Mata v. State

MATA, Appellant, Raul

v. Texas, Appellee.

The STATE

No. 04-94-00099-CR. Texas, Appeals

Court

San Antonio.

Nov. Scharmen, Antonio, Ap- for

George San pellant. Moore, Atty.,

Angela Crim. Dist. Asst. Antonio, Appellee. San HARDBERGER, PHIL Chief Sitting: STONE, CATHERINE Justice Justice CADENA, C. Chief Justice CARLOS (Retired).

PER CURIAM. Mata, found Raul jury appellant, A In six guilty driving while intoxicated. (1) error, challenges: Mata points failure the testi- suppress court’s trial mony George McDougall regarding range of Mata’s intoxication because the 2 reliable;

testimony scientifically was not Kimbrough. Charles We overrule both (2) points. the trial court’s denial of Mata’s chal- (3) dire; lenges during for cause voir asserts, Mata and the does State requested the trial court’s denial of Mata’s deny, that he used all of his peremptory

jury overruling instruction and the and, challenges because court denied objection charge. Mata’s to the We affirm strikes, request his for two additional judgment. the trial court’s accept was forced to as members of the

jury Hope Vega Kimbrough. and Charles McDougall’s Testimony Vega objectionable Mata contends was be- cause she had police relatives who were points Mata’s first two of error officers and she that she would indicated challenge the denial of his motion to sup give the benefit of the doubt to the State. press testimony George McDougall says objectionable Mata Kimbrough was regarding the range of Mata’s blood alco because he if a indicated that (BAC) hol concentration at the time he higher “blew” a of .10 or one hour driving. Specifically, challenges Mata arrested, after being he would automatical- reliability of McDougall’s testimony ly without guilty find that of DWI that related the result of Mata’s breath requiring that the breath test result be driving.1 test back to the time when he was related back to the time of the offense State, court, therefore, is, sitting Hartman v. the time of this the arrest. banc, rejected necessary en a similar that we determine whether the challenge to the testimony trial court Mata’s expert erroneously of the same witness in overruled (Tex. challenges Vega for cause to and Kim- another DWI case. S.W.3d filed). Antonio, 1999, brough. App. pet. We — San noted: Hope Vega A. Given impeccable qualifica- argues Vega’s Mata answers tions, including personal extensive ob- questions indicated she had servations of the alcohol guilt doubts or inno Mata’s process, elimination and the limits which cence she would such doubt in resolve McDougall placed opinion, on his we find favor of the him guilty State and find the trial court did not abuse its discre- po because several of her relatives were in admitting testimony. tion Once lice Vega’s give officers. refusal to Mata found, the trial any court so further the benefit of reasonable doubt would veracity McDougall’s doubts as to the clearly be a refusal follow the law opinions were for the trier of fact to challenge ground would be a for for weigh its deliberations. cause. Ann. art. Tex.Code Crim. Proc. adopt

Id. reasoning We Hartman 35.16(c)(2) (Vernon 1989). Based on points and overrule Mata’s first two however, Vega’s testimony, hold we cannot error.2 trial judge abused his discretion overruling challenge for We cause.

Challenges to VeniRe MembeRS that, considering believe her entire testi By points argues dire, 3 and Mata that the mony judge on voir the trial trial court committed error justified reversible in finding that such did overruling challenges for cause to not reflect a set bias such as would dis venire, Hope Vega qualify members of the her. dissenting opinion extensively Although dissenting opinion

1. The details is well-re- testimony, repeat reasoned, this so we do not it here. searched and we do not find it agree analysis We with the dissent's that this necessary to revisit the debate. Hartman properly preserved appellate issue review. prove that defen- Mata, sufficient Vega said arrested was questioned When driving. presumes law that a was intoxicated when realized that the dant she innocent presumed to defendant is unjustified completely Mata is not “gets the benefit of means that Kimbrough’s answers asserting that proof doubt because the burden indicate an by Mata’s counsel questions if she still felt on the State.” When asked unwillingness requirement to the follow give she the State the benefit that would that prove must statute that the State the answered, “Well, doubt, no ... the she motor vehi- was a operating the defendant if innocent or not.” depends on he was time when highway a a cle on public asked, you if had She was then “And Kim- questioning of intoxicated. But was doubt, maybe you say ... I will ... would judge suffi- brough by produced the trial him you with the or find side State would support contrary to con- cient evidence answered, “No, I would guilty?” not She clusion. the still side with State.” it Kimbrough first that judge The told prosecutor if she The then asked would that the important that he understand was that “keep” prosecutor] proving to [the case, proving its the burden State had beyond a reasonable doubt [sic] burden and that making prose- [the and not less for they get fact that [S]imply ... the just prosecutor] called cutor] [the because doesn’t in- test] result particular [breath to the stand?” Her answer police officer dicate, necessarily, defendant “yes” was ‘Yes.” She also answered when guilty driving was while intoxicated asked if she could “follow law the place question unless the time judge gives” her. prove you. to that to State has able judge pointed The out that when she youDo understand that? was first asked about the State’s burden of ‘Yes, answered, I do.” Kimbrough sir. proof being able to she follow law law,” but said would able “to follow to able follow He then said “would be said, had first “I think so.” He then instructions, legal instruc- the court’s asked, you do you “What mean when [sic] determining guilt tions of the court said, was, “Well, T think so?’ Her answer or innocence of the defendant.” yes.” to Kimbrough’s answer We believe directly if When asked she would re- questions court’s quire its of proof the State meet burden to justify sufficient court’s instructions are answered, law, Vega “yes.” follow judge’s concerning the ab- conclusion trial judge heard the answers and was bias, and Kim- prejudice, sence Vega able to manner in which observe the trial brough’s willingness follow the answered and note her demeanor and We cannot hold court’s instructions. actions, body obviously and he concluded in so hold- judge abused his discretion of her to a that some answers were due ing. ques- understanding lack a clear of the say finding tions. that in so We cannot Objections Charge abused his discretion. points, Mata com In his last two give trial court’s refusal plains Kimbrough B. Charles overruling requested jury instruction and challenge Kimbrough as objection charge, given, that Kim- based on Mata’s contention burden of the State’s erroneously reduced brough require would not State to proof. while prove that Mata was intoxicated III instructed charge driving, proof Paragraph felt of intoxication but evi- jury they found from the hour or more after the defendant doubt, beyond higher dence a reasonable that on hol concentration 0.10 or in his question body. or about the date in in Bexar defendant,

County, the charge The court’s defined “intoxi- Mata, intoxicated, Raul so and while cation,” statute, (1) does the terms of intoxicated, or operate did drive a motor having not normal use of his vehicle, in a will public place, you then physical mental or faculties reason of guilty charged. find defendant the introduction body, into his (2) having an alcohol concentration of 0.10 In Paragraph charge, jury IV of the charge’s or more. The instruction that the was instructed that defendant to find jury required beyond a reason- intoxicated, if he guilty was not even if Mata able doubt that was “intoxicated” they beyond a believed reasonable doubt driving way when in no reduced the operated that he a motor at the' vehicle proof. jury State’s burden of The was place in question. charge time and The that, Mata, told plainly order to convict added: beyond they must find a reasonable doubt Therefore, you if that find the defendant operating that he was a motor vehicle on a was place not intoxicated at the time and public highway the use of while normal his or question, you if have a reasonable physical mental or alcohol- faculties was thereof, you doubt find defen- will the impaired, having or while an alcohol con- guilty. dant not centration of 0.10 or more. Neither the complains the charge Mata that not does requires statute nor law that the case “pin the point down” “relevant in time jury concerning type court instruct the the which requires the statute of the State’s produce. of evidence which the State must is, proof, in actu- that while defendant was only requirement The is that the State al, physical control of motor vehicle.” produce jury evidence convinces the says Mata the charge defective because beyond guilt of defendant’s a reasonable it require does not that the relate State presents Mata point arguing doubt. no back the breath test scores with metabo- support that the does not evidence the lism proving beyond facts a reasonable verdict. doubt that defendant was intoxicated Therefore, alleged in the Mata complaint. Conclusion says, charge erroneously the reduces judgment of the is af- trial court of proof. State’s burden firmed. requested special Mata’s instruction . would jury they instruct the must be Dissenting Opinion by: C. CARLOS convinced, beyond a reasonable doubt (Retired). CADENA, Chief Justice “that ... can be an inference made CADENA, C. Chief Justice CARLOS the results the chemical test that the (Retired), dissenting. higher defendant had a 0.10% alcohol body agree concentration at the time I trial not err in [sic] court did physical denying appellant’s he was in actual control of a mo- for cause challenges dire, during tor voir requested charge refusing appellant’s vehicle.” re- instruction, jury they quested jury overruling instruct the that if did not find “such beyond appellant’s objections jury charge. an inference reasonable doubt, However, they find I did not that the State am convinced that trial failing had to sup- shown the alcohol concentration court committed error body press challenged testimony George defendant’s at time he driv- doubt,”’ ing, appel- ‘beyond they McDougall range reasonable (BAC) at guilty must the defendant not of driv- blood concentration find lant’s motor vehi- ing having operating intoxicated an alco- the time he was while while (Much But the offense. time of testimony in the record lant’s BAC ele. mistaken when it asserts the time he the State appellant’s refers to BAC at known to trial did make appellant I of arrest will use the time was arrested. admis- concerning the judge complaint dissent, regard- all in this since discussion which he testimony sion prior to ing appellant’s BAC made Appellant in this court. challenges elapsed to the time which be- test refers sought court that clear to the trial the time of tween the time of arrest and testimony re- McDougall’s suppression There is subsequent breath test. than two BAC more lating appellant’s testimony concerning the test. before the breath hours not here assert stopped, does intervening the time that the time between testimony at the At conclusion arrest stopped time of his appel- hearing suppress, the motion to significant, although testimony suppress the trial court lant moved arresting appel- had shows that officer appellant’s McDougall’s sobriety tests perform lant four roadside offense was more at the time of the BAC stopped appellant the time he between told counsel Appellant’s than .10. I the time of the arrest. will assume testimony should court that references completely it was suppressed because justifiably time was arrested can of the in the absence evidence unreliable interpreted appellant’s to referring and elim- appellant rate at which absorbed operating BAC he was motor when Counsel told the court that inated alcohol. assumption If this is unwarrant- vehicle. McDougall’s testimony was inadmissible ed, concerning there then is evidence appellant’s the absence evidence appellant’s driving, behavior, when he was condition drinking weight, physiology. is simply means there no evi- his counsel concluded appellant’s When showing appellant was operat- dence motion, the support of the argument ing motor at a time when his vehicle court, announced having previously trial Further, through- BAC was least 0.10%. argument by not wish to hear did pre- I will the zero opinion out this omit that, State, relying on the testimo- said ceding point omit the the decimal and will State, denying he was ny presented symbol following the num- percentage last points.” motion “on all appellant’s identifying eral used the BAC. There- merits, when the At the trial fore, description of such BAC terms testify McDougall to have attempted State as, example, interpreted for should be appellant’s BAC at the time to 0.12%.) aas BAC of offense, permitted con- appellant was for stating my the i’easons dis- Before a of the witness voir dire examination duct sent, necessary think it to show that I jury The jury. presence outside the concerning appellant’s complaint McDou- while from the courtroom was removed testimony before gall’s properly us. McDougall concern- appellant questioned his At the conclusion of may ing opinion. we not contends that State examination, appellant argued concerning dire appellant’s complaint voir consider a sufficient did not have suppress the that the witness the trial court’s failure to concerning appellant’s opinion for his this com- basis testimony of because the offense because court. BAC at the presented not to the trial plaint was “variables,” including many appel- are so correctly points out that there The State (the time peak sup- appellant’s whether suppress sought lant’s motion in appel- concerning re- the alcohol concentration testimony when pression of highest point) oc- test, its points his lant’s blood reached the breath while sult of test; and the or after curred before the admission complain error here more than concerning “range appellant’s [of BAC]” appel- McDougall’s two hours before the test “is so early broad that court enough enable the to under jury appellant doesn’t tell the stand what anything about” wanted a time judge position when the was in appellant. to do Counsel that “under insisted something McDougall’s about testimony. rules” had no sufficient ba- 33.1(a) Appellant required did that Rule sis for any testimony about him preserve to do to complaint for range. Appellant willing to concede consideration this Lankston v. Court. qualified to “service State, 907, (Tex.Crim.App. 827 S.W.2d those machines” “talk and to about the 1992). This conclusion finds additional average person many people support State, 517, in Mason v. S.W.2d has drinking observed taking 518 (TexApp. [1st Dist.] test,” but insisted that — Houston the witness lacks ref'd), pet. court, where the after rejecting sufficient information to of a range talk argument plea the State’s of mis- specifically applicable to appellant. joinder only by of offenses can be raised court was going trial said he indictment, motion quash held that allow testimony, and ap- when appellant preserved plea had of mis- “ruled,” him pellant asked if he had joinder appellate timely review answered, court objection.” “I overrule objection oral to such misjoinder. According Tex.R.App. 33.1(a), P. Appellant’s points complaining of the ad- complaint preserved for appellate review mission McDougall’s testimony if a party presents to the trial court “a properly before us. timely motion, ... stating specific complain Since does grounds ruling” for the he desires the admission in evidence of the result of the court to make and ruling obtains a on the we need not evi- consider motion. required All is denial of a dence of the Intox- function presented motion to the trial court so that ilyzer, the of the officer ad- qualifications the court opportunity pre- ministering or the the manner vent error. which performed.1 the was According test The appellant object- record shows that State, 568, to Kelly v. 824 S.W.2d sought ed to and suppression of McDou- (Tex.Crim.App.1992), we need consider gall’s opinion testimony concerning appel- only presented evidence pres- outside the lant’s BAC more than two hours before the ence of jury the the concerning admissibili- test, and the why told trial court ty he was of McDougall’s testimony relating to his entitled to that ruling. This was opinion done of at time of BAC courts, Generally, including (It 1. agree the Texas with it. is not clear whether the courts, have shown no reluctance admit- judicial Court took notice last of this conclu- tests, ting evidence the results of breath sion). of the None articles from which the regardless Ap- device which was used. quoted opinion Court in its mentioned the parently, significantly courts were im- Harger Apparently, Drunkometer. no Texas pressed by question the fact that the device in thought important point Court ever out adopted had been for use law enforcement that, eventually, the Drunkometer's use was State, agencies. McKay In v. 155 Tex.Crim. presence limited to the detection of the (Tex.Crim.App.1950), 235 S.W.2d 173 alcohol and its use as indicator amount judicial the Court accuracy took notice of alcohol concentration in the blood was Drunkometer, Harger although Harger, discontinued. fact that the de- expert State's testified that scientists disa- device, veloper of the that simulta- admitted greed accuracy on the of the machine. neous blood tests and Drunkometer tests re- holding disagreement such was of no escaped vealed errors of as much also as 32% Court, consequence, judicially after notic- Erwin, judicial notice. R. Drunk ing although that the earth is many round Defense of Cases, Driving 23.03. Nor have the courts (the "persons,” Court said not "scien- paid tists”) flat, significant attention to fact that still believed it was added that advanced, development theoiy of new underlines might whatever scientific devices shortcomings previously least scientist found one could be to dis- those in use. by the BAC as revealed testimony Appellant’s relevant the offense. clue gives test McDougall at the hear- breath testimony when he driv- two hours earlier during ing suppress on the motion say appellant cannot ing. McDougall appellant voir dire examination the his offense, time of the at the was intoxicated at the trial on the merits. now,” know because, he doesn’t “right is clear [It was arrested. appellant when HEARING ON MOTION subsequent TO SUPPRESS prior BAC some- concerning appellant’s test technical is the breath police fact that on the times based In order to supervisor County. for Bexar was arrested report appellant showed qualified as a breath test technical su- ten minutes before two hours have bachelor’s pervisor, must breath test.] degree chemistry equivalent or its extrapolate from the McDougall can completed must have the breath test tech- test to the time time of the breath specified supervisor nical course confidently testify he can arrest so that Safety Public Department Texas the time of arrest appellant’s BAC at (TDPS).2 more than .10. appellant not know McDougall does (1) extrapolation McDougall explained appellant much does not know: how (2) what, variables. test; process. “I assume certain weighed at the time of the specific number give you I cannot anything, appellant drinking, had been And (3) period in time because there appellant previous for a drinking; when had started (4) So, using drinking; probabilities. are several appellant stopped when (5) higher [BAC] that he was anything possibility had eaten whether arrest, highest and what the time drinking. before or while provide supervisor According publication, tion of technical TDPS administrative, technical, supervisory TEXASALCOHOLTESTING PROGRAM OP- MANUAL, ERATOR a integ- safeguarding the expertise in scientific co-author, qualifications the minimum testing program and rity of the (1) degree accredited a bachelor's from an program’s acceptability evi- to assure that major university college awith in chemis- pertaining to purposes. In matters dential try or in another scientific field with at least agent of testing, he is field breath alcohol chemistry, qualifications 18 hours in or other Supervision by him the scientific director. Director; (2) by as determined Scientific include, (1) super- limited to: shall but not be completion of a course of instruction re- operators of performance of certified vision quired operator for of breath certification as (2) supervision operations; alcohol test breath instrument; (3) testing completion of control gathered of initial certification of data for supervisor by training approved technical sample and reference instruments individual Director, (A) which shall include Scientific area; (3) supervision assigned in an devices survey of information con- advanced current maintaining techniques testing, of scientific cerning alcohol and its effects on the human upholding regulations as integrity these and (B) operational body; principles theories and testing apply a total they to the certification of (C) opera- applicable program; instrument (4) supervision of a program; selection and maintenance, calibration; tions, repair, and applies security and testing as it location (D) analysis; aspects legal alcohol of breath (5) instruction; suitability supervi- (4) testing; (E) technical principles and knowl- policy public edge understanding compliance with the and of the scientific theo- sion of ry principles operation al- of breath and demonstrations information device; sample (6) the instrument and reference equipment; testing instruments cohol program proof engagement administrative, a certified technical, regulatory all instruction, proof or certified school testing within a des- aspects of alcohol pending engagement receipt upon of certifi- area; (7) expert testimony ignated Manual, 19.5, pp. 8-12. cation. TDPS sec. written affidavit con- direct 19.6(x) According Sec. of TDPS BREATH testing cerning aspects of breath control REGULATIONS, found ALCOHOL TESTING assigned area. within Manual, primary p. func- 8.18 TDPS been, would have and we knew what it no information than the BAC of the was at the person time of and what it could tested at the time of the test. dropped have to or could it have been Ingested alcohol passes from the mouth higher. The other possibility is how low it stomach, into the where some of the alco- could have been and still have time to stream, hol is absorbed into the blood even arrive at the concentration of what we see if the empty. stomach From stom- is. record, on the test if he rising were at the ach passes the alcohol into the small intes- time of the test. And between these two tine and is rapidly absorbed into the blood- somewhere where the value will actual stream. If there is food in stomach be.” . the passage of the alcohol into small does not intestine occur until the food in McDougall was handed Ex- Defendant’s the stomach is digested. delays This 4, hibit which being he identified “the alcohol, particularly if the [The manual.” reference is to the 1990 fatty food in the stomach consists of food publication, revision of the TDPS TEXAS potatoes. like meat and BREATH ALCOHOL TESTING PRO- which, GRAM blood, OPERATOR After it is MANUAL absorbed into Preface, lists as one of six alcohol is carried the bloodstream Technical Supervisors who acted through organs body, as co- the various publication, liver, authors. This passing which will first to pro- where the to in referred opinion begins. remainder of this cess of Appellant’s elimination “Manual,” was revised in Exhibit showing 1996]. The path- distributive depicts ways, exhibit alcohol reproduction concentration 3 in Figure is a person a “starting curve of he when didn’t Manual. anything long have to drink until after the If person’s breath test shows BAC of

