11 COURT: This would be a good time to take a

12 break. Mr. Correll, are there other matters that you'd

13 wish to bring up during the -- during the recess? I --

14 what I'm asking -- I'm trying to think about timing here

15 on when we should reconvene.

16 MR. CORRELL: I have matters that I --

17 motions that I would like to make.

18 COURT: All right. Let's -- let's reconvene

19 at 1 o'clock.

20 (At which time a recess was taken at

21 11:30 a.m., May 20, 1997; and proceedings commenced at

22 1:04 p.m., May 20, 1997, with the court, counsel and

23 defendant present.)

24 COURT: I believe that the record reflects

25 the state has rested. Is that correct, Mr. Wadding?

637

1 MR. WADDING: Yes, Your Honor.

2 COURT: Mr. Correll?

3 MR. CORRELL: May it please the court. Mr.

4 Wadding. Your Honor, at this time, on behalf of the

5 defendant, we would come forward and ask that the court

6 grant a directed verdict of acquittal as provided

7 pursuant to the Iowa Rules of Criminal Procedure.

8 In support of our motion, we would rely in

9 part on certainly the court's recollection of the

10 evidence as it is noted, and I would make the further

11 evidentiary argument by referring to those portions of

12 the evidence which I feel are in support of our position.

13 We recognize, of course, that the evidence

14 has to be, for the purpose of this motion, viewed in the

15 light most favorable to the state of Iowa. Even having

16 said that, we would think that the evidence clearly does

17 not allow the state to proceed with this case, and

18 there -- the proper remedy from our perspective certainly

19 is to grant the directed verdict of acquittal.

20 As the court is well aware, there are

21 basically three types of fashions in which the state can

22 formulate its case against Mr. Rokes: The first being

23 what I would refer to as the so-called per se, if the

24 court would find based on the evidence or a jury that

25 there is .10 or one hundred alcohol test. And in this

638

1 situation, I think that is one of the ways, and I think

2 it is obvious from the state's -- from the way the state

3 presented the case, and going back to the state's opening

4 statements, that the state does not even believe that to

5 be the situation. I believe that it is very clear from

6 Mr. Wadding when he -- at the commencement of this trial,

7 he carefully worded that, he said, well, we know it's at

8 least .087. And I think that there was a concession from

9 the very beginning of time that they do not believe that

10 Mr. Rokes' blood-alcohol level in any way is above .10.

11 I think that it is ironic and perhaps to some extent

12 hypocritical for the state of Iowa to rely consistently

13 on the DCI laboratory for years and years and years, when

14 the DCI laboratory is being utilized in courts throughout

15 this state to convict people, to incarcerate people,

16 everything is fine with that lab then, but when it comes

17 to a point in time when that lab does not give a level

18 that is consistent with their theory of the case, then

19 they would have this court and invite this court to

20 accept as an alternative test the test of Sartori

21 Hospital. And I think that this is convoluted, and I

22 think it is a perversion of the science of alcohol

23 analysis. We cannot simply take what is obvious, this

24 family's tragic grief, and extrapolate from that grief

25 conclusions that are not sustained by the science.

639

1 And in the -- in the area of this per se, so

2 to speak, they know, they absolutely know that the lady

3 from Sartori Hospital, Mrs. Glade, never did reduce the

4 level. And I think it is clear that what she did is she

5 tested serum, she did not test whole blood. The

6 testimony is clear from the state's own witnesses that

7 the alcohol collects in the water substance in the serum

8 and the -- therefore, the test has to be reduced. And as

9 their own expert acknowledged today, that everybody has

10 known that, everybody has known that for a long period of

11 time, because that is clearly the science, and she didn't

12 know that. She didn't know it even until the point in

13 time where she testified today, she never made any

14 readjustment, she never made any calculation, because she

15 didn't know any better. And I think what this court has

16 to be leery of and I think take into consideration, the

17 state knows that that test is not any good, that test is

18 not reliable and that test is being put out there, put

19 out there for public consumption, because it is a test

20 that is over a hundred. But everybody who has heard this

21 testimony has to know that that test is unreliable. It's

22 not that she is a -- a bad technician, not that she is a

23 bad person, but she didn't know. There -- there was

24 never any effort to educate her. She never knew. And

25 there is a danger in that, and the danger certainly is

640

1 that now there is reported some places in -- to the

2 public, and perhaps to the families, that there is this

3 misperception that there is a 120 test. There is no 120

4 test that is out there that is worth a hill of beans, and

5 they know it, and their experts know it, and it would be

6 the height of hypocrisy I think for them to present a

7 test that they know is not a valid test.

