Reale Jr., John Salvador v. State ( 2003 )

Affirmed and Memorandum Opinion filed September 25, 2003

Affirmed and Memorandum Opinion filed September 25, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00621-CR

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JOHN SALVADOR REALE, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the County Criminal Court at Law No. 12

Harris County, Texas

Trial Court Cause No. 1048785

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M E M O R A N D U M   O P I N I O N

            This is a driving-while-intoxicated case in which appellant challenges the trial court’s denial of his motion to suppress the State’s expert testimony regarding retrograde extrapolation of his breath-test result.  We affirm the trial court’s judgment.

                              I.  Factual and Procedural Background

            Appellant was charged by information with misdemeanor driving while intoxicated.  Upon learning that the State planned to use expert testimony regarding retrograde extrapolation of appellant’s breath-test result, appellant filed a motion to suppress this evidence.  At the hearing on appellant’s motion, appellant and the State agreed that the issues on the motion to suppress were limited to whether the named expert, Ricky Viser, was qualified to apply the theory of retrograde extrapolation and whether he properly applied retrograde extrapolation to the issues in this case — that is, whether Viser had sufficient factors under Mata to provide reliable testimony.^[1]  For the purposes of the hearing, the parties agreed to the following set of facts:

(1)       Appellant weighed 215 pounds at the time of the offense;

(2)       Police officers stopped appellant while he was driving at 3:54 a.m.;

(3)       Appellant took a breath test at 4:52 a.m. that showed an alcohol level of .082;

(4)       Appellant took a second breath test at 4:55 a.m. that showed an alcohol level of .081;

(5)       Appellant had his first drink at 9:30 p.m. and his last drink at 2:00 a.m.; and

(6)       Appellant ate pancakes at 3:30 a.m.

            Viser, who was the only witness at the suppression hearing, testified as follows:

!         Viser has a bachelor of science degree from Prairie View A & M University.

!         Viser has worked as a technical supervisor for the Houston Police Department’s breath-test program for seven years.

!         As part of his duties, Viser protects the integrity of the breath-test program.

!         Viser is a certified technical supervisor as well as a certified breath-test operator.

!         In the course of his training, Viser has learned about the effects of alcohol on a person’s mental and physical faculties.

!         At annual meetings of the technical supervisors, Viser has participated in tests in which men and women of different weight and height are given different amounts of alcohol, breath tests are performed on the subjects, and the technical supervisors perform retrograde-extrapolation calculations on the test subjects.

!         Retrograde extrapolation is “a back estimation of a measured amount of ethanol related back to the time of driving.”

!         In performing retrograde extrapolation, one must take into account absorption and elimination.

!         Absorption describes the process by which a person takes alcohol into his body and the alcohol is distributed throughout the body.  During absorption the alcohol concentration is usually increasing.

!         Elimination is the process by which the body metabolizes the alcohol in the liver.  During elimination, the alcohol concentration is decreasing.

!         In performing retrograde extrapolation, one needs to have some of the following factors: the time of the stop, the time of the test, the amount of alcohol measured in the test, the subject’s gender and weight, whether the subject had eaten, and the times of the subject’s first and last drink. 

!         There are some risks of error with extrapolation; however, the risk depends on the number of facts available. 

!         A subject with the stipulated characteristics of appellant would have had a breath alcohol concentration from 0.09 to 0.10 at the time he was stopped, if he was in the elimination phase at the time of driving.

!         A subject with the stipulated characteristics of appellant would have had a breath alcohol concentration of 0.08 at the time he was stopped, if he was in the absorption phase at the time of driving.

!         If a subject has recently eaten, the food tends to slow down the rate of alcohol absorption into the body.

!         Viser used a constant 0.02 elimination rate in his calculations.

!         The relevant literature indicates that a person’s elimination rate may range from 0.0125 to 0.025 and that the average elimination rate is 0.18; however, most experts use a 0.02 elimination rate, which is equivalent to one drink per hour.

!         Based on the number of factors given in the hypothetical concerning the stipulated characteristics of appellant, Viser has a high degree of confidence in his calculation. 

!         A hypothetical 215-pound man would have an absorption rate of 0.14 per hour.