peak had been reached.” more, .16 or as if is as intoxicated were a general under anesthetic. person order to determine whether is in absorption stage period If a breath [the test two hours and time which begins immediately after nine minutes after a arrest shows consumption BAC, of alcohol and continues until this would indicate had a all of the alcohol higher has been BAC at absorbed into the time of test than the bloodstream from the stomach the when arrested. If a blows a .19 small or the phase, arrested, intestine] elimination two prob- hours after in all being during which is being ability eliminated would have blown at arrested, the blood is being assuming faster least a .10 when he had absorbed. “You nothing must have a lot of drink [test after he arrested. results] order draw a full curve.” A person who blows .19 would not be “completely pain, although to oblivious” Appellant’s Exhibit is another chart would be “more than he had no oblivious if taken from the Manual. It shows another person A alcohol.” who blew a .19 would alcohol curve.' concentration In order to safely unable to drive and would have draw an alcohol concentration curve to de- physical some loss of or mental use of his termine a person whether in the absorp- is “abilities.” phase tion or the phase elimination it is necessary “many readings,” have that Appellant’s Exhibit also taken from is, blood, Manual, repeated urine or breath person tests shows that if a drinks periodically. single fatty foods, The result of a intoxi- on a full diges- stomach lyzer test does not indicate whether the tive process the stomach is slowed down person phase tested is in absorption and this a much rate will cause slower phase.' The intoxilyzer elimination is not absorption alcohol into the bloodstream. A designed to do that. test It a gives person breath will take while to reach for on the peak, assump- a of how much be .102 was based regardless he had would empty drunk on an appellant drink. But it would take no more than 90 tion that had absorption testimony is complete minutes a of all somewhat [This for stomach. “It two the drinks. doesn’t take hours the record contains no puzzling, since digest full of food.” All of the a McDougall concerning a stomach statement absorbed in 90 minutes. would be of a .102 BAC BAC of .102. The mention question by prose- only is found McDougall ap- does not know whether If had a full stomach appellant cutor.] pellant anything eat. had is true stopped, higher would have been when “he that, parameters on the in a based set out that,” McDougall than cannot tell what but chart he has which seen which was pressed to give it would have been. When NHTSA, prepared person if a drinks “guesstimation,” a he said “could appellant stomach, BAC can to .10 empty rise as, say, a maybe have been a .16 on as low hour, one more in as little as but if .25, high as quite full stomach and not a drank on full it will a stomach to “less rise maybe a .21 or .22.” than half of that” two hours. McDou- gall disagree. real has “no reason” DIRE VOIR saying that at the time not know when appel- does

appellant driving “impaired he was began drinking stopped lant or when he and had lost the normal of his control did drinking, appellant and he assumes physical mental or faculties.” assumption drink after his arrest. [This saying appellant He is not a had correct]. He not know when appel- does higher. saying of .10 or He is His peak lant BAC. refer- reached a of “at had BAC .08 or least point appellant’s ence is the result of higher.” opinion, person In his a a has test, prepared but BAC of he has .08 lost normal use testify level alcohol in appel- about the physical his mental or faculties as the re- lant’s blood stream two hours before sult of He ingesting alcohol. agrees test. “the speaks only of a .10 statute or more.” which plots He familiar with a chart give “an McDougall cannot individual the BAC “in the nature concerning appellant’s number” BAC two person elimination of a who has phase” test, hours give before the but can “a consumed alcohol. The chart shows the range.” He “thinks” it is possible at 2:45 person had a breath test person to much as be “as less elimi- showed BAC of .08. The .19”, hours and minutes two ten before the hour, .02 per nated alcohol “at about a test. “It could have been as low as a .12 something If the person like that.” end, or a .13 ... at the low and somewhere peaked .10 one hour before the end, about a .25 somewhere a test showing consistent with between there.” .08 BAC This one hour later. would be saying possi- He that there is no is not possibility peaked one if he at .10 one hour bility BAC two hours be- before test. fore could the test have lower than assumptions, McDougall Based on these .10. is an extreme where There situation testify can if the arrested it could been less than he has have but 1:15 his at that time would have at BAC figures that. has knowledge of The he .089. been between .045 and given just are estimates. if If it is time of peak on that the the

McDougall’s statement cross assumed two after he is unknown that all that blew a .196 hours known arrested, of on the test two range the end” the of he scored .08 “low arrest, McDougall give after can appellant’s at the time of arrest hours range testify if McDougall even he doesn’t know when the can about range “this person began drinking, right what he had to here” because he has two knowns. drink, or weighed. much he how test, He knows the result of the breath he knows “the standard elimination rate by “looking can do this all McDougall at is pretty among per- standard possible peak points.” peak If the sons,” so that can calculate range, arrest, occurred or at before time of “in theory.” decreasing until BAC was the time give test. This him would his “maxi- peak The changes situation occurs mum range.” Applying the elimination because, test, after the “we have a differ- hour], [per rate .02 “peak” absorption depending upon ent rate of two hours the test would be .12. before individual circumstances of the peak could The have been before the person amount of and what that alcohol arrest, but even in that case he would have perhaps has had to their weight drink and been at the .02 rate eliminating during the they began drinking and when and when intervening two hours between the time of they All stopped varia- drinking. these the arrest and the time and he absorption.” bles create a rate of different “coming would have been at .12 and down But McDougall any know situa- doesn’t to where he was at .08 at the time of the tion person where a in the would be ab- test.” sorption hour. If stage per- after an know McDougall “exactly doesn’t where arrested, just son drank before was is,” peak anywhere but if it was before BAC for an hour and rising would then he would have arrest reached peak. he would know doesn’t peak .08 The at the time test. any person would situation where would have to be before at the time of peak person two If a drank hours later. arrest at .12. empty peak on an he would stomach they hypothetical person talking person about to 45 minutes. If the about drinking day having could have started drinks after a meal meat .4Q maybe potatoes, before and had at “and peak been he would “somewhere later, coming half, down a .08 hours an hour an hour and a around nature, something very of that because he is most.” It not be possible would eliminating at a constant rate.” peak peak two later. He has to hours in about an hour.” recess, the

Following a chart to which the witness and counsel had The NHTSA does show that a chart referring was identified as DX 1. person potatoes who drank after meal not commit to the peaked “right at two about hours.” chart, although numbers reflected problem with that chart concerns principles.' to the would commit peak a situation where the will not state that can that is a alcohol very limited concentration. increase as as shown on the chart. rapidly very It is a of alcohol “in small amount It potatoes.” greatly amount of varies prepared He also familiar with chart with more It would not alcohol. be de- study NHTSA done on a layed greater situation, as much for a amount of chug-a-lug where the BAC of a alcohol. can’t dilute the on an “Potatoes empty who drank stomach potatoes [sic] more than can dilute the rose to hour. He would agree sys- with alcohol.” slows down the rapid such a rise because the While food the alcohol study getting does not what he tem and slows down concern would call “gut,”3 dependent a normal situation. into the is also drinking ‘'gut” presence potatoes in refers to the intestine. The is obvious that small

