Is a Retrograde Extrapolation in DUI Cases Reliable?

Any DUI attorney in California worth his salt knows that prosecutors will pull out a bag of tricks in order to get a conviction.  One of the most common arguments used by the DA is that of Retrograde Extrapolation.

In many DUI trials the district attorney will ask the state’s expert to perform a retrograde extrapolation from the defendant’s blood test results to determine the defendant’s blood alcohol at the time of driving. Although the prosecution gets the benefit of a "3 hour presumption" that the chemical test is a true reflection of the defendant's BAC if they were driving within 180 minutes of the test, most DA's will try and guild the lily by bringing in this often very prejudicial evidence.

However, this area of science is fraught with reliability issues.  The criminalist doing the “retrograde extrapolation” calculation must know, among other things, that the test subject is in the “eliminative” phase. Thus, a criminalist cannot do a valid “retrograde extrapolation” without a drinking and eating history.  There is scant scientific literature or case law that supports a “retrograde extrapolation” when the expert or person performing the calculation does not have any of the following factors: (1) when the person began to drink; (2) when the person stopped drinking; (3) how much the person drank; (4) what the person drank; (5) how much the person weighs; and (6) if the person had a full or empty stomach.

One of the top blood alcohol experts in the nation, Dr. Kurt M. Dubowski, summarized the problems with “retrograde extrapolation” in his frequently cited article, “Absorption, Distribution and Elimination of Alcohol: Highway Safety Aspects,” first published in the Journal of Studies of Alcohol.  In that study Dr. Dubowski concluded “no forensically valid forward or backward extrapolation of blood or breath alcohol concentrations is ordinarily possible in a given subject and occasion solely on the basis of time and individual analysis results.   While cases dealing with this issue in California are few and far between, The Criminal Appeals Court of Texas in Mata v. State, 46 S.W.3d 902, addressed this issue and the scientific technique of “retrograde extrapolation” in excruciating detail. The Mata Court took judicial notice of scientific literature in the area and cited in its opinion numerous publications. The cited authority included that of Richard Watkins, Assistant Director of the Phoenix Crime Lab, and Eugene Adler, a toxicologist for the Arizona Department of Public Safety. Id. at 910; see “The Effect of Food on Alcohol Absorption and Elimination Patterns,” 38 J. of Forensic Science 285-291 (1993). The Mata Court, citing from Watkins and Adler, stated that: "The limitations and pitfalls associated with retrograde extrapolations are often not appreciated by lawmen and the courts. The authors [Watkins and Adler] conclude that “any attempt at retrograde extrapolations should be made with caution, and performed by a person able to assess and discuss the applicability of a retrograde extrapolation to a particular situation.” Id. at 910.

The court noted that Watkins and Adler were cautious about the reliability of retrograde extrapolation. Id. The court relying on other experts in the field wrote the following:  They [Watkins and Adler] write that retrograde extrapolation is a “dubious practice” and that expert testimony on the issue “requires careful consideration of the absorption kinetics of ethanol and the factors influencing this process.” They explain that “the absorption profile of ethanol differs widely among individuals, and the peak [BAC] and the time of its occurrence depends on numerous factors. Among other factors, the drinking pattern, the type of beverage consumed, the fed or fasted state, the nature and composition of foodstuff in the stomach, the anatomy of the gastrointestinal canal, and the mental state of the subject are considered to play a role.”

The Mata Court acknowledged that few jurisdictions have considered the reliability of “retrograde extrapolation” because many states have eliminated the need for “retrograde extrapolation” as a matter of law. Id. at 913. The statutes in these jurisdictions provide for a rebuttable presumption if the person’s BAC is over the legal limit, “assuming the test was conducted within a specified or reasonable time from driving.” Id.  The Mata Court was only able to find two courts in the entire nation that have touched upon issues of reliability of “retrograde extrapolation.” Id. An Arizona appellate court made reference to the issue in a footnote stating that “the science of ‘retrograde extrapolation’ has achieved general acceptance in the scientific field.” Id. citing Ring v. Taylor, 141 Ariz. 56, 59 fn 6. (Ariz. App. 1984).Thecourt that discussed the issue of “retrograde extrapolation” was the Alabama Court of Appeals in Smith v. Tuscaloosa, 601 So. 2d 1136 (Ala. Crim. App. 1992). Id. at 913-914. The Alabama Court disagreed with the Arizona Court and found from studies that “retrograde extrapolation” is an unreliable method of determining a persons BAC. Id.