8 The next scenario we would submit that they

9 could proceed to look at is, is there a recklessness.

10 That would be equivalent to substantiate the proof of

11 this case in that fashion. And I would submit to the --

12 to this court that a case that addresses that is State

13 vs. Cox. I believe the court would be familiar with

14 this case, but it's cited at 500 N.W.2d at page 23, an

15 Iowa Supreme Court case as opposed to a Court of Appeals

16 case. And in that case there was a conviction before

17 Judge Beeghly, post-trial motions were made, those

18 post-trial motions were denied, and in that situation the

19 Supreme Court reversed. It is a situation where there a

20 driver went through a stop sign and broadsided a vehicle

21 and a death resulted. And I think the language is

22 pertinent. In their reversal the Iowa Supreme Court used

23 this language in a decision authored, unanimous decision

24 authored by Justice Andreasen. Page 26. "It was the

25 state's burden to prove that Cox was driving in a

641

1 reckless manner. Here, the evidence establishes Cox

2 failed to stop and yield as required by Iowa Code Section

3 321.322. There was no evidence that Cox was speeding or

4 operating his vehicle in an erratic manner. The fact

5 that rumble strips and a stop ahead sign preceded the

6 stop sign, does not elevate the stop sign violation from

7 a simple misdemeanor to a class C felony. We reverse the

8 defendant's conviction of vehicular homicide and remand

9 for entry of a judgment of acquittal on this charge."

10 I think that the evidence clearly shows when

11 the state's own witnesses have calculated there is no

12 speeding, there was, to the extent that there was a

13 violation by Mr. Rokes of the flashing red light, there

14 was certainly a violation by Ms. Farrell of a flashing

15 yellow light which obligated her to proceed with caution.

16 There was no recklessness as defined by Cox, and an

17 attempt to elevate this traffic offense into vehicular

18 homicide was found to be impermissibly tainted in Cox,

19 and we would submit is inappropriate here.

20 COURT: Did Cox involve the combination of a

21 traffic violation and alcohol?

22 MR. CORRELL: It did not. There was no

23 indication. It did, however, I would say, Your Honor,

24 indicate a person who was deceptive, a person who told

25 different stories as to what happened, whether he fell

642

1 asleep or not.

2 COURT: Thank you.

3 MR. CORRELL: That would in my opinion lead

4 us to the state's -- what they are basically pigeonholed,

5 I think, into their last resort in support of this

6 charge, and that was -- is whether Mr. Rokes was

7 operating under the influence. I think that there are --

8 is a situation here where the state has attempted to

9 produce Mr. Rayburn and Mr. Rehberg, two people from the

10 BCI who have no direct information and who basically are

11 attempting to make laboratory or bureaucratic changes in

12 the laws of the state of Iowa which are not there at this

13 point in time. The law has never been lower than .10,

14 and the conclusions are basically, again, an effort to

15 skirt that law in to, I think, try to create an inferior

16 secondary type of offense. I think that the reality is,

17 is that the under the influence section was designed

18 primarily to address a situation where somebody has

19 refused a breath test. And I think that the reality of

20 their position is absolutely not supported by the facts.

21 I think when we look at the situation, what

22 does the evidence show and what was the evidence that the

23 state has to rely on, the state has to rely on for the

24 position of the witnesses they chose to call. Those

25 witnesses that they chose to call are Officer Anderson,

643

1 who testified, first of all, there was no indication, he

2 indicated in his reports, that he ever concluded that Mr.

3 Rokes was under the influence nor intoxicated. It is, in

4 fact, absolutely to the contrary when, at approximately

5 11:40 p.m., he described Mr. Rokes as follows, "He does

6 not seem to be disoriented and answered all questions

7 without hesitation." That is how the state's own witness

8 described Mr. Rokes at 11:40, not disoriented and

9 answered all questions without hesitation.