\\ very within are well parameters thinks alcohol and his upon the concentration of the going are to find.” of what “we bounds The amount of the amount alcohol. study in the reflected alcohol consumed his basing is McDougall saying that he is It chart a limited amount. the NHTSA is individu- hypothetical on some parameters just is two ounces. It is true that is al, He drinking individual. on normal consumed two chart shows parame- explaining what his not adverse to eight pure ounces alcohol ounces those are, jury can assume and the ters water, of 80 equivalent which is 5 drinks understand the they can parameters chug-a-lug vodka. If we include a proof is not using. McDougall is parameters he situation, variety. is a there lot of magic. using any possibility that A is one chug-a-lug In situation DX depicted He is considered normal. would not be McDougall agree peak might will that the he limit his testimo- saying not would you if don’t know the be after the hypothetical but to a ny appellant not to rate, affecting variables is not He would appellant. individual who range “our is so broad here in terms of explain normal and if counsel were what is really any- tell us doesn’t [BAC] bring he tell up parameters other would thing about what that individual’s breath do parameters him other would what those test result was the time of the arrest lay will it and explain to an individual. He anywhere because it could from have been out, think that coun- it all but doesn’t zero to .20.” But his is limited agreement a .10 premise that a can reach sel’s At example to the shown in the exhibit. all the alcohol before he drinking after .10, agree. levels above would not arrested, at a .0 and that he was arrested case, the test revealed is at all. reasonable [Although of .19. the revealed BAC Counsel, “it” an agreeing after is the third is of little numeral end,” McDougall “extreme at one asked importance and the breath test results is an extreme agree that there also usually expressed only to decimal two end, that some individual places.] All the information period drinking long for a could have been has But he is the result of that test. achieved a level of alcohol of time and drinking thinks he can assume a normal system, perhaps in his sev- concentration pattern. chug-a-lug He can’t assume a before, and then continued eral hours my drinking situation as normal. “In ex- McDougall said period rise for of time. He perience very unusual.” will to rise agreed that the BAC could continue example very un- give not an based on hour and a half. For more up to an usual situation. There are who not agree. cannot It has than that he chug-a-lug.” drink that much “but not and he has tested his experience, been not and it has nothing about thousands individuals appel- knows experience that their BAC rises he had drinking lant or his habits what their an hour and a half after night question, so he more than to drink on they not The chart discussed is “can’t in” these variables. last drink. factor survey. experiment an done with a But he under “parameters” can state the by a liquor of five followed making hypothetical gulp an- ounces which he if he swer, BAC. When asked counsel for “can live measure a full stom- agreed “one was done on that” or can illustrate the limitations with stomach,” empty instead ach and one on “my parameters.” But passage alcohol from the stomach rate at If the will slow down the stomach absorp- delayed, pass into the small intestine will the stomach into intestine, intestine into happen from the small will tion of alcohol small since this necessarily delayed. digested. will blood stream in the stomach has until all food 12 answering question jury

of the help said “was will to determine a fact in issue, going accept not to the hours of knowledge two as an evidence such scientific absolute, adding may by in his experience, qualified witness as an skill, expert by with all of “knowledge, [he the studies read it is experience, has] between half an hour to an hour training, ques- and half education.” Before the peak, determined, reach a drinking admissibility to after on a full tion of the can be empty stomach.” the of Within limitations criteria for admission of such evidence graph” they “that “could” have been talk- the burden of must be met proof which ing about an hour of proponent proffered half and looks the evidence the very like significant. two hours. It is not must be considered. agrees He range there is broad admissibility. A. Criteria for

and he range doesn’t know how broad that is, estimate, State, but he thinks he can make According v. 946 Hartman upon hypothetical based some average, S.W.2d 63 herein- (Tex.Crim.App.1997), based on what he would consider normal l,”the after referred to as ad- “Hartman drinking McDougall repeated behavior. missibility challenged testimony of the he did know what had to by applying must be determined the rules drink or what he State, had eat. He does not Kelly v. announced 824 S.W.2d know when appellant began drinking or (Tex.Crim.App.1992), concerning stopped drinking. When if his asked admissibility of scientific evidence under hypothetical average person dealt with an the rule. person, specifically or reasonable and not Kelly held that scientific evidence ad- answered,

with appellant, ‘With a rea- “sufficiently missible if it is relevant possibility yes.” sonable of drinking, help jury reaching and reliable McDougall added his hypothetical was at 572. accurate results.” S.W.2d based on what he considered to be “the only if both Such evidence is reliable possibilities drinking.” reasonable of technique scientific theory ap- and the point At this DX 1 was admitted. plying it are technique valid has applied properly the case before appellant’s objection After to McDou- Id. the court. at 573. overruled, gall’s testimony jury courtroom, was returned to and no B. proof. The State’s burden of concerning admissibility evidence of the evidence was heard outside the The bur- State concedes that it had the of presence jury. of proving admissibility den testimony by reliability. its establishing ADMISSIBILITY OF THE EVIDENCE problem The considered concerns the parties agree admissibility quantum evidence the State was produce discharge evidence what its bur- required later, “range” he described will question den. As be seen alleged BAC at the time of allocating persuasion offense is burden governed question determining required Rule 702 the Texas Rules (hereinafter of Criminal quantum Evidence evidence are made more diffi- “rule”), here, applicable opinion which insofar as cult of Crimi- Court State, provides that knowledge”4 Appeals “scientific nal in Emerson v. speaks rule evidence” evidence scientific understood that "scientific refers to knowledge. The term “scientific evidence” knowledge. evidence of scientific The term text, appears although nowhere in the throughout used "scientific evidence” is generally courts talk about scientific evidence opinion referring to evidence of scientific knowledge. rather than evidence of scientific knowledge. usage long Such results no harm as as it is

13 of admis- a dual standard 759, pose applying I of (Tex.Crim.App.1994). 761 S.W.2d sibility. concerning questions the will first discuss Kelly in persuasion of announced

burden it Emerson, said that In the Court problem raised and then consider the re- the evidence scientific would consider may in that a court holding the Emerson novel because test garding the HGN litera- judicial notice of the scientific take evidence had held that such no case in or- in the evidence ture not mentioned if the Even reliable. 880 S.W.2d reliability prof- the of the der to determine standard convincing evidence” “clear and erred evidence. involving novel only cases applicable of evi- admissibility testimony, problem the is no Kelly involved there scientific gaze nys- in Hart- concerning applied the horizontal test dence this case. Under the (HGN) 824 novel tagmus ‘fingerprint’ man, test. case is evidence this the evidence, at 569. The considered I have found S.W.2d Court since scientific theory technique as “novel scientific challenged holding final that the evidence;” meaning to charac- apparently retrograde extrapolation employed in concerning evidence There- terize evidence as is rehable. applied by said, theory. fore, scientific The Court in this case novel burden State’s evidence proponent admissibility “The of novel scientific of the prove the court, by clear and prove convincing must the trial evidence by clear and evidence jury. convincing pres- evidence and outside of the presence outside the presented jury, proffered that the evi- ence proof of burden the State’s When The dence is Id. at 578. Court reliable.” case, in Em- holding in this considered pointed necessary, out that was not judicial of scienti- notice erson case, per- to decide “what burden fic be overlooked. facts cannot 702 applicable [Rule] suasion is under Emerson, Lee Emerson Sharon when is not the scientific evidence offered be- DWI conviction reversal her sought truly at n. 13. novel.” Id. arresting trial court allowed cause the holding pre- supra, in Hartman concerning her reaction testify officer to conclusion that statement cludes the (HGN) test nystagmus gaze the horizontal in Kelly holding footnote is a that the to her on the he had administered evidence” convincing “clear and burden one of the arrest as highway at the scene evi- proof applies where the scientific (Al- sobriety tests.” of the “roadside dence is novel. Hartman held gaze nystagmus is some- though horizontal reliability limit- relevance and could not be gaze nystagmus,” called “alcohol times involving ed to cases novel scientific evi- “AGN,” opinion I use term in this will reaching dence. 946 at 62. In S.W.2d HGN). conclusion, Court, saying that it after that, un- problem Emerson having found no value in a different stan- pre- Kelly, like the State situation admissibility depending on wheth- dard showing validity sented no evidence added, novel, “[T]he er or not evidence is technique for theory and the the scientific determining wheth- problems presented in Kelly rules con- its Under the application. particular type not a of evidence er or admissibility scientific evi- cerning reject appli- daunting enough novel dence, admitting court erred in the trial Id. at 63. of a dual standard.” cation the HGN evidence. believing is no basis for There reversing opinion avoided daunt- The Emerson found so problems which Court own by inquiring, on its the conviction when ing disappear in Hartman will motion, reliability of the scientific for the into the distinction is attempt to make the to the doc- technique “pursuant theory a dual standard purpose applying S.W.2d at judicial notice.” 880 trine pur- rather than for proof burden appellate may judicial reliable,” 764. An court take citing NHTSA the NHTSA publication, notice of facts outside record although Improved Sobriety Testing (the requested by any do party so previous source of its statement about test). without notifying parties of inten- efficiency its the HGN judicial tion to do so part Texas, because notice is S.W.2d at 768. In officers adminis- of the inherent power of trial and appellate tering the test receive “standardized train- Specifically, courts. the Court ing said was in its administration and must follow judicial authorized to take of notice the procedures” standardized in outlined scientific fact capable which “is of accurate NHTSA’s DWI Detection Manual. Id. ready by and determination procedures require resort These standardized accuracy sources whose cannot reason- the officer “screen for factors other ably questioned.” Id. than may alcohol that contribute to cause nystagmus, as drugs, neurological such noting After that the effect of alcohol on disorders, damage, and brain prior ad- HGN, nystagmus, specifically is “well doc- ministering the test.” Id. Because of umented,” recognized the Court nys- required these procedures, the Court held tagmus may be caused factors other technique employed the the HGN alcohol, drugs, “such as other neuro- test “is a reliable indicator intoxi- logical disorders, or damage.” brain Court.) cation.” (Emphasis by Id. the S.W.2d at 766. The Court then noted that publication, NHTSA its Improved So- finding theory that both the and (1984), briety Testing, 1 concluded that the technique of the HGN test were valid led test “single, HGN is the most effective the conclusion that con- sobriety field test determining whether cerning the reaction of the defendant to an individual alcohol-impaired.” Id. properly test was admitted.5 consulting After concerning “literature Although recognized the Court that the alcohol and eye its effects on human move- HGN test is a reliable indicator of intoxi- ment, and considering law from case other cation, it such finding refused extend jurisdictions addressing reliability reliability to NHTSA’s contention that the test,” the HGN found Court that the test an is reliable as a precise indicator of theory underlying sufficiently the test .10). (specifically, BAC BAC at least “pursuant reliable to ... Rule ... 702.” This recognize refusal as a test Id. at 768. The Court added that of a reliable indicator of at least .10 addressing scientific materials the issue was based on the fact that NHTSA’s “lab have reached the uniform conclusion that experiment margin of error of [showed] consumption “cogniza- alcohol has a .032%, pub- and the dearth of [on] movement,” ble on eye effect human and accuracy lished on writings expressed accuracy its belief that (The technique.” NHTSA’s formula and ques- sources “cannot be reasonably published writings, Court did not mention tioned.” Id. later, criticizing which will be discussed conclusions.). technique methodology

