Tuesday, May 6, 2014

But, really, I'm just guessing here . . . .

State v. Nugent, 2014 VT 4

By Scott R.Williams

Sometimes it is the briefest of decisions that provide us the most fodder for our opinions.


Today’s decision by the full Court is barely a few pages long, yet addresses an issue vexing to many a defense attorney. It involves Vermont’s statutory scheme for “civil suspensions” in the context of DUI allegations.

Vermont has two statutory bases for the State to obtain a court-ordered suspension of your license for “driving under the influence.” The first, and harshest, is the criminal conviction. The second is the civil suspension. The first is harder to prove (as the State must be able to prove “beyond a reasonable doubt” that: (1) you; (2) operated a motor vehicle; (3) on a public highway; (4) while under the influence of alcohol or drugs).

In the civil-suspension proceeding, however, the State need only prove that you had a blood-alcohol content (BAC) of .08 or more within two hours of operating a motor vehicle (there are different standards and consequences if you refuse to provide an evidentiary breath sample, but that is not the subject of this story). The civil suspension “deck” is generally very much stacked against the driver, since it is not a criminal proceeding and therefore, there are no “liberty interests” at stake. Or so the courts have long claimed.

The scenario for a DUI civil suspension is fairly simple: Driver is typically stopped for some moving violation, or police respond to the scene of an accident (as occurred here). Officer notes signs of impairment. This leads to arrest, which leads to the “implied consent form,” which leads to the opportunity to speak with an attorney, which, more often than not, leads to the driver “blowing” (giving a sample of breath which is then analyzed by an infared breath testing device).

But the facts surrounding either the defendant’s claimed drinking pattern or the arrest and processing, or both, lead to some amount of “wiggle room” as to whether or not the driver’s blood-alcohol level was “at or above” .08 BAC at the time of operation. For example—What if police respond to the scene of an accident, but no independent witness can say what time the crash occurred, or when the driver last consumed alcohol? And what if the driver says “I crashed 5 hours ago, and I drank a fifth of vodka after I crashed”?

If the State perceives that “wiggle room” exists, the prosecutor will call an “expert” to render an opinion of what the driver’s BAC was at the time that they were actually driving (I’m leaving out an explanation of certain statutory requirements and/or presumptions that relate to this issue, to keep things simple). The “expert” then relies on certain assumptions to reach an “opinion” as to the driver’s BAC at a particular point in time (which, of course, coincides with the time that the State claims the driver was last in control of the vehicle). Among the various problems such a fact pattern raises for defense attorneys is the use of an “alcohol elimination rate” of .015 percent per hour. The State’s experts tell us that this rate is an “average” rate of elimination, and that, in fact, it is to our client’s benefit that this rate is used, since, actually, many people eliminate at a somewhat faster rate (which would mean, theoretically, that your client was maybe a .187 BAC instead of “only” a .172, as the “expert” opines in Nugent). So the expert, being a just and reasonable scientist, errs on the side of caution as they nail down the driver’s civil suspension and/or criminal conviction.

But, among other things, since when is good science based on being “reasonable?” And is it a “mean” average or a “median” average? And what characteristics lend themselves to a person being above or below the average? And how much above or below the average could one’s elimination and/or absorption rate be? And if you are not average in either, how does that impact the calculation? Science is supposed to be hardnosed and blind to all but hypothesis proven by repetition and elimination of alternate explanation.

Yet, according to the literature reviewed by this writer, there have only been a very small handful of actual studies conducted in which alcohol absorption and elimination rates have been tested and observed. And worse, despite caution from the authors of the seminal studies, in Vermont, the State-salaried experts generally will testify that “variables” are irrelevant. So, many defendants have tried, and failed, to convince a judge that the basis for the State’s expert’s opinion is such that it should not be relied upon by the Court. The argument has, generally, fallen on deaf judicial ears.

Until this case. Here, witnesses actually watched Nugent drive a truck off the road, whence he and the truck were “flung” across someone’s yard, with the truck landing on its side in water. The officer opined that Nugent was “moderately” impaired at the time of the officer’s arrival. For reasons not addressed in the opinion, Nugent provided a blood sample rather than the more “typical” breath sample.

Because police obtained defendant’s BAC more than two hours after the time of operation, the State was required to prove through relation-back evidence (that’s the expert testimony referred to above) that defendant’s BAC was over the legal limit while he was driving.

The “expert” in this case simply conducted a math class, informing the court that if a driver was in control of a car at time A, and the driver’s blood alcohol concentration was X at time B, then the expert can calculate that driver’s blood alcohol concentration was Y at time A- with Y being a number above .08.

But the trial court had problems with the bases for the expert’s calculations. The Supreme Court quoted the trial court judge regarding the value of the expert’s testimony as follows:
If 0.015/hr is one rate that occurs on a spectrum, what is the full variation of the spectrum, and where on that spectrum does 0.015 fall? Is it just barely below the mean, so that 51% of people eliminate faster than that, or is it toward the end of the spectrum so that 95% of people eliminate faster than that? Alternatively, if elimination rates used by other experts were applied to the facts of this case, would they also show that [defendant’s] BAC was 0.08% or more at the time of operation? While [the expert] may have credible answers to these questions, the answers were not elicited at the hearing.
Exactly, trial judge—exactly. How can an expert, under oath, ask a court to rely on a scientific process when the expert cannot, or does not, explain the variables of the science and how they are scientifically resolved as to a particular subject? The logic equation would look something like this “if a lot of people, statistically, would end up at this BAC X, then this driver must end up at this BAC.” Yet, as the judge noted—how can a judge find against a particular defendant when the expert is only providing general information?

So now, the analysis: The SCOV begins by quickly dispensing with the State’s attempt to obtain “de novo” review of the trial court’s decision. This is shot down in one paragraph, and the court informs us this is an “abuse of discretion” review of the trial court’s fact finding.

The SCOV reasons that the trial court’s determination that the “expert” had no “scientifically principled way of distinguishing between her assumed elimination rate and different elimination rates offered by other experts in the field” was a valid finding based on the evidence.

And in a “let’s be clear what we are saying here” moment at the end of the opinion, the Court writes:
[T]he expert offered no credible reason why her assumed elimination rate was reliable as applied to defendant, nor did she testify as to the likelihood that defendant’s BAC was below 0.08 while driving. Given these gaps in the expert’s logic, the trial court’s reliability finding was not error, much less clear error.
And that’s the truth.

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