10 Their next officer, again, Officer Michael

11 made no conclusions of intoxication or operation under

12 the influence, and, in fact, as the court will remember,

13 he was involved in the implied consent, and that implied

14 consent was approximately signed at 11:43, and in the

15 discussions before that Mr. Michael describes him as

16 cooperative and coherent while answering questions from

17 the nurse and, again, in responding to him, cooperative

18 and coherent.

19 The next witness I would call that -- to the

20 court's attention is Officer Venenga who saw him. She

21 saw him minutes after this incident. She described how

22 she was down on Seerley Boulevard and Main Street,

23 abruptly completed her work on that situation and drove

24 up and was there at approximately ten after 11. She had

25 a brief conversation at that point in time with Mr. Rokes

644

1 at the scene. Ten after 11. She saw him again at the

2 hospital. She is an officer at the scene, and she is an

3 officer at the hospital. And she is the officer who

4 said, she did not even believe there was probable cause

5 to arrest him. There is nothing in her report that she

6 typed that ever indicated that he was intoxicated nor

7 under the influence. And when you have an investigating

8 officer see a person ten minutes afterwards and tell a

9 court under oath there was not even probable cause to

10 arrest or she would have thought that she would have or

11 would have asked somebody else to assist her in that

12 arrest. That is the status of that record.

13 Then we look at Mr. Wilson. The testimony of

14 Mr. Wilson, I think, is -- is accurate, and he exactly

15 says what I think most of us in this courtroom know to be

16 the fact, that had there not been a serious personal

17 injury accident, there would have been no arrest based

18 upon this test nor what happened. There would have been

19 a stop sign violation, just as there was in Cox, and

20 that is what this officer says, and he says it because

21 it's the truth. That is the fact. This case has gone on

22 because, not of the facts, but because of the tragedy and

23 the loss. The facts and the law do not support the

24 continuation of this case. And when I asked Mr. -- when

25 I asked Mr. Wilson during his deposition and talked to

645

1 him, questioned him about it at the -- at the trial, I

2 asked him about two different points in time. And I

3 said, in the first part relative to when he saw Mr. Rokes

4 at the hospital, and I say, "And I understand that, but

5 in specific answer to my question, when you left that

6 room, meaning the hospital room, you had not reached any

7 opinion that he was operating a motor vehicle under the

8 influence of alcohol; isn't that a fair statement?"

9 Question. His answer, "Yes." Clear. That is not

10 argument. That is clear. Then, again, I say, "Isn't it

11 a fair statement," referring to the -- when I talked to

12 him on May 6 during the course of his deposition, I say

13 in clear, simple language, question, "Isn't it fair to

14 say, Mr. Wilson, that as you sit here today, at this

15 point in time, you do not know whether Tracy Rokes was

16 under the influence of alcohol at the time of this

17 accident or not? Isn't that a fact?" Answer, "That is

18 probably true, yes." That was his response when I took

19 his deposition, and that is, in fact, the situation now.

20 He does not know --

21 MR. WADDING: Your Honor, I guess I'm going

22 to object to that. And I don't -- that isn't -- he's

23 talking about deposition testimony.

24 COURT: I'll determine whether he's

25 accurately stating the testimony presented to me.

646

1 Mr. Correll?

2 MR. CORRELL: That is the testimony of four

3 officers. Not one officer in all of these reports ever

4 made any finding of under the influence or intoxication.

5 Not one person said that. So out of the anguish that

6 this situation has caused most particularly this family,

7 this Farrell family, and those other girls' families, out

8 of that anguish do we look for something that's not

9 there? And I think that is exactly what this -- the

10 state is asking you to do.

11 When we look further at the evidence that

12 they did introduce, under I think what I would certainly

13 call is less than forthcoming testimony from the BCI,

14 they acknowledge they have -- they have written no

15 professional articles. They have done no publishing in

16 scientific journals, and they both recognize and, in

17 fact, Mr. Rayburn, Cal Rayburn acknowledged today that

18 the literature supports that for ninety -- the average is

19 91 minutes from the last drink the alcohol level reaches

20 its peak. That's what -- that is what their witness said

21 today, an hour or so ago.