The Court then found that the NHTSA’s employed HGN designed by prevented test “as These factors Court 5. The officer who test administered the not revealed. The Emerson court's reliance training Emerson received his HGN at a 3- on strict adherence to the NHTSA’s "stan- day County "state school" Bexar at which procedures” may dardized not warranted. "batteiy” he was "introduced” to field court, In the now case before this the officer sobriety tests "advocated” NHTSA. was who administered roadside HGN test to during this a batteiy introduction to of tests Mata testified that at the school he attended that he learned how to administer the HGN taught County Bexar that the test. 880 S.W.2d at number of consumption causes of HGN were of alcohol during tests to which he was introduced and mental illness. 3-day period in addition test HGN influenza, streptococcus infec- as reliability of lems such judicial notice of the

taking measles, tions, syphilis, vertigo, of deter- arterio- the HGN test “within the context precise angle sclerosis, multiple mining dystrophy, BAC based on muscular at 769. nystagmus.” 880 S.W.2d brain sclerosis, Syndrome, onset Karsakoffs hypertension. hemorrhage, epilepsy concerned, far test is As as HGN strain, eye motion evidence that There is who only that an officer Emerson holds sunstroke, sickness, eye fatigue, muscle practitioner received a certificate “has HGN, and glaucoma may bring about HGN Texas to administer the State affect the day may that the time of qualifies expert adminis- test” nystagmus first observed. angle at which may technique of the test and tration common sub- Consumption of such perfor- Id. testify a defendant’s nicotine, caffeine, aspirin may on the “but not correlate mance stances nystagmus performance the on the HGN to in defendant’s have been found result at 768-69. precise resulting test to a BAC.” Id. from to that almost identical Id. drinking alcohol. its on on Emerson and effect Comment in the this case will be reserved decision of HGN In view of the numerous causes subsequent portion opinion. until a alcohol, that the conclusion other than the suggests there is no impliedly Emerson indication of is reliable presence HGN questioning scientific literature the relia- entirely convincing. It is not intoxication technique bility of the HGN test or of the police officer is easy to believe that administering applied by police officer to the HGN competent determine early highway the morn- test the the to in- is attributable which he detects ing by passing object hours across alcohol. gestion of estimating subject’s field of vision to notice of studies Emerson failed take angle eyeball deviation at which percent 60 which reveal that fact, eyeball begins. unusual behavior gaze nystagmus will show a population, methodology study on which the they from if devi- indistinguishable HGN heavily its majority depends for Emerson to the eyes degrees more than 40 ate them “a finding that test is rehable HGN Toglia, side. ELECTRONYSTANOGRA- indicator of has been serious- intoxication” Nichols, AND AT- ly DRINK- PHY: TECHNICAL ASPECTS questioned. See 3 LITIGATION, (1976). po- The NHTSA test which CIVIL LAS ING/DRIVTNG (1995) CRIMINAL, AND Sec. 25.01 instructed to use in terms lice are cited. The scientific literature there angle degrees at an of 45 deviation statement the sources on Court’s result of NHTSA subject’s nose. The reasonably ques- it which relied “cannot be result in a number necessarily tests subject reasonably being tioned” is persons with a positives,” since of “false questioned. would nevertheless clas- BAC below .10 or, at a BAC at least having sified as recognized that opinion The Emerson least, eye movement very that their may be caused factors other nystagmus was the intoxication. problem result other consumption, than alcohol such as problem aware of this NHTSA neurological disorders brain drugs, by administering placebo, a avoided the fact that in Tex- damage, and stressed alcohol, persons sched- with drink as administer the test officers who signs of mod- testing uled for who showed possible screen for other required This at zero BAC. strong erate to HGN previously men- such as three causes effectively persons out screened precaution opinion. at 766. tioned S.W.2d incorrectly identified HGN, being risk of in- at Possible causes procedure explained alcohol, positives. in a as gestion problems include Develop- physiological prob- ear and NHTSA=DOT —HS-805-864 person’s inner ment and Field Test Psychophysical The inclusion of the HGN test Arrest, (1981), Field Tests battery DWI 16-17 sobriety of roadside tests is inter- Nichols, cit., reprinted which is be- esting. subjective Unlike other standard ginning p. Appendix 3 of to Chapter sobriety tests, C field one-leg such interesting explanation It is stand test and walk-and-turn it is not seems to presence assume that of designed to reveal the loss of normal vol- solely HGN alcohol-free is due untary control of a mental or ,to drugs. the influence of If more than physical faculties by only. observation population half of the will HGN exhibit appears category to be in the same BAC, zero this assumption may subject eyes, although bloodshot it comes clothed questioning. reasonable garb. more scientific opinion asserts that Court recognition Emerson is an authoritative judicial taking notice of scientific facts appellate our of a highest criminal court capable which are ready of accurate and right court’s literature consult scientific determination resorting to sources in considering admissibility of scientific accuracy whose reasonably cannot be Although opinion evidence. involved questioned. 880 S.W.2d at 764. This the consideration of scientific literature for may statement be true it is limited to the purpose of determining that evidence ingestion conclusion that of alcohol has a admitted, was properly nothing there is cognizable eye. effect on the human But the opinion judi- which suggests that the the conclusion that an officer in the field cial research is limited consideration of can, by the HGN on administering test literature which the affirmance results highway conditions, under non-laboratory of a conviction. person determine whether a is intoxicated evaluating I will testimony, at- questioned. has been seriously tempt Kelly guidelines by to follow the fact, findings, NHTSA’s are not considering whether the evidence discloses agreement researchers, with o'f those theory of existence valid scientific Ashean, e.g., Types Alcohol Different of testimony; which forms the for the basis Nystagmus, 140 ACTA LARYNOLOGI- whether the record reveals the existence of (1957). CA, 69 technique valid for the of application Although the Court found that the HGN theory; such valid McDougall and whether intoxication, test is a reliable of indicator it properly technique admitted such valid rejected NHTSA’s contention that the test will, this I case. did the Emerson was a precise reliable indicator of a BAC court, refer to relevant scientific literature. .10). (specifically, a BAC at least S.W.2d at 769. Court to rec- refused C. theory. Evidence valid scientific ognize the test as a reliable indicator of a that, given said result of BAC of at least .10 because NHTSA’s “lab test, could, appellant’s breath he ex- experiment error margin [showed] trapolation, testify concerning appellant’s pub- [because of] .03% and the dearth of BAC at the time he was arrested two writing

lished on NHTSA’s formula and prior hours and nine to the test. minutes (No technique.” mention was made of explanation lengthy His first was neither published criticisms, already noted nor clear. He said: opinion, methodology NHTSA’s conclusions.) prevented factors I I These certain can- assume variables. And taking judicial you Court give notice for a specific number reliability previous period test HGN “within the because there time determining precise So, probabilities. using context of BAC based are several angle on nystagmus.” of onset of possibility higher that he was at [BAC] arrest, highest S.W.2d at the time of what time of been, appellant’s BAC at the it insisted have and if we know what explanation found. This it arrest would be at the time of could was what in this previously quoted which has been to or could it have been dropped have if he when was asked enough opinion, time to was he higher and still have at the “range” for the BAC give we could the concentration of what arrive at BAC two for a whose record, at time arrest rising test if he was see by a was revealed after his arrest And these hours the time of the test. between .19. answered two, somewhere, val- breath test to be He the actual where per- for that “possible” he it was thought ue will lie. .19 than a at as much as less son to be here be- explanation repeated This arrest, BAC so that his at the time his cause, in in his revealing addition low as a .12 or time would be “as of arrest necessary “as- extrapolation was low end and .13 ... A .12 or .13 that, variables,” it shows sume certain end, a .25 at the somewhere about concerned, far as possible BAC was (There can in between there.” somewhere possibili- two considered testimony doubt that this concerned possibility first he considered is ties. The at the arrest- appellant’s BAC time was BAC at time arrest ed.) higher than the BAC the sub- revealed (His He doing is clear. this What sequent test. consideration of BAC of attempting use possibility easily is not in the understood by the test as the basis if a .19 revealed face appellant’s BAC at the inferring “blows” a .19 two hours after arrest more than two hours earlier. of his arrest this would tell him that the possibility not consider the it Since did higher the time the test was arrest.) at the time of the test was at time the The that the BAC the second test, enunciated, at time of the the same as the possibility, though clearly less that, at to infer the BAC by is realized order the situation where the BAC revealed arrest the BAC re- the time the higher the test was than the BAC at the test, breath by subsequent the explain why time of arrest. He did not he vealed adjustment some to necessary at was to make possibility dismissed the that the BAC for what- the the the breath test BAC account the time of arrest was same as changes appellant’s BAC Recog- ever occurred by BAC revealed the test. breath passage of time. third rest because possibility nition this does not assumption a on the that BAC extrapola- retrograde I that will assume change passage with the of time. does theory tion on a valid scientific is based that and literature establish record the the pass question the BAC of a who has consumed used in facts which must be known and peak rise until alcohol will it reaches to the necessary adjustment the making will decline until all has then been think, This, I leads test BAC. subsequent means from the blood. This eliminated a valid of the existence of consideration of, .14, say, which is reached that BAC applying used in technique which must be necessarily repeated will be prior peak, and, theory presumably valid scientific peak. declines after This will as the BAC requires finally, determination any by study graph be revealed technique that valid whether made alco- showing absorption elimination of by correctly applied McDougall hol. case. by process followed nature of technique. D. Valid sub- McDougall explained by his better the critical prosecution, numbers In DWI testimony when used sequent condition of the accused question within which he “range” to illustrate the operating time was a motor Technique vehicle E. Used a public highway. charge Where saying give After that he ap- could not operating that the defendant was a motor pellant’s time-of-arrest BAC terms of a public highway vehicle on at a time when number, specific asserted more, or BAC was .10 the State must give “range” he could of a low consisting end, high end and a prove that the BAC of the at the and that appellant’s accused BAC when arrested would lie within that alleged time offense was at least .10. range. He declared that it “possible” McDougall’s testimony and relevant lit- appellant’s BAC when two arrested erature show that when alcohol is con- hours ten minutes before the test bloodstream, sumed it absorbed into could be “as much as .06 lower than the .19 steadily the drinker’s will BAC rise revealed test.” He said that peak reached, until a BAC is after which at the time of arrest appellant’s BAC was range having within a or will until all .12 .13 as its low BAC decline alcohol is end and a end of .25.” “about eliminated from the blood. This means passage time will result in a end, arriving possible at his low n change constant in the drinker’s BAC. ends, low appel- assumed test, peaked lant at or after time If the peaked driver’s BAC at or before and the amount which he subtracted from arrest, the time of his was declin- BAC clearly represents .19 the amount alco- ing during intervening the entire time be- during hol blood had absorbed Therefore, tween his arrest and the test. period entire two hours and ten at the time BAC arrest can be minutes which intervened between arrest only by inferred to the re- adding and test. When he subtracted from .19 vealed the test the amount the BAC .13, get low end of he must have If peaked decreased. the driver assuming was absorb- after the BAC at the ing alcohol at the rate of less than .03 an only by time of arrest can hour. As far his other low of .12 is be determined end concerned, explained it can as the subtracting from the test BAC the amount subtracting result of .07 from so that the driver’s BAC increased between the possible low end of .12 was obviously time of his arrest and the time of the assumption appellant based on the that subsequent If peak test. the occurred af- absorbing was alcohol at the rate more ter the time of arrest but the time before per than .03 hour. adjusted the test BAC must be McDougall’s high end of about .25 can for account the increase BAC be- explained only the fact that he added tween the time of arrest and the time “about” .06 the test BAC of .19. Since the peak and decrease occurring between high must on assumption his rest that peak and time of the time of the test. the test BAC of .19 was lower than the No retrograde reliable method of ex- arrest, BAC at the time of the “about” .06 trapolation has been referenced which which represent he added to .19 must require adjustments does not out- appellant total amount of alcohol eliminat- lined in preceding paragraph be made arrest ed between the time of and the time the BAC revealed the breath test. of test. This in determining means that end, My high McDougall had to attention not assume has been called to appellant eliminating was alcohol at a study showing, a suggesting, or even .03, .02, rate of per about hour. technique for inferring reliable a pre-test require BAC exists which does not trial, At the time of the when asked to making adjustments. such I have found name the factors he considered in deter- mining high none. low his range, and ends of said, (1) range McDougall he can calculate into McDougall said he took account theory.” “in passed [pre- of time that has the amount sumably, meant the amount of time that McDougall Correctly Apply the F. Did arrest passed

had between ? Technique (2) Valid test]; the time of the how much and get it to that alcohol con- takes to evidence ad- Kelly, scientific Under (3) centration; alcohol is the rate at which “sufficiently relevant only if it is missible (4) body; from the “what eliminated in reaching help jury and reliable normal would consider [he] at 572. accurate results.” S.W.2d alcohol, normally a person how fast only both Such evidence reliable drinks.” technique theory ap- for scientific tech- it valid and the valid plying are both answer, Shortly gave after he applied properly has nique McDougall give was if he could a asked the court. Id. at 573. case before time he range for a “male’s at the BAC” oper- charged defendant is with if a test two hours Where a “stopped” highway on ating public [The later revealed BAC .193. record a motor vehicle more, .10 compels question the conclusion that the at a time when his BAC was is that which at the time he relevant evidence concerned BAC Although particular defendant stopped. prove record shows tends he was elapsed “stop” that some time between the had a excess .10 when highway. If the evi- arresting driving public and the arrest while the officer on a concerning BAC does not tend to having appellant perform several dence tests, fact, it irrelevant and inadmis- roadside does not here show that signifi- help to the elapsed contend that such time was because can sible jury reaching answered: a correct answer concern- cant.] guilt. that defendant’s ing I have believe the side would a valid I have assumed the existence of higher been somewhere around theory technique valid scientific that, a 0.2B would be theory. I consider applying now body eliminated then his would have us, whether, in the case now before equivalent during of two drinks an hour correctly valid applied that side, low two hours. On the technique. body would have absorbed two three drinks and as much as a .04 or a extrapolation I will first examine the peak maintained reached either hearing spoke during little peak level or decreased a bit 1) (extrapolation suppress motion to arrest, until the time of which would trial during and the one testified him, guess make I at the low side of a 2). (extrapolation on the merits say So I between a .13 and a .13. at low of “.12 or .13” arriving In his end .23. assumed, 1, as extrapolation McDougall in concerned, absorption an expert far as .12 Although he admitted an per over a extrapolation [.07 make of more .03 hour using retrograde must rate or, and ten assumptions, McDougall period minutes] declared two hours certain concerned, an far as the low of .13 is confidently appellant’s that he could infer per [.06 horn* at he had rate less than .03 BAC the of arrest because and ten min- McDougall period two hours identified these over two “knowns.” 2, extrapolation for his low end In utes]. BAC revealed “knowns” .13, McDougall appellant assumed that “the elimina- of the breath test and standard drinks two or three pretty among rate standard “could have absorbed tion which is .06, which would as a .04 or a knowledge, this and as much persons.” Because of 20 guessed] instance,

