United States v. Tsosie
791 F. Supp. 2d 1099
D.N.M.2011Background
- Tsosie charged with involuntary manslaughter and reckless driving under NM statutes and federal homicide-related charges.
- USA seeks to introduce Nancy Drez as expert on BAC impairment and retrograde extrapolation under Rule 702/703/705 and Daubert.
- Tsosie blood draw at hospital occurred 6:15 a.m. showing BAC of .07; he claimed last drink at 11:00 p.m. prior night.
- Updated Drez report (April 2011) uses 6:15 a.m. draw and concludes BAC was .08–.09 at time of crash via retrograde extrapolation.
- Tsosie moves to bar retrograde extrapolation testimony; Daubert hearing held to assess admissibility and reliability.
- Court holds NM law controls "influence of alcohol"; retrograde extrapolation is admissible and reliable under Rule 702.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NM law permits retrograde extrapolation evidence | Tsosie concedes admissibility under Day; but federal reliability governs. | Retrograde extrapolation not admissible under NM law as to this defendant. | Admissible; NM Day framework aligns with federal Daubert; allowed with caveats. |
| Whether Dr. Drez's retrograde extrapolation meets Rule 702 reliability | Extrapolation based on accepted scientific methods with conservative assumptions. | Insufficient data (meal, exact intake, timing) may render testimony unreliable. | Reliability satisfied; methodology account for unknowns and uses conservative assumptions. |
| Whether Dr. Drez's testimony aligns with NM case law (Day and Hughey) | Experts may rely on reasonable assumptions consistent with NM authority. | Potential deviation from Day’s non-constant elimination curve may matter. | Consistent; NM Day framework supports use of assumptions; not precluded. |
| Whether the use of retrograde extrapolation precludes or alters the evidence at trial under Daubert | Daubert analysis permits relevant, reliable extrapolation; admissible as evidence of impairment. | Retrospective method risks speculative leaps; should be excluded or limited. | Daubert gatekeeping satisfied; testimony not excluded. |
Key Cases Cited
- Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (U.S. Supreme Court 1993) (adopts gatekeeper role for reliability and relevance of expert testimony)
- Gen. Elec. Co. v. Joiner, 522 U.S. 136 (U.S. Supreme Court 1997) (limits on extrapolating beyond data; focus on reliability)
- Norris v. Baxter Healthcare Corp., 397 F.3d 878 (10th Cir. 2005) (two-prong Daubert test; reliability and relevance)
- Wallis v. Carco Carriage Corp., Inc., 124 F.3d 218 (10th Cir. 1997) (retrograde extrapolation allowed when unknowns are accounted for)
- State v. Day, 143 N.M. 359 (N.M. 2008) (permits retrograde extrapolation to prove BAC within three hours; factors may be quantified)
- State v. Hughey, 142 N.M. 83 (N.M. 2007) (approved reliance on reasonable assumptions in retrograde extrapolation)