!         Viser uses a standard elimination rate but varies the absorption rate based on the characteristics of the subject. 

!         Viser did not base his calculations on the type of alcohol consumed or the number of drinks consumed.

!         Viser would take it into consideration if the subject had consumed 10 ounces of grain alcohol and was stopped an hour later.

!         The quantity of alcohol consumed is a major factor.

!         The quantity of food consumed is irrelevant; however, the presence and type of food are relevant.

!         Viser has done extensive studies in extrapolation. 

!         Viser does not believe he receives The Journal of Toxicology and Environmental Health.

!         The more food ingested by the subject, the more the food will slow the absorption rate; however, Viser still believes his calculations are reliable even if he does not know the amount of food eaten because, if the subject ate food, he believes he can reliably take the food into account, as long as he knows when the subject ate the food. 

!         Although two breath tests were taken, the results were “pretty much the same.”

!         Viser believes the man in the hypothetical, based on the stipulated facts regarding appellant, was in the elimination phase, and Viser believes he can determine whether a subject is in the elimination or absorption phase even if he only has a single breath test.

!         Viser does not know the actual amount of water that was in appellant’s body at the time in question; however, Viser took this into account based on average amounts of water in men and based on appellant’s weight.

!         Retrograde extrapolation is not difficult; one cannot make an exact prediction, but one can definitely estimate within reason.

!         Viser did not take appellant’s mental state into consideration in making his calculation, and Viser believes mental state has nothing to do with this calculation.

!         Even without knowing the amount of alcohol and food ingested, and without knowing the subject’s drinking history or mental state, Viser believes he can establish an accurate rate of absorption.

            At the conclusion of the suppression hearing, the trial court denied appellant’s motion to suppress.  Under appellant’s agreement with the State, appellant pleaded guilty with an agreed recommendation that punishment be assessed at confinement in the Harris County Jail for three days and a fine of $1,000.  The trial court assessed punishment in accordance with the plea agreement and expressly permitted appellant to appeal its denial of appellant’s motion to suppress.

                                                      II.  Issue and analysis

            Appellant’s sole issue on appeal is whether the trial court erred in denying his motion to suppress.^[2]  Appellant asserts that we should review this issue de novo; however, under Mata, we must apply an abuse-of-discretion standard of review.  See Mata v. State, 46 S.W.3d 902, 908 (Tex. Crim. App. 2001).  In determining whether the trial court abused its discretion, we consider whether the court acted without reference to guiding rules and principles — that is, whether the court acted arbitrarily or unreasonably.  Lyles v. State, 850 S.W.2d 497, 502 (Tex. Crim. App.1993).  We must uphold the trial court’s ruling so long as it is “within the zone of reasonable disagreement.”  Wheeler v. State, 67 S.W.3d 879, 888 (Tex. Crim. App. 2002). 

            In Mata, the Court of Criminal Appeals concluded the science of retrograde extrapolation can be reliable in a given case.  See Mata, 46 S.W.3d at 916.  The retrograde-extrapolation expert’s ability to apply the science and explain it with clarity to the court is a paramount consideration.  Id.  The expert also must show some understanding of the difficulties associated with retrograde extrapolation as well as an awareness of the subtleties of the science and the risks inherent in any extrapolation.  Id.  Finally, the expert must be able to clearly and consistently apply the science.  Id.

            In evaluating the reliability of retrograde extrapolation this court also considers (a) the length of time between the offense and the administration of the test(s); (b) the number of tests given and the interval between each; and (c) to what extent, if any, the individual characteristics of the defendant were known to the expert in providing his extrapolation.  Id.  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 alcohol the person consumed on the day or night in question, what the person drank, the duration of the drinking spree, the time of the last alcoholic drink, and how much and what the person had to eat either before, during, or after the consumption of alcohol.  Id.  