make him [he at the low side of a arriving establishes that in at effect, assumed, In McDougall .18.” in range the low end of a the test BAC determining 2, his end in extrapolation low decreased by subtracting the amount ab- that appellant had absorbed alcohol at a during sorbed the time between arrest and period, rate .02 or .03 over two hour not subtracting the amount elimi- he although only used .03 determining nated, which is relevant considering low Concerning appellant’s end. high the possible high end of the range. Must 1, end in extrapolation about .25 we assume that reference McDougall appellant assumed that had rate of elimination instead of rate of ab- during eliminated “about” .06 the interven- sorption merely slip was the tongue? minutes, period of ing 130 which would During examination, his voir dire while result in an elimination rate of “about” not answering hypothetical questions on based quite per 2, .03 hour. In extrapolation assumption person question McDougall assumed that hour, eliminating at hour, per a rate of .02 eliminating per at a rate .02 since said, added could adjustment stopped he .04 to .19 to “He have make the thought necessary drinking day to account elimi- for and before during nation two hours. This is a... maybe how .40 coming [BAC] down high arrived end of .23 in later, a .08 hours or something of extrapolation 2. He did explain why not nature, eliminating because he is aat used an elimination rate of almost .03 in constant rate.” If hypothetical per- extrapolation 1 elimination rate of was, son’s “constant rate” of elimination in extrapolation .02 although it must be fact, McDougall’s “standard” elimination admitted that the use of different elimina- hour, .02 per rate of he would have elimi- entirely tion rates is consistent with his x .02], nated .40 in 20 [20. hours so that might admission that he relying have been his BAC stopped 20 hours after he drink- assumptions different in the extrap- two ing would have been did zero. figures olations that the “are not set in explain person how the could have concrete.” attained .08 four hours after his reciting factors would “take BAC was zero. The could not have determining into account” in high .08, which, absorbed to McDou- according range, McDougall low ends of his enumer- gall, drinks, equivalent four four ated “how much get alcohol it takes to BAC, having hours after had zero since he that alcohol concentration” and “how fast a stopped drinking 24 hours earlier. Per- person normally drinks.” Neither one of haps explanation a fairer these factors was mentioned either ex- that, since the had come down trapolation, and the record furnishes no = hours, .08 [.40 minus .32] basis for finding that he considered either McDougall assuming an elimination one in arriving these factors at his low rate of about than his rather standard ends. The fact that McDougall .02 which extrapolation he used or the did not all of consider the factors which he extrapolation almost .03 which he used in may justifiably said were relevant con- significant. sidered While drawing, The record inescapable before us makes jury, a.graph benefit of the showing “alco- that, time,” experts, the conclusion like hol concentration all versus he said McDougall assumptions. made that the low end would certain be determined . process When he said of considering the that the extra- question polating could be “at a or he eliminating .02 .03 elimi- would “assume” certain “varia- hour, bles,” per nation rate he [which] would did not mean that would as- make he .06a less than [.19] .13.” The undis- sume certain “variables” existed. —a puted case, except in this for What he meant was that he would assume into passes the amount of alcohol greatest no from individual there are variables 5) blood; type of food quantity the assumed individual. (the pres- drinking which are or while rates or values eaten before there are certain as the rate of the stomach slows to all what he described ence of food applicable world, pass in the does not absorption, the five billion individuals since alcohol of might admit there be some into intestine although he did from stomach the small exceptions. has been until all the food the stomach digested. ab persons that all assumed rate, although he type alcohol at the same of sorb not know what McDougall did In always did not assume same rate. had con- beverage appellant alcoholic an ab extrapolation his first assumed ignorant sumed. He than in determin rate of less .03 sorption in the unknown concentration of alcohol of more ing low end of and a rate had drink- beverage appellant which .03, which he used in de apparently any had that he ing. There is no evidence sec termining the low rate of .12. functioning concerning the of knowledge absorp extrapolation spoke of an ond sphincter. McDougall appellant’s pyloric hour, although or per tion rate of .02 .03 had, or know whether did not only apparently his calculation used not, anything or while had eaten before of absorption per rate horn1. we that McDou- drinking. Even if assume knew, might easily have deter- gall of different Whichever mined, County, he altitude of Bexar used, McDougall’s assumption rates he appel- completely ignorant, far applicable that that rate is to all concerned, the five lant of four or cannot be defended. Neither his testimo- Manual, which, according to the factors ny nor the brief refers to scien- State’s absorption. rate affect the theory that supporting tific literature persons absorb alcohol the same Nichols, In 2 DRINKING/DRIVING authority. I rate. have found no such LITIGATION, CRIMINAL, AND CIVIL (1995), 23:07-23:27, pp. there Secs. 38-102 Manual of was a which the rate 5-5, affecting factors recognizes, at is discussion of page co-author absorption, supported reference absorption vary rates dealing with Of influ- numerous scientific articles person. the various factors which 1) subject. can be doubt that only the Manual lists There absorption, ence absorbed, the rate of the amount alcohol type beverage of alcoholic consumed (carbonated and the time absorption, peak absorption, ab- beverages promote tend to upon absorption depend oily fatty beverages peak tend to reach sorption, while 2) factors, the five it); variety not limited to alco- retard the concentration of (if Manual. In addi- beverage con- are listed in the hol in the consumed which factors, five consideration be- tion to those centration of alcohol the stomach to, things, may among must high, too the stomach become comes irritated, the alcohol was during frame which reducing the amount alcohol consumed; as the biological factors such passes which from the stomach to race, intestine, person drinking, age, and sex necessarily delaying small alcohol); absorp- can affect the rate of all of which rate at which blood absorbs tion; 3) (it effect of food must be considered altitude has been contended type amount and terms rapidly higher more absorbed consumed, altitudes, but in terms also although later studies cast some food drinking; and contention); 4) eating interval between the function- doubt on this may diseases which emotions certain pyloric sphincter, which controls ing of gastric emptying, affect the rate of contents into passage the stomach’s absorp- the rate of intestine, necessarily the will affect from which site far small tion. supposedly did know out vary that elimination rates from indi- appellant individual, was a Hispanic male. vidual ranging from per .01 hour, hour per to .025 with average Section 23:30 of the Nichols work cited hour, being per .018 although rate of .02 preceding paragraph discusses the per may hour for be used “ease of calcula- fact absorption rates are not the same Nothing tion.” in the suggests Manual for the same individual when he is tested that using wrong average makes for at different times. It is also pointed out greater accuracy. that, depending on the various factors may which affect gastric emptying, is, not Rate of elimination like rate of ab- only among persons, different sorption, Nichols, but also a variable value. See cit, individual, op. complete absorption same seq., et 23:27 secs. for an enumer- may require from two to six hours. ation of the various factors which affect summary A helpful elimination. of these nothing There is in the record to indi- factors, as well as those which influence considered, cate that McDougall as far as absorption, is found Sec. 23:60 of the concerned, many factors, is Nichols work. sex, may which affect the rate absorption. By (about 90%) This means that in greatest his ex- far the amount trapolation he apply did not relevant facts. is eliminated as a result of the differently, Stated far absorp- process as rate of which place metabolism takes concerned, tion is McDougall’s extrapola- the liver. that any should obvious tion not knowledge based on person, rele- an expert, even who performing is vant I am prepared facts. hold requires function which knowledge of expert, even a forensic can expert, arbi- the rate at which a eliminates person alco- trarily pick hol, absorption, rate of whether be vitally with concerned .03, be less ore more than and assume that size functioning that person’s liver. his chosen rate applies persons all McDougall’s testimony contains men- world, including the happens who tion of the liver other than his statement charged to be with DWI in the case in that when alcohol is absorbed the blood expert testifying. liver, it passes first to pro- where begins. cess of elimination I next consider the rate of elimination which McDougall obviously ap- assumed McDougall’s assumptions per- plied world, to all in the including is, sons at absorb alcohol rate same appellant. 1, itself, In extrapolation he used an unexpressed based on an assumption elimination rate of almost per .03 hour. that every stomach “normal” in extrapolation he used a rate of .02 per the sense that it is of size normal hour. In his concerning the functions “normally.” Without this as- hypothetical person dropped whose BAC sumption, there is no basis assuming for hours, .40 to .08 in 24 apparently that a rate applicable to all used an elimination rate significantly persons. .02,

less than or if used he made an of absorption dependent rate mathematics, error in his despite the fact the amount of food stomach and the that, as shall see in paragraph, we the next time it it. digest takes to apparently Manual considers useful partially recognized least when this only “for ease calculation.” said, in support of his assertion that no Contrary assumption be in absorption stage can for that all persons hours, eliminate alcohol at as long as two “It take doesn’t two rate, Manual, 5-9, page points same digest potatoes.”6 hours to [His meat and reason, point, At unexplained for some peak required time to reach talking switched from complete digestion potatoes about the of meat and do, our noses juices some of gastric testimony that all alcohol must ab- beans, navy of the size ninety in more than minutes would be about sorbed not twenty last will discussed the size of later.] after his drink others would be while recognized it is individual differ- If pound Once Id. watermelons.” facts, obviously the rise and fall important ig- ences are when he any knew of these concerned, of BAC are no conclusions con- assumption in favor nored them of any absorption cerning person’s rate the same all absorb alcohol persons rate elimination can be drawn without rate. knowledge person’s physiological of that noted, previously while As McDougall lacked this functions. Since retrograde expert using that an admitted it appellant, knowledge concerning assump- must make certain extrapolation necessary rely which he that he on value tions, testify that he could he declared assumed in applicable is all BAG at the time of concerning appellant’s

world, including appellant. “knowns,” because had two arrest In terms of human “normal” physiology, which he as the result identified variety embraces wide individual dif- elimination test and standard breath ferences, and there is no basis for assum- is per pretty “which stan- hour] rate [.02 ing that “normal” means “the same.” If among persons.” dard Because stomachs, proba- we could look at our own things, McDougall said he knew these two bly expect most us would to see what the time could calculate BAC at might be the typical called textbook stom- theory.” Actually, McDougall “in of arrest Williams, fact, Roger ach. as Dr. has only thing appellant, knew one about out, size, in pointed vary ... “Stomachs test. result of the breath He that was the placement contour far shape, more appellant ignorant rate at which Williams, than our noses and mouths.” R. assumed, as distin- eliminated alcohol and EXTRAORDINARY, ARE YOU guished knowing, appellant elim- (1971). importantly, More since the inlets per at the rate of hour. inated alcohol size, in vary greatly and outlets shape, McDougall described as two knowns What placement operation, “some stomachs concerned, are, as far as is one intestine, empty rapidly into the small oth- Assump- assumption. one “known” and ers slowly.” much more Id. at 25. Ac- course, tions, when necessary cording to one author referred ignorance a relevant there is Williams, there are nine “normal” different which, knowledge this lack factor. stomachs “normal” and nineteen different testified, necessary makes types vary greatly stomach size assumptions indulge for all experts facts, shape. no one Given these they attempt retrograde extrapola- when difficulty understanding should have I prepared am not believe tions. why high degree uniformi- there not a not expert, hav- McDougall, or ty place in what takes the stomach. (including of a breath test ing the result 5,000 study among One showed some test was adminis- case in which juices people, gastric varied their tered), use the “standard” breath (the pepsin primary digestive enzyme) con- County pur- Bexar test result tent at least a thousandfold. Similar vari- predicting a BAC at pose of defendant’s hydrochloric acid ations were found time, a “range.” terms of prior even content, per- with a substantial number Moreover, knowledge juices. what having gastric even no acid in their sons elimination” rate “If varied as much calls “standard normal facial features course, peak absorption absorption will be supposing that stomach. Of since in the begin until stomach be- all food in the at the same time does reached digested passes into the small has been gins. intestine, reason for there no defensible accepted “known,” event, as a relevant this does number time to time. In any problem. not solve his The rate elimi- his is insufficient to show that only nation becomes relevant if it is as- use average rates establishes that he that appellant peaked sumed at or before applied a correctly valid technique per- in arrested, the time he was and even forming extrapolations. assumption indulged, is the rate of elimina- laboratory is true that results of tests only purpose, tion used for the of deter- and clinical often “average studies refer to mining “high expert’s end” rates,” times,” diets,” “average “average range. A “range” relevant, as as far here and similar terms which serve a useful requires a high end and a low end. in purpose enabling us to understand the Knowledge which is limited in use to or laboratory results of clinical tests which end, end, determine one is useless are often in stated technical language. purpose for the of determining a “two-end” But justify, permit, this does not even or range. average conclusion that values or char- In reality, opposed to “in theory,” acteristics can to applicable be assumed be McDougall’s ability to calculate to all Averages individuals. cannot be re- at the require, time of arrest would being lied on even as to all applicable in addition to two factors which he members, member, or even one “knowns,” called assumption. further If group Necessarily, studied or tested. appellant peaked any time after his cannot, average value or characteristic arrest, and if giv- limited simply because it is average, applied to ing “range,” inability since he confessed any happens chance individual who give prior in “specific BAC terms of a in litigation. involved number,” calculation of of any the low end study If a of a representative group of expert’s range would require knowledge of lawyers Texas reveals that the average the rate of absorption. Two “knowns” are feet, height individuals studied is six simply enough. inches, two no reasonable would making After that in saying his calcula- every lawyer is six conclude Texas in” any tion he could not “of “factor these feet “Average” and two tall. refers inches variables” of which he had no knowledge, by dividing the value sum obtained many such things as the he admitted not quantities of a set number knowing appellant, McDougall about as- quantities Thus, im- the set. the term serted that could “parame- he state the plies diversity. A ran- chosen at ters” which he used giving “hypo- may, not, dom may conform to the answers, thetical” and that appellant’s fact, average value. there is no basis “live counsel could with that” could assuming even likely it more