The inadequacies of retrograde extrapolation extend beyond mere technical inaccuracies to problems that are inherent in the basic premises and calculations of this technique. These inadequacies render retrograde extrapolation inherently untrustworthy and therefore inappropriate for use as evidence to convict drunk drivers. Id. at 914.  After complete and thorough study of retrograde extrapolation, the Mata Court concluded that, even those who advocate retrograde extrapolation as a reliable technique, use it only if certain factors are known, “such as the length of the drinking spree, the time of the last drink, and the person’s weight.” Id. at 915. The Texas Court further concluded:  ​The court evaluating the reliability of a retrograde extrapolation should also consider (a) the length of time between the offense and the tests administered; (b) the number of tests given and the length of time between each test; and (c) whether, and if so, to what extent, any individual characteristics of the defendant were known to the expert in providing the extrapolation. These characteristics and behaviors might include, but are not limited to, the person’s weight and gender, the person’s typical drinking pattern and tolerance for alcohol, how much the person had to drink on the day or night in question, what the person drank, the duration of the drinking spree, the time of the last drink, and how much and what the person had to eat either before, during, or after the drinking. Id. at 916.

Refusing To Submit To A Chemical Test For DUI Is Not A Violation Of PC 148

Many officers believe if a dui suspect refuses to take a breath or blood test during a drunk driving investigation then they are guilty of delaying an officer under PC 148.  Not so under California law according to People vs. Valencia 240 Cal.App.4th Supp. 11

In California, The “implied consent” sanctions under V.C. § 23612 are an administrative in nature, they being administrative- type sanctions only, which are necessary to encourage an arrestee to voluntarily submit to a blood or breath test and thus avoiding the possibility that force might be used (which it can if a warrant is obtained or the circumstances involve an exigency). And the enhanced penalties imposed under V.C. § 23577 apply only upon conviction for the underlying DUI offense itself. For these reasons, the Court found it “inappropriate” to charge and convict a person of P.C. § 148(a)(1) in the non-violent DUI refusal situation. Because the DUI laws already punish the person for not taking a test the court ruled a separate crime of PC 148 would not apply.

False Statements During DUI Stop Can Result In Charges of Lying To A Cop

An appeals Court in California recently decided that telling a cop you had nothing to drink during a dui investigation can be grounds for conviction of Vehicle Code 31, false statements to a law enforcement officer.

The facts of the case People v. Morera-Munoz, are as follows:
While being questioned by police regarding the possibility that he was driving under the influence of alcohol (DUI), defendant denied that he had been drinking. He was subsequently charged with various DUI misdemeanors and for providing false information to police (Veh. Code, § 31). He was found guilty of violating section 31. He appealed to the appellate division of the superior court, arguing that section 31 violates the First Amendment by criminalizing the giving of any false information without regard to its materiality. After the appellate division declared the statute unconstitutional and entered judgment for defendant, the cause was transferred to the Court of Appeal. Held: Reversed. The First Amendment prohibits the restriction of speech because of its content. 

California Vehicle Code Section 31 prohibits a person from giving false information to a peace officer while in the performance of his duties under the Vehicle Code, when the person knows the information is false. It was intended to make reports of accidents more valid and prevent a waste of manpower in disproving false statements during drunk driving investigations.  Section 31 legitimately criminalizes the making of false statements that interfere with the proper enforcement of the Vehicle Code and therefore does not implicate protected expressive activity. It is content neutral, and imposes only an incidental burden on speech. Under First Amendment scrutiny, such a restriction is valid if it furthers an important governmental interest which is unrelated to the suppression of free expression, and the restriction on speech is no greater than essential to further that interest. When construed to include a materiality element, section 31 meets constitutional requirements, the Court found.

In order to convict, the prosecution is required to prove the false statement was material in order to comply with due process standards. The test for materiality is "would a reasonable peace officer find the information relevant and material in his or her investigation?"  The Court found in this case the Judge failed to instruct the jury on this point but found that error harmless. The Court observed "the error was harmless beyond a reasonable doubt because defendant's responses to the officer investigating a possible DUI offense were clearly material to that inquiry." Thanks CCAP.

New Law In California May Allow For No Suspension For First Time DUI Offenders Who Install IID

California SB 1046 is a new law enacted in 2017 that permits first time offenders to avoid any mandatory license suspension as long as they install an ignition interlock on their car (IID).

While many critics opposed the law on the ground that it broadens what many deem to be an ineffective tool to prevent driving under the influence, the new California legislation is being hailed as a step in the right direction by many experts and legal professionals who have always complained DUI suspensions for first time offenders hurt the families of drunk drivers more than the offender himself.

Here are some facts about the new law
Allows any drunk driver to go on an ignition interlock instead of license suspension. Currently, drivers arrested and convicted of DUI must wait at least 30 days before going on ignition interlock.


