076 (screen) and .081 (confirmation).
- Trial evidence: Officer testified that the average alcohol elimination (burn-off) rate is ~0.015/hour, based on police-academy training; Harvey objected for lack of foundation, court admitted the testimony; jury convicted Harvey of DUI under impairment theories (not on the BAC-at-test prong after partial directed verdict).
- Post-trial proceedings: Harvey moved for new trial arguing the burn-off-rate testimony was improper expert testimony from a lay witness; district court denied the motion; on appeal the Utah Court of Appeals reversed and remanded for new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of officer's burn-off-rate testimony as expert opinion | State: Officer learned burn-off rate in police training and may testify; foundation goes to weight | Harvey: Officer lacked scientific training/education to opine on metabolic elimination rates; insufficient foundation for expert testimony | Court: Erroneously admitted — officer not shown to be qualified as expert on alcohol elimination rates |
| Whether the burn-off testimony is scientific in nature | State: Treatable as common knowledge from training | Harvey: Burn-off rates are scientific, formulaic, and require lab-based expertise or specialized training | Court: Burn-off-rate testimony is scientific and not observable from routine policing/training alone |
| Harmless-error analysis — was admission harmless given other evidence of impairment | State: Other evidence (driving conduct, odor/open container, FST failures, refusal to breath test) was overwhelming so error harmless | Harvey: Other evidence was weak or explained (leg injuries, lack of unsafe driving, passed VGN, balanced exit) and likely influenced jury | Court: Admission was not harmless; other evidence insufficiently strong to eliminate reasonable likelihood the testimony affected verdict |
| Need for new trial | State: No new trial necessary because conviction supported by impairment evidence | Harvey: New trial required due to prejudicial expert testimony admitted without foundation | Court: Vacated conviction and remanded for new trial |
Key Cases Cited
- Negrini v. State, 853 S.W.2d 128 (Tex. Ct. App.) (officer who heard one academy lecture not qualified to give burn-off-rate expert testimony)
- Bradley v. State, 578 P.2d 1267 (Utah) (admission of burn-off-rate testimony from medical examiner)
- Ohotto v. State, 323 P.3d 306 (Or. Ct. App.) (alcohol absorption/elimination testimony is scientific and not derived from routine policing)
- Claybrook v. State, 975 P.2d 1101 (Ariz. Ct. App.) (police officer may give BAC retro-extrapolation if properly certified and possesses superior expertise)
- Commonwealth v. Gonzales, 546 A.2d 26 (Pa.) (police officer qualified as expert on alcohol elimination where he had lab role and specific pharmacology/toxicology education)
- Coffey v. Shiomoto, 345 P.3d 896 (Cal.) (SFSTs are highly accurate for discriminating BAC above/below legal limit)