illustrate the limits of parameters. those than applies not that average he parameters said based his See, Huff, specific person. generally, D. individual, on some “hypothetical” on a STATISTICS, LIVE HOW TO WITH Ch. drinking “normal individual.” This state- (1982). right ment was made after he had identi- simple Some suf- illustrations should be fied appellant’s “drinking habits” as one of fallacy technique ficient to show in the and, “variables” did not know case, which McDougall applied in this even therefore, could not “factor in.” if it using average is assumed that he was frequent use of “normal” rates of and elimination. McDougall may be cited some evidence that, October, 1998, which supports suggestion in- issue National of arbitrarily choosing supple- stead Geographic Magazine certain rates contains a elimination, entitled, of absorption and he was ment using Supplement: “Millennium rates, average although changed Population,” which refers to the fact of the breath stage rate of de- elimination average fertility women as shown more drinks veloping declining, countries means that had number of average the fact that have eliminated because he would per dropped woman has from 6 children period. during two two-hour drinks fact, In actual 1950to 3.8 case, added, person, “A whether He in any to find a impossible woman up, they going or they coming down were 3.3 country who has birth to chil- ... at 14 have consumed least still would dren. one that all wom- No would assume is somewhat testimony [This drinks.” gave in developing en countries birth to 3.3 he by “coming If down” meant strange]. in 1998. children alcohol from eliminating 20, 1999, January York The New Times meant the body by “going up” his and he high reported gives temperature for absorbing alcohol into his person was still preceding day by foreign each of 68 bloodstream, patently is his conclusion Adding together reported high cities. at the time of “going up” false. If he was temperature every city other on the list no reason for two adding test there is 34, dividing by an gives total aver- drinks, two drinks is since the addition of age high temperature of Not one of 56.6. justified only it is assumed he was elimi- reported high temperature the 34 cities a If nating at time of test. McDou- average If the is rounded off to 56.6. is on gall’s unexplained “shorthand” based reported high a not one the cities assumption that it matters not whether Twenty reported 57. high cities a below absorbing or al- eliminating the person reported high Only 57 14 a above 57. cohol, unquestionably wrong. it is range had a in high having 6 cities found end, high 62 as its end and 52 its low objection to this calcu- The first obvious only reported while 13 the 34 cities that it time of peak lation is considers the highs its range having high within a 77 as irrelevant, it does not af- completely since Any end and 47 as low end. its conclusion appear to be fect the result. What would assumption based that 34 cities had adding reason for two defensible reported of 56.6 or 57 would be supposedly by drinks to 12 revealed indefensible. rest on the McDougall’s shorthand would necessary rely it is not to on maga- But unwarranted, or, least, as- unexplained, at zine to show the newspaper articles person peaked that at sumption unreliability McDougall’s technique. This before the time he arrested. reasoning The in his in flaw is found his in even assumption becomes less tenable testimony own in case. this testimony that McDougall’s earlier view that had testified if a hours his person blows a .19 two after system 14 in “drinks” his time arrest, his this indicates BAC the a “drink” as was arrested. He described the time of higher of the test was than at being “12 ounces of beer or four five arrest. quarter an ounces of wine or ounce and in The more serious error liquor.” He his con- proof explained of 80 until he calculation did not become evident by person weighing if a saying clusion portion of his was cross-examined. approximately pounds 185 “blows” interesting that most and re- stopped after has two hours fallacy respect with neces- vealing this that at the time of the drinking, means aver- sarily assuming inherent system test he has his age applies revealed “equivalent of drinks.” Nowhere did reaching his conclu- statement explain the basis for conclusion assuming Rho sion he “was Widmark’s say he used his own “short- if the is in the factor of .68.” hand.” He said that reference to a study by the Swed- Widmark formulas from all of scientist, Widmark, ish E.P.M. who studied Widmark’s conclusions he to use chose physiology consumption of alcohol only the “Rho factor .68.” example, For German, published findings, in 1932. required per- Widmark formula study His defined the absorption, distribu- weight son’s be expressed in ounces tion and elimination of alcohol mathe- multiplying weight pounds by matical terms which he then used to calcu- McDougall explained using his for- late the amount of in a mula he did not have do this. He also body. His test involved 20 men and testified that order determine the each women of whom consumed fixed number of drinks a person had consumed cognac amounts of brandy diluted on an he did not have to determine the amount empty stomach. He then tested blood of in person’s alcohol body, a determi- samples person every from each fifteen nation which from of results the use for period minutes of three hours and formula, because, Widmark to his own use plotted resulting for BAC each words, using “The shorthand that I am in alcohol curves. blood He found that already for that.” He accounts added each person’s rapidly BAC increased developed meth- has “some shorthand then decreased. He termed the downward figures ods that in account for all “Beta,” slope of curve a term which is long ...” equation [Widmark] There today still used to describe the rate at any person evidence which alcohol is eliminated from the blood. McDougall uses his methods. shorthand The rate peak decline BAC and the testimony His reli- establishes that his levels resulting drinking study, ance on Widmark’s is limited to amount of empty same alcohol on an stom- “assuming Rho factor of .68.” Widmark’s ach varied greatly among the 30 But he failed to important mention a few being (Subsequent tested. studies have relating factors assumption. to his He did that peak vary established BAC levels sub- not mention that “Rho .68” stantially factor of among individuals when even by average reported amount of Rho per body alcohol consumed factor Wid- weight and affecting forgot the factors the rate of mark. also to two oth- He mention if, absorption fact, and elimination things, are controlled. er in In he knew them. O’Neill, Duboski, Williams, 1 Variabil- report, pointed there Widmark out that ity in Blood Ap- Alcohol Concentration: significant was a val- variation the Rho plications Estimating Individual Re- is, ues of the tested. There individuals sults, 4 J. Stud. On Alcohol therefore, assuming no basis for (1983)). ‘Widmark’s Rho factor .68” is applicable

Widmark also determined the Rho fac- to all persons, appellant unless it including tor, which is the ratio of the concentration appli- that average assumed values are system alcohol the entire to the con- every cable to individual. to addition blood; is, centration alcohol fallacy assumption resulting from the the percentage of alcohol in the entire by average Rho value found Wid- compared body percentage alco- mark testing thirty as the result of Swedes hol in the blood. He used terms Beta (rate alcohol) applies Sweden Mata elimination of and Rho to County, pointed Bexar it must be out that develop calculating formulas for the total “Rho Widmark’s factor of .68” was ob- amount of alcohol eliminated from the by testing only persons tained con- who body and to calculate the amount empty Al- produce sumed alcohol on an stomach. person’s body that would though McDougall noted purpose eating BAC. No useful would be had by describing served before or affects a drinking formulas devel- while Widmark, oped absorption, apparently hap- since used rate of was unexplained py apply average own shorthand instead of persons, .19, about him a end of bothering giving .043 to without including appellant, .233, was about .25. out whether stomach not find time he during or full before or empty Obviously, McDougall appel- did not use drinking. But silence rates be- and elimination lant’s Rho factor of .68 concerning Widmark’s testified not know them. He cause he did signifi- perhaps to reveal the most failed testimony on what is that his was based fact ignore factor. He chose to cant “normal,” range that his was based Widmark, that of the 80 tested what he “hypothetical” average, on 65, had a Rho above 19 had a Rho below 8 drinking behavior.” No- “normal consider .70, only had a Rho between .65 and claim that his where did he ,70.7 Perhaps this. The he did know reported studies on what scientific based said average Rho drinking behavior. Unlike to be normal therefore, shorthand, in his secret he used in reports in the Manual and the statement most, of, at 10% of the descriptive studies, average speak he did not did, employ, persons tested. To studies, rates revealed those elimination than one- descriptive value of not more hypothetical average of a based but sample people tenth of the test to all the be normal drink- on what he considered to and, specifically, appellant, the world arbitrarily which he assumed ing behavior unreliable, completely and the conclusions drinking actual corresponded appellant’s Actually, the unacceptable. reached are behavior. arbitrary averages use of Widmark’s yield making all calculations would results during the trial on interesting It is which be correct fewer than 8 would range having merits he testified to persons out of a hundred.8 .13, a low end of high end of .23 and Manual, According average to the high and a end of low end of .12 or .13 (two per is .018 hour. elimination rate Since hours He added .04 about .25. ten be- elapsed hour) two hours and minutes to .19. per elimination at .02 tween arrest and the breath underlying his tri- Clearly, assumptions test, average require the use of would from the as- testimony al were different add about .039 to the he sumptions on which based this, revealed the test. If he did suppress. at the motion .229, high range end of his would be about by McDougall declarations Some other not about .25 he testified. If he used merit consideration. Beta, average elimination Widmark’s rate, hour, per he have added of .015 would “the situation agreeing After him a giving .035 to end about after the test peak if the occurs changes” .225, not, testified, .25. about as he about there would be a in that case because absorption depending different rate of

