IOWA ASSOCIATION OF JUSTICE Criminal Law Seminar
RETROGRADE EXTRAPOLATION
CRIMINAL DEFENSE PERSPECTIVE
James T. O’Donnell PharmD MS FCP ABCP
Associate Professor of Pharmacology
Rush Medical College – Chicago
Pharmaconsultant Inc. – Barrington, IL
Alcohol Fatalities
• Of the 42,836 motor vehicle traffic fatalities in 2004, there were 13,099 (31%) people killed in alcohol-impaired-driving crashes where at least one driver had a BAC of .08 g/dL or higher).
• Of the 32,719 motor vehicle traffic fatalities in 2013, there were 10,076 (31%) people killed in alcohol-impaired-driving crashes where at least one driver had a BAC of .08 g/dl or higher.
NHTSA IOWA STATISTICS 2004 & 2013
• 13,099 v. 10,076 Alcohol related deaths US• 380 V. 317 MV FATALITIES Iowa• 22% > 0.08 BAC 2004 & 2013 • Surviving Drivers with know BAC 33% v. 29%• 29 million people admitted to driving under influence
in 2012 (National) - MADD.ORG• 3000 drive impaired / 4000 arrested for DUI (FBI/2013)• 290,000 Injured in Drunk Driving Crashes (NHTSA 2014)
• NHTSA Traffic Safety Fact Sheet "2013 State Alcohol-Impaired Driving Estimates" (DOT HS 812 188)
DEFINITIONS IN PHARMACOLOGY
• PHARMACODYNAMICS – WHAT THE DRUG DOES TO THE BODY
• PHARMACOKINETICS – WHAT THE BODY DOES TO THE DRUG
– ABSORPTION
– DISTRIBUTION
– METABOLISM
– ELIMINATION
RETROGRADE EXTRAPOLATION
• Process of estimating a BAC at an earlier time from a measured BAC at a later time.
• LOOKING BACK
• Clinical Pharmacokinetics involves ‘looking forward’, ie, predicting blood levels based on patient and dosage parameters
• Prosecutors are using Retrograde Extrapolation
RETROGRADE EXTRAPOLATION
“The most important parts of the drinking history for purposes of retrograde extrapolation are alcohol consumption in the hour prior to the offense”
John Bobo
Director, National Traffic Law Center
American Prosecutors Research Institute
Alcohol Toxicology for Prosecutors, APRI
RETROGRADE EXTRAPOLATIONUSEFUL INFORMATION
• TIME OF THE EVENT DRINKING HISTORY
• TIME OF THE TEST # DRINKS
• TEST RESULT SIZE OF DRINKS
• GENDER/WEIGHT ALC % OF DRINKS
• FOOD CONSUMPTION TIMING OF DRINKS
Information for Extrapolation
• Weight of defendant
• Amount EtOH consumed (# & Vol of drinks)
• Type of alcohol consumed (beer whiskey, wine)
• Start and stop times of drinking
• Food, type of food, time of eating
• Drinking method
www.jakelaw.com
Case Law
• CUELLAR v. HOUT
• 168 Ill. App.3d 416 (1988)
• 522 N.E.2d 322
• Petraski v. Thedos,
• 382 Ill. App. 3d 22 (2008)
• People v. Floyd, 2014 IL App (2d) 120507
• State v. Eighth Judicial District Court, 267P.3d 777 (Nev. 2011) (Armstong).
PEOPLE V FLOYD
“…since many factors must be considered to make such a calculation reliable, and in defendant’s case, a “big assumption” was made that defendant was eliminating alcohol when she was given a breath test, several relevant factors were not considered, the State’s expert admitted he was unaware of many factors necessary to determine whether defendant was eliminating alcohol, and, under the circumstances, the calculation made in defendant’s case was unreliable.”
State v. Eighth Judicial District Court, 267P.3d 777 (Nev. 2011) (Armstong). (discussed in Floyd)
FACTORS REQUIRED CONSIDERATION(1) gender; (2) weight; (3) age; (4) height; and (5)mental
state; (6) the type and amount of food in the stomach; (7) the type and amount of alcohol consumed; (8) the time the last alcoholic drink was consumed; (9) the subject’s drinking pattern at the relevant time; (10) the elapsed time between the first drink and the last drink consumed; (11) the elapsed time between the last drink and the blood draws; (12) the number of samples taken; (13) the elapsed time between the offense and the blood draws; (14)the average alcohol absorption rate; and (15) the average elimination rate.
Case consultations
• Always have expert
– interview defendant – clinical interview by expert
- video and audio transcripts – sometimes best evidence
- Credit card receipts of purchases
–Witness corroboration of alcohol consumption
Case 1 Dubuque County
• Driver of truck pulling horse trailer strikes ATV and kills 4 teens
• Late breakfast
• Alcohol consumed 12N to 1245
• Crash at 115pm
• State expert extrapolated > 0.10
• JOD Expert – Alcohol absorbing at Crash, extrapolation invalid/ calculated BAC
Case 2 Mississippi River Boating Accident
• Two boats crash in dark in early morning
• Both boats in same party
• Operator HBD
• Drinking continued until the time of the Crash
• BAC at 2 hours post extrapolated by State
• Invalid extrapolation
• BAC calculated by this expert - history
Case 3 Mercer County, IL
• 40 y/o farmer
• Drove pickup to town, stopped for no seat belt
• 2 previous hours at tavern, finished last beer 10 minutes before traffic stop (police report)
• (RPBT) Breath test 60” 0.09 BAC. State extrapolated to 0.108 (one hour elimination)
• JOD – BAC RISING AT TRAFFIC STOP –EXTRAPOLATION INVALID – likely below 0.08 BAC at traffic stop Case Pending
Case 5 Kankakee County, IL
• Sunday afternoon Harley touring – tavern to tavern
• Bartender at Bar 2 described the amount and type of alcohol consumed by defendant –finished 10” prior to crash
• Legal Blood Draw – 0.109 BAC 2 hours post• State expert assumed post absorption and
extrapolated to 0.140• JOD testified extrapolation invalid; calculated
0.075 BAC achieved from consumption 1 hour PTA Reckless Homicide/AggDUI dropped
CLOSING COMMENT
• DAUBERT HEARING CHALLENGING O’DONNELL’S ABILITY TO COMMENT ON DRUG IMPAIRMENT EVALUATION
• “WHAT GIVES YOU THE ABILITY ….THE DRE OFFICER WENT TO SCHOOL FOR 7 DAYS”
• O’DONNELL “I WENT TO SCHOOL FOR 7 YEARSAND HAVE 40 YEARS EXPERIENCE EVALUATING DRUG EFFECT”
• JUDGE WAS LAUGHING AT PROSECUTOR