•Drunk drivers can start the interlock time as soon as their license is suspended and they meet other DMV licensing requirements. Offenders who install an interlock sooner are eligible for a $500 fine reduction (cumulative fines and penalties) upon criminal court sentencing.

•A person who installs an interlock early can receive credit toward any court interlock order. SB 1046 also makes more indigent drunk drivers eligible to obtain an interlock at a reduced cost.  The law was written to require the interlock companies to pick up the cost.


•Currently, one of the 350 interlock locations determine indigence via tax return or three months of income statements. If one of these dealers fails to comply with the current income assistance requirement, the interlock dealers can be held responsible.

•Requires interlock vendors to provide individuals with information on income assistance and contact information for the bureau in case customers have complaints

California is the only state that requires interlock users to have their license revoked after completing the statutory time on an interlock. For example, a first-time offender who completes five months on an interlock must wait an additional six months before being able to drive unrestricted. A repeat offender who completes one year on an interlock must wait another year before driving legally. Under SB 1046, offenders can drive legally without restriction as soon as they complete their interlock period, which helps to close this loophole.

DUI Checkpoints Scheduled For The South Bay This Weekend

Local police and law enforcement are ramping up saturation patrols and dui checkpoints as we get closer to the holidays.  This weekend Redondo Beach will conduct a sobriety checkpoint in hopes of ensnaring drinking drivers too impaired to operate a motor vehicle.

Here is a list of cities involved:

DUI Checkpoints 

Friday, December 16, 2016

• DUI/Driver License Checkpoint somewhere in the Santa Monica city limits – 7 P.M. to 3 A.M.
• DUI/Driver License Checkpoint in the North Patrol Division of Long Beach – 7 P.M. to 3 A.M.
• DUI/Driver License Checkpoint in the Redondo Beach city limits – 7:30 P.M. to 2:30 A.M.
• DUI/Driver License Checkpoint in the Pico Rivera city limits – 6 P.M. to 2 A.M.

Monday December 19, 2016

• DUI/Driver License Checkpoint at Figueroa Street north of 9th Street, Los Angeles – 8 P.M. to 2 A.M.

Getting Enrolled In Torrance DUI Classes Early

Sometimes it is wise to get enrolled early in a dui class, before you go to Court.  One of the best DUI classes in Torrance is Driver Benefits which is owned by Bill Wickline.  Contact Bill and tell him you want to enroll in the AB541 class but you have not been to Court yet.

Driver Benefits, Inc. is located @ Santa Fe Business Park • 2370 West Carson Street, Suite 150 • Torrance, CA 90501 • 310-320-9550 (direct) • 310-320-9448 (fax) • info@driverbenefitsinc.com

When you show up for the appointment advise them you wish to "self enroll" in the AB541 program at a minimum.  You may be required to complete a longer term program depending on the Court orders but the AB541 is a good start, ensure the school will allow you to switch to a 6 or 9 month class should it become necessary.  Let the school know in advance that you do not have a Court referral or any paperwork because you have not been convicted but you want to self enroll for DMV purposes.

Military Diversion For DUI

For decades groups such as MADD pressured legislators to get tougher on DUI offenders, however it appears another formidable force has entered the arena with even more political clout- Veterans Groups.  Yes, Veterans are finally getting the thanks they are deserved by recognition of the fact that those that put their life on the line for their Country often come home with conditions that stay with them forever.  Legislators are now enacting laws to help Military Veterans, and active duty military, avoid the stigma of a criminal conviction and get them treatment.

An example is California Penal Code §1001.80 which offers military diversion from criminal prosecution for all Misdemeanor DUI offenses.  Eligibility is included for all past and current veterans, whether they were in combat or not, as long as there is a showing that they may be, as a result of their military service, suffering sexual trauma, traumatic brain injury, PTSD, substance abuse, or mental health problems as a result of their military service.
NO MEDICAL DIAGNOSIS IS REQUIRED!  As the threshold for eligibility is simply that the person “MAY” be suffering from one or more of the enumerated conditions.

Indeed, for those who sacrifice much to serve our country in the armed forces it is nice to see a little payback from the government and a good example of that is the newly enacted laws in a California allowing veterans and active duty military personnel to avoid a conviction for certain types of criminal offenses such as DUI and drunk driving.  

Recently the second district Court of Appeal in California ruled that DUI offenses are eligible for military diversion in Los Angeles County.  This means that active duty military personnel and veterans can get their drunk driving charges dismissed Pursuant to Penal Code 1001.80 if they suffer from ptsd, mental health issues or substance abuse issues as a result of their military service.  Recently, attorney Matthew Ruff got driving under the influence charges dropped for a client in Manhattan Beach California even though his blood alcohol level was twice the legal limit.  A Torrance Court Judge allowed the serviceman to get his charges dismissed following successful completion of counseling.