McDougall spoke of he described what of the individual “upon the circumstances elimination rate of .02. as a “standard” and what the amount of alcohol with “aver- equate Even we “standard” drink, and, perhaps, has had to it not use this rate age,” is clear did they when started drink- weight “stan- their consistently. If he had used his they drinking.” He rate, ing stopped and when he would have added about dard” Nichols, op. study is taken from are The observation 7. The details Widmark’s Nichols, 23.30, taken, cit, part, p. supported from the most Sec. LITIGATION, Secs. Simpson, Medicolegal De- Alcohol DRINKING/DRIVING citation of (1996). study was Widmark’s 36.06-36.10 34 Clin. Revisited. termination: Widmark computer- published in 1932. A in German (1981). Chem. 889 appeared generated English which translation apparently print. out of event, longer it is no available. agreed things that all of these peak drinking would cre- reach a after on a full or empty ate a absorption. different rate of stomach.” In considering McDougall’s statements It should not be overlooked that about the maximum any person can things he mentioned that would create a absorption stage, remain I will over- absorption” “different rate of correspond look the fact that he was not consistent exactly almost to the “circumstances” re- concerning the time during which a person lating of which igno- he was absorption phase could after the explanation rant. There is no of the fact last drink. A BAC would contin- that if the peak test, occurred after the ue to rise for an hour after the last drink rate of absorption, apparently re- and then peak. If a an person drank on mained constant during the two hours and empty stomach peak he would 30-45 test, ten minutes suddenly before the be- minutes. If he potatoes ate meat and gan fluctuating widely so that it would be before drinking, peak within GO- impossible to determine the rate of absorp- GO very minutes at the most. He has to tion if peak occurred one minute after peak in about hour. It takes between a course, peak test. Of if the occurred half-hour to an hour-and-a-half reach a test, after the it could not be assumed that peak on full empty stomach. If his appellant had eliminated alcohol between peak statements about the time takes to the time of arrest and the time of true, an interesting has created since, necessarily he would not have been situation, even if ignore we the fact that he eliminating alcohol for the two hours and doesn’t know when appellant had his last ten intervening minutes the ar- between drink. Assuming that he had his last rest and the test. This would mean there just arrested, drink appel- before he was “high therefore, could be no end” and no lant have peaked must 90 minutes after “range.” the arrest at the latest. So when McDou- gall by determined low end as- McDougall avoided these insurmounta- suming that appellant absorbing had been by ble difficulties completely eliminating alcohol for two hours and ten minutes after possibility appellant had peaked arrest, assuming his he was the existence by after the test declaring that no was, of what according testimony, to his person absorbing could still be alcohol two situation which possibly could not exist. If hours after his last drink. He did not McDougall is right, appellant would have “any know of person situation where a latest, necessarily peaked, at the 40 min- absorption would stage after an utes before the test. He had to be elimi- person just hour.” If a drank before he nating forty test, for minutes before the at arrested, his rising BAC would be for very most. McDougall’s calculation peak. an hour and then he would He based on no elimination the test before knows of “no situation where a would have no in fact. Appellant basis peak would after two If hours.” for, absorbing liquor would have been at having drinks after meal meat and most, arrest, very 90 minutes after potatoes, peak he would “somewhere eliminating only for- remaining hour-and-a-half, around an hour to an at ty minutes before the test. There is no very peak most.” “He has to in about way range McDougall’s low end of added, an hour.” He “Potatoes do not accurate, could be since it is based on potatoes dilute the alcohol more impossible facts. The same is true of the can dilute the alcohol He has [sic] [sic].” high appellant empty end. If drank on an persons stomach, tested thousands of and sec- [first- peaked, he would have at the ond-year college and in expe- very his students] latest 45 minutes after he arrest- rience, read, “with all ed, the studies [he has] or 85 before the test. He minutes it is longer between “60 minutes to 90 minutes to absorbing would at the time Blood Alcohol Determina- Hurst, Delayed 85 min- peaked of the test because had 2 Crim. Applications, utes before. He would not have been tion in Forensic time of eliminating for 130 minutes at the (1979) may (absorption Just. J. 283-84 been because would have ab- a peak). hours to reach up take 2½ after his arrest. It sorbing for minutes recog- calculations refuse true, course, extrapolation his absorption persons who have nize appellant, not be harmful to since sub- different an ex- from those used rates absorption time tracting 230 minutes of necessarily in pert extrapolation, his .19, figure up he came with a lower having erroneously high danger of than would have the case if he based been they were to them at the time attributed end on the basis the calculation of his low Duboski, Mason and driving or arrested. period of a shorter between Methods, Uses, Analysis, Breathr-Alcohol But, necessarily, high arrest and test. Forensic Problems-Review Some figure, end would have been lower than the (note). 9, 26 Opinion, 21 J. FoRensic Sci. .23, “about .25” or because either whether addition, that a In assumed elim- much figure adding resulted from too specific applied rate of elimination reality, the jury ination time to .19. testimony including have high persons, appellant. heard about a end of Studies figure may range but the fact remains that that that rates of elimination shown high. necessarily was too follows that per high from a low .004 hour to as that, at the time he was Frazola, per hour. DEFENDING arrested, appellant equivalent had the (1980). DRIVERS, If the DRINKING error, system fourteen drinks in ignores opts fact and for the expert figure since that was arrived at assum- a rate of elimination which application of ing that at the time of the test applies persons, to all assumes had min- eliminating alcohol for 130 extrapolation range suspect. end of his Actually, utes. record does since the assumes, erroneously expert If the drink, when appellant reveal had his last did, that all absorb or whether he had eaten before or while the same rate and eliminate drinking, any assump- there is no basis for rate, ignoring the actu- alcohol at same tion which he rates, variability al fact of as to both peak. reached his seriously re- cannot be contended that the say extrapola- did that his extrapolation sult is reliable. of his “looking possible peak tion he was at” all result, McDougall’s from One desirable In periods. view of his statements con- view, every that point insisting of his cerning longest might time it have or, at peak must within 30 minutes possible appellant been it is peak, drink, latest, 90 after his last minutes patent considering that he was not assumption that this indefensible elimi- possibility appellant peaked that after the necessity facing problems nates the statement that all the “studies” test. His rate of which would he has read show that it from 30 to takes peaked after appellant be faced if that peak 90 minutes reach a reveals course, impossible it is breath test. Of selective. He reading has somewhat peak, time of since the time of determine Dubowski, missed Alcohol Determination: But we last drink is unknown. and Metabolic Con- Physiological Some arrest, and use of that siderations, do have the time AND TRAF- ALCOHOL (1963) ap- in a determination that SAFETY, figure results (anywhere FIC from earliest, 100 minutes hours); pellant peaked, at the 30 minutes to three Gerald J. Don- or, latest, 40 minutes nellan, before the test at the Driving Alcohol: with 0.10% Blood case, It?, In either McDou- FRAN. L. before test. Can the State Prove 16 U.San which, 817, (1982), gall’s figures refer to a situation and Radlow and Rev. following paragraphs sup five are testimony, possi- according to his could not heading by the discussion under ported end is based on the bly exist. His low Consumption” in 1 ENCY “Alcohol peaked at the assumption appellant that BRITANNICA, 443-45 CLOPEDIA minutes time of the which was 130 (15th 1977). ed., diligent prosecutor A after the arrest. was not harmed that

would insist general The universal functions error, on the since a low end based drinking great variety in a displayed are appellant peaked impossible situation and customs in different countries ways after the test would result 130 minutes among subgroups various subcul- high figure too from the test subtracting when, what, much, Whether, how tures. beneficial to result of which would be where, will whom a drinks with it would show a BAC appellant, since taste, predi- only person’s on a depend which was lower the time of arrest lection, need but also on psychological have been. It would also what should sex, age, neighbor- residential any error on insisted that associations, hood, education, church and credibility affect part would socio-economic memberships admissibility. Both of testimony, not its States, where more In the United status. point which is arguments ignore these drink, do not the better than 25% of adults figures If the before us. are economically advantaged educated and fact, show have no this would used basis poor, than the likely more to be drinkers drink, knowledge has no of the scientific that he do although among poor who or of theory supposedly relied heavy higher. drinkers is proportion hand, technique applying France, the correct on the other abstainers that be- theory, demonstrating likely among as well as more to be found cor- ignorance, upwardly he did not mobile. cause of such educated and better technique. the valid His er- rectly apply based on comparison A of 25 countries three ror forces the conclusion showing types of figures available latest theo- proof of valid Kelly requirements and the actual beverages consumed application ry, technique, valid and correct each, shows amount alcohol have not been technique, of such valid the list terms of Italy France and head to meet This failure State satisfied. being wine consumption, with in a Kelly requirements must result country, in each with dis- favorite drink merely a inadmissibility, not finding of being ranking high and beer spirits tilled credibility of the reduction in the possible favor wine also the least favorite. Italians McDougall’s error holding A witness. liquors ranking second with distilled impossible with- only credibility is affects thir- ranks third. The United States beer er- Kelly decision. Such ignoring out consump- of total alcohol teenth terms knowledge. lack of ror establishes highest ranking has the second tion but and medi- spirits, for distilled preference consider, and necessary to is also ranking, respectively for beer um and low calcu- evaluate, McDougall’s of his defense wine. and “parameters” being lations as based on Italy pref- France and Although in- both “hypothetical” a he described as which high, attitudes as well erence for wine is drinking pattern.” with “a normal dividual countries in the two patterns at- differ out that he made no pointed I have country there In are many ways. neither obviously indispensable tempt to define regional popula- among term, pat- patterns drinking consistent magic and “normal groupings. tions and socio-economic this lack of defini- tern.” The reason for countries, Among the Scandinavian There is tion is not difficult to determine. daily drinking or not one of pattern a determines what study no which reliable meals; rather, there is drinking with is. drinking pattern” “normal of a busi- by McDougall], studied members heavy drinking special on weekends and convention, armed members of the England In and Ireland beer is ness occasions. services, kind of guests special and the the fa- at a pub the favorite drink then, expected function. Even place drinking. vored social drinking probably are way and amount of Drinking patterns in the United States background. by modified an individual’s subjected have to more formal exami- drinking- a situation where Even within countries, than in studies nation but institutionalized, as even drunkenness-is mainly segments focused on of the have row, patterns are on skid differences population regarded prob- as sources observable. offenders, lems, alcoholics, such as traffic circumstances, criminals, hospitals, or In of these it inmates of mental view parame- youths, specially, McDougall’s as is true of difficult to find that studies, sys- drinking any mean- pattern-has students. The results of the ter-normal Clearly, could not be refer- ing tematic studies in the United States indi- at all. knowledge drinking patterns pattern typical ring cate that there is no to his Instead, people five in the world. among nation as whole. the studies billion variety patterns vary among reveal a differ- drinking patterns customs Since it brought by repeated groups country’s population, over of immi- ent of this waves grants places different and of diverse must concluded that there is no univer- be stocks, intermixture, ethnic that can considered by drinking pattern modified sal circumstances, person. economic circum- political applicable particular stances, finding emergence indigenous supporting There is evidence ways. justified. talking pattern Some conclusions are that he was about a On belong. men average, substantially group appellant might drink more to which adolescents, Among than women. persons patterns about The two thousand whose boys girls 57% of and 43% drink. These he studied were those to whom he drinks, percentages rise and it age, appears experience with served so persons group may limited to His 25-29 constitute his students. studies the highest proportion embody pattern of drinkers. As valid conclusions as to a they age, year continue to among college more first and second stu- dents, country validly Among they applied become abstainers. drink- but cannot be ers, pres- beer tends to drink to the preferred everybody without reference many of men and of factors unskilled and blue collar ence or absence In spirits preferred by workers. Distilled influence and elimination. fact, upper they corre- middle class men wom- the amounts drank did not en, especially drinking patterns. in the form of drinks. their spond mixed drank, drank, good drinking they they A deal of amount what how place takes home, etc., drank, although commonly they with fast was determined most meals, bartender, parties, especially McDougall. and on at cocktail parties-more specifically leaving on work heavy I impose realize evening and before the meal. and, prosecutors perhaps, even burden judges general, styles experts, and customs of drink- on forensic not to mention gatekeepers, eth- ing geographic attempting are influenced who are to act as opinions backgrounds, experts nic but Americans tend to be to insist that base their societies, and, are, least, likely multiple of on which at more members small facts extent, specific drinking applicable to some differs within than not to be to the question. By in People each of these societies. from di- whose condition is nature, and “stan- origins may very “average” verse drink alike when bound their association, by dard” rates or values do not meet this test. together special some convicted collegians group apparently The rule that no shall be [the fellow 32 State, (Hartman 2), (Tex. 2 except upon

of a crime sufficient evidence S.W.3d requires 1999, filed). certainly proof that the State’s App. pet. Antonio In — San individual, specific the focus on and not on Míreles, appellant’s driver’s license was or, worse, general population averages, on suspended by an judge administrative law values, rates, or which are characteristics TRAnsp. pursuant to Tex. Code Ann. arbitrarily categorically selected as- 524.035(a)(1) (Vernon 1999), § per which persons. applicable sumed to be to all At on suspension proof mits such that the least, standards, very the averages or person a motor on a operated pub vehicle arbitrarily selected characteristics should highway lic at a time his BAC when was to, least, applicable be shown to be most higher. Appellant .10 or reversal sought persons the persons of or the the same license, of the judgment suspending his class as the whose individual condition arguing that there was no evidence that may If conduct be in issue. even such a his in excess of at the BAC was met, relaxed standard of is not the proof was driving. The San Antonio Court evidence irrelevant and inadmissible. In judgment suspicion affirmed of rehearing, showing, the absence of a no such there is by a vote of 4-3. theory for holding basis that the and the The officer Míreles arresting stopped technique ostensibly being by relied on the exceeding because limit. speed he was case, expert are In reliable. this there is officer testified Míreles smelled standards, averages, no evidence that the (ineidently, of practically alcohol alcohol rates, values, or other or characteristics on odorless, and what an officer smells on based, extrapolation except, which the of person stopped breath of a the smell elimination,” perhaps “standard rate alcohol, ingredients, besides which in fact to most applicable persons, were intoxicating used in The offi- beverages). fact, nor, one member of the cer further testified Míreles failed rates, group whose values and characteris- sobriety field tests. an hour after About tics resulted in determination test a arrest breath revealed BAC average. McDougall egregious committed more There than .10. 993 S.W.2d at 431. adopting avenge error Widmark’s Rho no ex- making applicable persons retrograde evidence based on fact, although, applicable it was to no trapolation. persons more than 10% the tested majority opinion held that stat- face of such showing Widmark. evidence, extrapolation ute did require apply McDougall’s willingness averages result that the test one hour after or, people, complete ignorance to all arrest, considered in connection with when disregard, concerning least number arresting officer persons particular average ap- to whom a Míreles of alcohol and failed smelled plies, there is upholding no basis sup- sobriety field sufficient presumed by the finding gatekeeping port had a BAC the inference Míreles

judge averages the other hour driving he was one excess when were, applied appellant before the test. rates, fact, appli- values or characteristics even majority people cable to by noting The majority opinion begins world, majority or to even se per that where the relies on the State to which be- class of intoxication, proof definition of the State’s longed. form of a “normally” appear will in the showing “chemical test the alcohol concen- My requires conclusion discussion body, the time of tration in a near previous en banc decisions the offense.” 993 S.W.2d at 429. Presum- Dept. court Mireles v. Texas Public ably, say Safety, opinion was intended (Tex.App. S.W.2d — San con- only gives-the v. test pet.), Antonio Hartman