22 So when you take the totality of this

23 evidence, viewed in the light most favorable to the state

24 of Iowa, this can do nothing -- this cannot withstand

25 this motion in our opinion, and we would ask that the

647

1 state be given the equivalent of a directed verdict of

2 acquittal and that the defendant be acquitted at this

3 time. Thank you.

4 COURT: Thank you. Mr. Wadding?

5 MR. WADDING: Thank you, Your Honor. It is

6 not my intention to make a closing argument at this point

7 in time; however, I would respond to Mr. Correll's

8 argument. The argument made by Mr. Correll, I believe in

9 the first instance he indicated that the state would have

10 to prove a per se level of intoxication and was making

11 certain judgments about apparently my integrity as well

12 as the state of Iowa as well as the evidence in the

13 record. First of all, there is two tests in this

14 instance. One was .120. One was -- the other one was

15 .087. I think it would be less than -- than genuine or

16 less -- I would have less integrity in my own mind to not

17 inform any fact finder of both test results, that to

18 leave them lie there for just -- for anybody to speculate

19 on would be not a proper way to proceed either. The --

20 COURT: Do you agree, Mr. Wadding, however,

21 that as to the Sartori test, the .12 test, that the

22 evidence demonstrates that that test sample should have

23 been recognized as a concentrated sample and that the

24 results should have been factored accordingly?

25 MR. WADDING: Well, I -- I'm not -- I

648

1 hesitate to agree. I think that puts me in a position of

2 a fact finder, Your Honor. I would -- if -- if the

3 court's asking me to comment on the credibility, I'd say

4 it seems to me that it does have to be introduced by that

5 amount that is indicated, up to 20 percent. And I think

6 in that vain, in that vain, if -- if the court has asked

7 me to just -- to comment on the credibility of that test,

8 in that it just shows exactly how accurate it is.

9 Because when we take the 120 -- the Sartori 120 test and

10 we reduce it by 20 percent, we get .096. We make the

11 additional adjustment for the possible elimination or

12 evaporation of .01 to the DCI test, and it's a .097 test,

13 and it does kind of go to show how accurate the testing

14 was. If there was a mistake made by Ms. Glade in not --

15 in failing to reduce or adjust it by 20 percent because

16 it is blood serum, that is simply the mistake in the

17 math, not the procedure or the testing of the sample

18 itself. So I think that if you really want to talk about

19 whether or not that should have been presented or not, I

20 think there's no question it should have, because, number

21 one, I think it -- except for the mathematical error,

22 it's -- there's nothing wrong with the test. And it also

23 supports the test that was offered through the DCI. So

24 from that standpoint, I don't think that the -- there was

25 really any problem with the strategy nor the evidence

649

1 itself.

2 COURT: No. I'm not suggesting that the

3 evidence should not have been presented. I was trying to

4 determine whether you agree that, based upon the

5 testimony of that witness and subsequent witnesses, that

6 in order for that test to be relied on, the fact that a

7 concentrated sample was analyzed needs to be factored in.

8 In other words, that the result needs to be reduced by

9 the 20 percent as you said.

10 MR. WADDING: I -- I would probably agree

11 with that, yes.

12 COURT: Thank you.

13 MR. WADDING: And then to go further, I

14 don't -- and I really -- really take exception to the

15 argument that the state is asking the fact finder to

16 accept the .120 as the -- as the test result for Mr.