            The expert need not know every personal fact about the defendant to produce an extrapolation with the appropriate level of reliability.  Id.  If this were the case, no valid extrapolation could ever occur without the defendant’s cooperation given that a number of facts known only to the defendant are essential to the process.  Id.  The Court of Criminal Appeals has stated that if (1) more than one test is administered at reasonable intervals, and (2) the first test is conducted within a reasonable time of the offense, then an expert potentially could create a reliable estimate of the defendant’s blood-alcohol content with limited knowledge of personal characteristics and behaviors.  See id.  In contrast, a single test conducted some time after the offense could result in a reliable extrapolation only if the expert had knowledge of many personal characteristics and behaviors of the defendant.  See id.  The Court of Criminal Appeals has stated that a case would fall “in the middle” if the expert is made aware of two or three of the defendant’s personal characteristics and a single test was administered to the defendant within a reasonable length of time from the traffic stop.  Id. at 916–17.

            In this case, Viser’s testimony contained a few inconsistencies, but he explained the science with sufficient clarity and sufficiently acknowledged the difficulties associated with retrograde extrapolation.  The Court of Criminal Appeals has indicated that, a reasonable interval between the driving and the test is less than one hour. See Mata, 46 S.W.3d at 912.  Officers administered one test to appellant 58 minutes after the driving and the other test 61 minutes after the driving.  Although this length of time is at the outer limit of what the Court of Criminal Appeals considered a reasonable interval between the stop and the administration of the test, we conclude that this still was within a reasonable time after appellant’s driving.  See id.  Viser based his extrapolation testimony on the following personal characteristics and behaviors: (1) appellant weighed 215 pounds and was male; (2) appellant began drinking at 9:30 p.m.; (3) appellant finished drinking at 2:00 a.m.; and (4) appellant ate pancakes at 3:30 a.m.

            We note that the information available to Viser far exceeded that available to the expert performing the extrapolation in Mata.  The Mata expert testified that he did not know how much the accused weighed, whether the accused had eaten, or when the accused began or stopped drinking.  See Mata, 46 S.W.3d at 905–06.  Unlike the expert in Mata, Viser explained the science with sufficient clarity.  Viser also sufficiently acknowledged the difficulties associated with retrograde extrapolation.  Though Viser’s testimony contained a few minor inconsistencies, it did not suffer from the type of glaring inconsistencies cited in Mata.  See id. at 906–07, 914–15.  In addition, the length of time between appellant’s driving and the test was less than one hour, compared to two hours in Mata, and Viser had several facts or personal characteristics that the expert in Mata did not have.  See id. at 905–06.

            The Court of Criminal Appeals has indicated that two breath tests taken two minutes apart constitute only a single reading that will not reflect whether a subject is in the elimination or absorption phase.  See id. at 905, 909. However, Viser testified that he can determine whether a subject is in the elimination or absorption phase even if he has only a single breath test.  In any event, Viser’s testimony addressed both scenarios.  He gave an opinion regarding the breath alcohol concentration of a subject with the stipulated characteristics of appellant if such a subject were in the elimination phase and also if the subject were in the absorption phase.  Viser’s claimed ability to determine whether a subject is in the elimination or absorption phase based on a single breath test does not make the trial court’s denial of appellant’s motion to suppress an abuse of discretion.  Even if the two tests in this case constitute a single reading, that reading was taken within a reasonable time from the driving, and given Viser’s knowledge of several pertinent facts or personal characteristics, this case falls “somewhere in the middle.”  See id. at 916–17.  We hold that the trial court’s denial of appellant’s motion to suppress was “within the zone of reasonable disagreement,” and thus the trial court did not abuse its discretion in denying this motion.  See Wheeler, 67 S.W.3d at 888; Mata, 46 S.W.3d at 916–17.  Accordingly, we overrule appellant’s sole issue on appeal and affirm the trial court’s judgment.

                                                                        /s/        Kem Thompson Frost

                                                                                    Justice

Judgment rendered and Memorandum Opinion filed September 25, 2003.

Panel consists of Justices Yates, Hudson, and Frost.

Do Not Publish — Tex. R. App. P. 47.2(b).

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            ^[1]  See Mata v. State, 46 S.W.3d 902 (Tex. Crim. App. 2001).

            ^[2]  On appeal, the State asserts appellant did not present the same complaint to the trial court that he asserts on appeal.  However, we hold that appellant voiced the same complaint in the trial court and that appellant has sufficiently preserved error.  See Tex. R. App. P. 33.1(a).