33 it described body] in vant scientific literature [not centration blood determining in at the of the not at the time roadside test most efficient there is interpreted, consumption of the offense. As so result of impairment as the quarrel with the statement. alcohol, reason not admissible as that was but in evidence the existence of BAC that, majority opinion giv- concludes of .10 at the time of offense. excess en the of the test one hour result arrest, after the the inference that Míreles Despite holding, the Emerson the Mí- had a BAC in excess of .10 at the time he drawn opinion, relying reles conclusions in driving was was reasonable view of the by appellate judges qualifica- whose testimony concerning officer’s the smell of are, at experts tions are not shown and sobriety alcohol and the result of the field doubtful, best, somewhat concludes tests. well perform that the failure of a driver to tests, sobriety none of which opinion clearly propo- stands for the on the field sobriety result reliability sition of the field has been shown to have the evidence, supports tests is some test as evidence of alcohol-im- HGN conclusion that the later breath test cor- pairment, only impair- is not evidence of rectly ment, shows the alcohol concentration in of a but is also some evidence BAC In my the blood one hour before the test. .10. excess of holding opinion, cannot stand view why There are other reasons Míreles of the decision of the Court of Criminal controlling should not be considered as State, Appeals in Emerson v. 880 S.W.2d authority in this case. Here (Tex.Crim.App.1994). sobriety declared that the field tests were testimony Emerson concerned the of an intoxication, not indications of be- reliable training officer who had special received perform cause the failure of a driver to tests, sobriety the administration of field well in those tests could be caused including gaze nys- the test for horizontal many than intoxication. The factors other (HGN). tagmus Highway The National did not the benefit of court Míreles have (NHTSA), Safety Traffic Administration testimony. Nor was the court’s at- such a 1992 publication, Improved official Sobri- called to the fact that the Manual tention ety Testing, which the Court of Criminal reliability lack of of the recognizes the cited with Appeals approval, said that the tests, 5-18). McDougall sobriety (p. field “single, HGN test is the most effective here, Míreles, testify in as he did did not sobriety field in determining test whether result that the evidence an individual is impaired.” was the of the of the breath test BAC at 766. The also conclud- S.W.2d NHTSA test, and at the time of the person tested ed that the result of the test was reliable gives that the result no clue showing that the had a person tested other time. BAC of in excess of .10. held that BAC The Court poses very inter- The Míreles decision testify concerning the officer could the re- 1, In Hartman the Court esting problem. sult of the test as evidence of the fact that testimony held that Appeals of Criminal “alcohol-impaired,” was but that driver retrograde ex- expert witness based on testify not that the he could result subject an- trapolation was to the rules test showed a BAC excess of be- in Kelly concerning expert nounced testi- qualified cause he was not to draw State, mony. Hartman v. 946 S.W.2d conclusion, despite training, and be- (Tex.Crim.App.1997). reliability as an indi- cause the of the test Míreles, expert held that of a in excess of .10 had not this Court cator required, and that scientifically Id. at 768- established. nec- that a fact could make the inference holding simply 69. The field trier of concerning the essary finding make a because rele- sobriety test admissible 34 at to the testified that defendant’s BAC the time prior

defendant’s BAG breath test. is, effect, .110 and stop 993 at 429. This was between .15 S.W.2d If knowledge McDougall with .16. Id. his low holding that no based end can, test, without reference to scientific the- .11 on the of the 12.36 a.m. result ory, technique, application valid or correct absorbing assumed that defendant was al- technique, unknown valid based on per cohol at almost .04 hour the rate of result, infer test the defen- breath during the 41 minutes which intervened previous dant’s BAC. We know that this If he stop between the and the test. based court process, although the did not men- test, his the 12:39 a.m. low end on it, commonly retrograde tion known as absorption. assumed lower rate Since if, majority, extrapolation. Míreles absorption he did not rate of declare what fact, actually it realized what was hold- possible guess using, he was this is one ing, 1. A inter- ignored Hartman rather it is concerning the rate he used. Since opinion of the Míreles is that esting result which expired based on actual time expert testimony concerning retrograde test, it is the most arrest and between admissible, since, is not ac- extrapolation logical. Unfortunately, rely we cannot on Míreles, ordinary laymen with cording to it, that the McDougall because 11:55 stated just can do it as and such training well report p.m. which the officer’s shows as jury. testimony help will not the time of arrest could be “rounded off’ 2400, an interval give which would of 36 and 1 In view of the Emerson Hartman minutes, figures actual 41 instead of the opinions, the evidence in this case that and minutes, and 44 rate of reliable, sobriety tests field course, would, different. He used controlling here. Míreles is not end then said the low of his he believed a case which Hartman or, of “about .11” range would show a BAC extrapolation retrograde on was of- based -.12 and higher “a little .16.” perhaps, McDougall, same fered who If first test McDougall used the us. testified in the case before 946 S.W.2d then end extrapolation, in basis low Munzy stopped at defendant 61. Officer assumption that 8, 1992, of .11 was on the night July San based Antonio on absorbing during the defendant was driving because of erratic lack of tail- lights. eyes of 36 minutes a rate intervening period Id. Defendant’s were blood- possible His other per shot and his smelled of almost .05 hour. “glassy,” assumed ab- Munzy Id. low end of .12 shows he strongly of alcohol. adminis- (HGN, sorption per hour. sobriety field tests Rom- rate of .03 tered four turn). stand, berg, and walk one-leg .15, If a BAC of high end was based tests, Id. “failed” all four Defendant minutes, of 41 on the actual time elapsed driving him for with- Munxy then arrested an elimination assuming liability license or in- out a valid driver’s hour. The other per rate of than .02 less him to surance and “took the station on the possible high end of based July At a.m 11:56 Id. 12:36 12:39 p.m.” minutes, is of 41 based actual interval Intoxilyzer tests defendant was per rate at least on an elimination .03 Munzy. Id. Both tests revealed BAC chosen elapsed hour. Using .138. Id. minutes, of .15 was time of on rate of almost .02 At based an elimination hearing time of the on defen- hour, can considered the extrapola- per suppress motion to dant’s elimination was, equivalent his “standard” in the testimony, tion us, possible .02 The other per rate of hour. County’s case Bexar Breath before assumption on the high end of .16 is based and was co-author of Supervisor Technical that, minutes which McDou- the 36 during Id. Based the BAC Manual. extrapolation, defen- gall used in his the breath revealed and absorption affect eliminating rate of more of the factors which dant was at the elimination. per than .02 hour. that, as universally accepted It The Hartman 2 record shows that Mc- 2, in Hartman intake McDougall testified yielded pos- several extrapolation

Donald’s drinking, or while of food before (1) ranges. were end of sible These low Yet, McDou- absorption. rate of slow the (2) .15; .11 high .11 and end of low end of fin- just if Hartman had gall testified that (3) .16; of .12 and high and end of low end stop, at the time of the a full meal ished (4) .15; low end of end .138 on forty registering minutes before ranges calcu- high end .16. These were time of the Intoxilyzer, his BAC at the .03, by using absorption lated rates of certainly between stop “would most be .04, hour, per and almost .05 almost Id., If possible at 492. 0.12 to 0.15.” .02, rates of elimination of about more than .12 apply low of .11 and without refer- ends in per excess of .05 hour. Hartman had eaten or ence to whether 2, us, Hartman in as the case before not, McDougall’s shows there is no evidence that had theory on the statement was based knowledge concerning the defendant’s speeds of food in presence the stomach rates, actual absorption and elimination it, is, up or has no effect on absorption is, he did not know how much alcohol have the same that the low end would defendant had absorbed or eliminated Hartman had eaten or not. This whether the 41 minutes between and test. arrest cannot true. be matter, For that ignorant he was as testimony in Hartman these matters when he chose base his testify concerning that he could Hartman’s an extrapolation elapsed on time of 36 stop BAC at the time of the because minutes rather than the actual 41 minutes. training concerning the effects of alcohol car;” person’s ability “safely on a drive a It should not be overlooked study of much alcohol it takes to how Hartman us, as before case body reach a “based on McDougall was forced to assume that of “over weight;” his observations whatever or elimination rates 2,000 complete drinking going through in arriving ranges used at his various taught Antonio cycle classes San true, applied persons. may to all It as College Junior over the last seventeen Hartman 2 opinion, majority stated which the years.” “qualifications,” These question that the all ex- “is whether Hartman majority “impec- described as perts would reach the same numerical re- cable” deserve comment. sult McDougall,” but whether “his testi- mony sufficiently training concerning relevant and reliable 1. His the effects jury ability on a to drive is person’s aid its deliberations.” But of alcohol expert point. everyone, this does not mean that the witness Almost with- beside knows, on persons special training, can assume that all absorb and out based mere observation, of alcohol on a eliminate alcohol at the same rate when effects Alcohol, if overwhelming experts ability safely. to drive majority person’s on alcohol, quantity, in- consumed in sufficient will cer- absorption and elimination of mental and cluding tainly impair person’s co- normal Manual which authored, an extent that he agree physical that this is not true. faculties such course, This, safely. an who at- is unable to drive expert does not mean that of “intoxication” an based is one of the definitions tempts perform extrapolation elimination, per- But the fact absorption and can correct- the Texas statute. of that intoxicated is no indication ly extrapolate ignorant, when he is as son is anymore than the specific BAC confessed he as far as HGN, concerned, may while it practically presence Hartman was impairment Therefore, consump- indicator of due to the result of the test in way alcohol, is tion of depends reliable indicator of weight on the person test- specific BAC. fact that not all persons ed. The same amount of alcohol impairment suffer at the same BAC is yield will same BAC without clearly recognized in gener- the use of the weight reference to the giv- idea ally accepted that some “hold ing sample. weight the test Since their alcohol” better than others. Knowl- being whose breath is tested is edge of the effect alcohol on driving of is irrelevant, completely the machine is not qualification showing ability per- no an to is, weight report “told” what the and the extrapolation requires form which a knowl- the weight. test does not mention The edge absorption elimination alco- particular person may depend BAC of a (In us, hol. the case before weight, knowing per- but impairment place testified takes when son’s no gives BAC indication of his .08). is BAC weight. study 2. The of “how much alcohol it accept Even if we McDougall’s claim takes to reach a given” BAC “based on machine the takes into account the body weight” has if the expert no value subject’s irrelevant factor of weight, the know body weight does not of the ability McDougall’s to determine how prior whose in question. BAC is much produce alcohol it takes that he admission did not completely would irrelevant weight Hartman’s body know makes this aid to extrapolation. simple The fact is irrelevant, special training if in fact it is that, despite superior knowledge all in help performing extrapolation. acquired he claims the machine some Intoxilyzer His statement machine way unknown “already Hartman’s used for breath test accounts weight, no subject’s there is evidence that ma- weight” for the is body amazing. knowledge The material Manual chine transmitted which sets this steps by forth the taken the person McDougall. performing test makes breath no men- over.2,000 Observation students body weight. questions tion of in the years college first and second signals which the machine asks do not going cycle through complete drinking body concern weight. information regaining intoxication sober con- operator type

which the must does not qualify per- dition does not body weight. include The result of the form retrograde extrapolation. He “ob- prints test which the out machine does not youngsters served” these while he was is, body weight. fact, mention There most, acting very as bartender. At the why the body reason machine need take him give knowledge some con- weight into account. The most obvious students, cerning college and there is no way reason is that there is no for the Hartman opinion, in the 2 evidence “know” body weight machine to record, Hartman 2 in the or in evidence being whose breath tested. The justifies the scientific literature which at- beaming light rays machine functions tributing reaction of freshmen and sample container which contains a sophomores people to all the person being breath of the tested. The people McDougall world. The ob- light rays presence blocked getting served drunk as a result of his alcohol, amount of alcohol present bartendering watching them testing up sober determined chamber rays regarded representative cannot be light the amount which are is, That of the en- reported population, blocked. entire nor even BAC de- addition, pends solely drinking population. on the amount of alcohol in tire subject’s and nothing testimony merely else. that he observed shows bility rates and to the numerous them. There is no evidence that he sub- of those blood, breath, which influence such rates. jected them to various factors did, Widmark, majority the Hartman e.g., significant urine tests as in order opinion suggestion their contains not even a to determine rates of which it Further, technique the nature of the valid elimination. the record does not Both the trial says McDougall applied. disclose whether the students drank on majority stomachs, court’s they full court and the San Antonio empty or whether of an type intoxicating liquor application assumed opinion simply drank the same technique, much as intoxicating beverage or an which had the identified but valid assumed, applica- the universal beverage McDougall same alcohol content as the rates he used. night ques- bility Hartman consumed on the of whatever tion. per- Neither Hartman nor Míreles is far as con- teaching

As his statewide suasive. cerned, only taught evidence is that he I Because do not believe McDou- Intoxilyzer. his students how to use the “sufficiently gall’s testimony is relevant There no evidence that teaching such jury reaching rehable to help required knowledge or elimi- under the test announced accurate results” many nation rates or of the factors which in I trial court Kelly, would hold influence such rates. in admitting McDougall’s erred majority opinion The Hartman rec- judg- reverse the trial court’s ognizes admissibility of the evi- ment. in question depended proof dence of a theory technique ap-

scientific for its

plication which are both valid and that technique properly applied.

such valid theory

Since existence of a valid and a technique

valid for application its were not court,

before the the conclusion of admissi- bility necessarily finding based on a WITHROW, Appellant, Michael Jon properly applied that valid technique. majority held that he did. v. evidence that case concerned SCHOU, Appellee. Alba Rosa technique McDougall applied which No. 14-97-00492-CV.

which, mentioned, already required assumption false that all absorb Texas, Appeals Court of and eliminate alcohol at a fixed assumed (14th Dist.). Houston rate. Evidence of what did is 2, no evidence that what Dec. 1999. he did conforms any way technique applying to the valid Rehearing Overruled Feb. theory. the valid scientific The court’s technique conclusion technique used was a proper any

not based on evidence technique, nor on reference to

valid literature that the val- suggesting

scientific technique absorp-

id assumes that a rate of elimination,

tion and rates of whatever be, may applicable rates to all

those absolutely with no consideration

persons, universally recognized to the varia-

Case Details

Case Name: Mata v. State

Court Name: Court of Appeals of Texas

Date Published: Nov 30, 1999

Citation: 13 S.W.3d 1

Docket Number: 04-94-00099-CR

Court Abbreviation: Tex. App.