17 Rokes, because I don't think that that -- that certainly

18 wasn't what was presented through the -- through the

19 testimony on the stand. What was presented through the

20 testimony on the stand is that -- and it was presented

21 through the testimony on the stand is the most

22 conservative aspects, and since Mr. Correll believes that

23 my opening statement was some kind of concession, and I

24 argue to differ, I'd say that at least at the very

25 minimum we're talking about the defendant having a blood-

650

1 alcohol level of .087. If we use what Mr. Correll would

2 like to refer to as retrograde extrapolation, we do get

3 the defendant over .10 at the time of the accident. And

4 he is 115, anywhere from 107 to 115 at the time of the

5 accident using retrograde extrapolation, so I don't think

6 that we're really out of line with that -- that type of

7 testimony, that type of evidence. As a matter of fact,

8 in Mr. Rayburn's testimony, even Kurt Dubowski, who

9 criticizes using retrograde extrapolation, uses

10 retrograde extrapolation given they have enough

11 information to proceed under. So given that that is a

12 fairly common procedure used, I believe that our theory

13 under a .10 is how -- is very sound and that the evidence

14 does, in fact, go toward that theory as well.

15 Mr. Correll also talks -- says that the state

16 has not shown any -- we have not produced a fact question

17 on the recklessness theory. I think that -- and cites

18 State vs. Cox. And the court's distinction is obvious,

19 and I will restate it, that that did not involve any

20 allegation of intoxication nor any allegation of use

21 of alcohol, at least at a level that is called -- you

22 would -- would have to -- that has been described as

23 being a measurable impairment type level, that running a

24 red light with that level knowing that you're -- you've

25 been drinking does give you -- I believe does tend to

651

1 prove the element of willful and wanton disregard. That

2 you're operating a vehicle with some impairment, that

3 you're -- you're entering an intersection without slowing

4 and entering that intersection against the light

5 certainly would be indicative of recklessness.

6 That the last theory in which Mr. Correll

7 speaks of is under the influence, and he apparently

8 believes that Mr. Rehberg and Mr. Rayburn have some

9 political motive for giving their testimony as they did

10 in this instance. Despite the fact that they're

11 recognizing -- recognizing what is fairly standard

12 throughout the world of alcohol intoxication, that the

13 state is proceeding -- can also proceed under the theory

14 that a person is under the influence. If this is a -- if

15 this is a -- just a regular OWI type trial, and I'm sure

16 the court's aware of the instruction on that, that states

17 you can proceed under both theories. You can proceed

18 under the theory that a person is over .10, or that

19 they're under the influence, that the jury or fact finder

20 does not have to agree on the theory. Six people can

21 agree on -- that the person is over .10, and six people

22 can agree that the person is under the influence and

23 still come back with a verdict of guilty, and that

24 certainly under the influence can include a person that

25 is not necessarily a .10, that the fact that we use that

652

1 as a standard, you know, despite scientific evidence to

2 the contrary, you know, is simply a political decision by

3 the legislature, not necessarily a scientific one.

4 The fact that measurable impairment is seen

5 at much lower levels than that can be used to prove under

6 the influence as well, and I don't think that the state

7 is in any less of a position as far as its integrity

8 of the evidence is concerned in going forth on that

9 location -- or on that theory.

10 And Mr. Correll also indicates -- speaks of

11 Mr. Wilson and Ms. Venenga, and I would ask the court to

12 be very specific about those times in which these

13 witnesses, especially Officer Venenga and Wilson, are

14 asked whether they believed the defendant -- if they had

15 any opinion as to whether he was under the influence or

16 not, and we're talking two -- two to two and a half hours

17 after the accident, right around 1 o'clock a.m. at the

18 time that they meet him in the hospital after he's been

19 sutured by Dr. -- by the emergency room doctor. That

20 Officer Venenga does indicate she has some contact with

21 him out at the scene, however, it's very limited, and she

22 also goes to the accident -- to the car where Ms.

23 Farrell, Ms. Kleinheksel and Ms. Hill are located and are

24 suffering some serious injuries and obviously that the

25 injuries -- or the observation of the young ladies in the

653

1 vehicle become more paramount than the observation of Mr.

2 Rokes. However, in that vain, I have no question, Ms.

3 Emily Rizner-Brasfield sees of the defendant, in her

4 belief that he's intoxicated, have no question that

5 Officer Michael does observe signs of intoxication

6 including an odor of alcohol, including eyes that are

7 indicating bloodshot and watery -- watery and bloodshot

8 eyes despite the fact that there is an injury to the eye.