It should be noted that it is NOT necessary to show an actual physical or mental injury in order to have the case dismissed under the current state law.  For example, recently the attorney got a DUI case dismissed involving an accident and BAC of .17 where the service person was able to demonstrate she acquired a drinking problem as a result of her military service.  Matthew was able to show she met the qualifications of the law and was entitled to enter into a Diversion program with all charges ultimately being Dismissed.

The benefit of military diversion is that if the client performs satisfactorily during the period of Military Diversion, the court will dismiss the criminal charges. In addition, upon successful completion of the Military Diversion program, the arrest upon which the diversion was based shall be deemed to have never occurred, except the arrest upon which the diversion was based may be disclosed by the Department of Justice in response to a peace officer application request, and the defendant is still obligated to disclose the arrest in response to a direct question contained in a questionnaire or application for a position as a peace officer, as defined in Pen. Code § 830. 

So, what must be shown in order to qualify for military diversion for DUI in California ?


In short, to be granted Military Diversion, Counsel is required to provide an assessment or other evidence confirming The defendant is a current or former member of the military and may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problem, as a result of his or her military service. The defense is also required to provide a recommended treatment plan for the accused sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problem. 

Assuming the defendant is granted the request for military diversion the Court will impose certain conditions that must be satisfied in order to earn a dismissal.  The terms of the grant of diversion can vary from Court to Court.  Here is a list of some common requirements:

EXAMPLES OF CONDITIONS OF MILITARY DIVERSION IN DUI CASES:
    1. Twelve to 24 months of treatment

    2. First Conviction DUI Program, minimum AB541, and MADD Impact Panel.

    3. Random drug and alcohol testing by the treatment provider. 

    4. Substance abuse or other counselling, therapy or treatment as recommended in the assessment and/or treatment plan. 

    5. Written progress reports from care/treatment providers due every 90 days.


Who is Eligible For A Grant Of Military Diversion?

    1. Defendant is charged with a misdemeanor or misdemeanors only. 

    2. Defendant is a current or former member of the United States military. 

    3. Defendant may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance adbuse, or mental health problems as a result of his or her military service. 

    4. Defendant consents to being placed on Military Diversion and waives his or her rights to a speedy trial. 


    5. Defendant has not been granted Military Diversion for any other case. 


Here is a sample of a motion that can be filed in criminal court requesting military diversion for a DWI case:

MEMORANDUM OF POINTS AND AUTHORITIES 

Counsel requests this Court to place the defendant in a pretrial military diversion program, as specified under California Penal Code section 1001.80.

(Documentation of the defendant's PTSD, mental health issues, trauma or substance abuse problems should be outlined and attached to the motion and presented to the Court)

Section 1001.80 became law in 2015. It creates a diversion program where a serviceperson is accused of a misdemeanor and appears to be suffering from mental health problems resulting from his/her military service, including post-traumatic stress disorder and substance abuse. The legislation was created with the express purpose of allowing veterans who are suffering from mental health concerns to not only "get proper services" but also, importantly, to "allow them to be more easily employed in the future by keeping the crime off their record if they complete their diversion program successfully." (Sen. Loni Hancock, Chair, Senate Committee on Public Safety; Bill Author's Summary, S.B. 1227; Hearing Date: April 8, 2014.) The legislation passed overwhelmingly, and reflects our nation's growing understanding of the mental health concerns faced by our members of the military. (See, e.g. VAL WILLINGHAM, "Study: Rates of Many Mental Health Disorders Much Higher in Soldiers Than in Civilians," CNN.com, March 4, 2014.)


LEGAL AUTHORITY
Penal Code section 1001.80 applies "whenever a case is before a court on an accusatory pleading" for a misdemeanor and (1) "[t]he defendant was, or currently is a member of the military," and (2) "[t]he defendant may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of his or her military service." (Penal Code section 1001.80(a).) Upon motion by the defense, where a defendant is found to match these criteria, he can be placed in pretrial diversion program. (Penal Code § 1001.80(b).)

This recently-created military diversion legislation is uniquely broad, in that it places almost no restrictions on eligibility. Unlike diversion programs such as Deferred Entry of Judgment, military diversion under section 1001.80 does not specify that only certain types of misdemeanors are eligible, nor does it preclude servicemen with prior records. It never specifies that the diversion is only available once, nor limit the number of offenses for which a serviceperson can be diverted.

Defendant is clearly eligible for pre-trial diversion for his dui charges in this case.  The motion for military diversion can be made at any point prior to trial.  Most Judges will agree to hear the motion after the District Attorney has reviewed documents and has had an opportunity to object, when appropriate.