9 The fact that he doesn't go further is he doesn't believe

10 it's appropriate considering the injury that he observed

11 on the defendant, that he has a head injury. He doesn't

12 do any further field sobriety testing, and that we would

13 expect, and doesn't make that call in that vain, when he

14 knows that he has not performed any field sobriety

15 testing or any other normal training procedure that he

16 has not done and would rely on the fact that he did take

17 a blood-alcohol or did request a blood-alcohol test. And

18 that Mr. -- or you'll also remember that Sergeant Wilson,

19 given the whole scenario, including all of the

20 information that he could have to date, would have an

21 opinion that the defendant was under the influence of an

22 alcoholic beverage at the time of the accident given all

23 the information that he -- that was currently in the

24 record. So I believe that in -- in analyzing those

25 statements -- those -- that testimony offered through

654

1 those officers, one has to indicate -- qualify that by

2 the -- in relationship to the time that they meet with

3 the defendant and what's going on in relationship to

4 that.

5 I believe that as a whole, the state has

6 proven its case and generated a fact question for a fact

7 finder.

8 COURT: My recollection of the evidence was

9 that the additional factor that that officer was

10 available -- that he had available to him at the time he

11 testified here was the test results; is that right?

12 MR. WADDING: With regard to Sergeant Wilson?

13 COURT: Yes.

14 MR. WADDING: Yes.

15 COURT: Mr. Correll, anything further?

16 MR. CORRELL: Your Honor, the -- very

17 briefly, I guess, on the issue of the Sartori Hospital,

18 it was not only did they not make the adjustment in the

19 calculation, it was also, I think, the fact that the --

20 their own expert testified that historically, and perhaps

21 history isn't an absolute answer, but historically

22 hospitals do not do as good of a job in testing blood-

23 alcohol because that's not their primary purpose. I

24 think the court heard the vast difference in experience

25 between six a year and 1400 a year.

655

1 And I think finally the calibration issue was

2 an issue that is of further significance, that she

3 indicated that she didn't know, when we took the

4 deposition, when it was calibrated, that their protocol

5 requires instead of it being calibrated before every

6 test, every three months, and that it had been calibrated

7 approximately -- last calibrated a month prior to this

8 test. I think all of those are indicia of -- that that

9 test is more flawed, that opinion is more flawed than

10 just failure to apply the reduction, the percentage

11 reduction. I think it is flawed because they are not in

12 the business of doing these types of tests.

13 In response to the situation of Mr. Wilson,

14 I'll be very brief, to the extent that Mr. Wilson,

15 equivocated at all, it was, I don't think, on the issue

16 of significance, the issue of significance of what he

17 saw. And when I took his deposition, and I asked him,

18 very clearly, there was no doubt that he had the opinion,

19 because that is precisely what he said, isn't that true,

20 you don't know? That's true, yes. That's what he said.

21 And I think to then try to say, well, that was -- now

22 that you know that there is another test, if you included

23 that test, would that make any difference? And I think

24 that that is an after-the-fact type of effort to

25 resurrect a witness, all of these other witnesses. And

656

1 even with Mr. Wilson, there is either five or six pages,

2 five pages of a report, and never, never a word that he

3 was intoxicated, under the influence or impaired. And

4 that is the record that has been brought and presented to

5 this court. Thank you.

6 COURT: Anything further, Mr. Wadding?

7 MR. WADDING: No, Your Honor.

8 COURT: The three basic areas that Mr.

9 Correll focuses on in his motion are obviously a key to

10 the case, and obviously all three of these areas are,

11 based on the evidence presented and the applicable law,

12 close issues. The parties have correctly stated, in

13 outlining the legal standard, that I am required to view

14 the evidence in the light most favorable to the state

15 when considering defendant's motion for a directed

16 verdict of acquittal. In applying that standard, I find

17 that viewing the evidence in the light most favorable to

18 the state that the defendant's motion for directed

19 verdict of acquittal must be denied, and I accordingly

20 overrule the motion at this time.

21 Mr. Correll, are you ready to proceed?

22 MR. CORRELL: Yes, we are, Your Honor.

23 COURT: Please proceed.

24 MR. CORRELL: Would you go up to that blue

25 chair and stand, and Judge Geer will swear you in.

updated 07/27/10