See also: Calvin Rayburn Criminal Trial Deposition

CALVIN RAYBURN
CRIMINAL TRIAL


(Pages 546-586)

546

 

1 (Proceedings recommenced at 9:05 a.m.,

 

2 May 20, 1997, with the court, counsel and defendant

3 present.)

 

4 COURT: Are the parties ready? Mr. Wadding?

 

5 MR. WADDING: Yes, Your Honor

 

6 COURT: Mr. Correll?

 

7 MR. CORRELL: Yes, Your Honor.

 

8 COURT: Mr. Wadding?

 

9 MR. WADDING: Thank you, Your Honor. The

10 state would call Cal Rayburn to the stand.

 

11 CALVIN M. RAYBURN,

12 called as a witness on behalf of the state, being first

13 duly sworn by the court, was examined and testified as

14 follows:

 

15 COURT: Mr. Wadding?

 

16 MR. WADDING: Thank you.

 

17 DIRECT EXAMINATION

 

18 BY MR. WADDING:

 

19 Q. Would you state your full name and spell your

20 last name for the record, please.

 

21 A. Calvin M. Rayburn. R-A-Y-B-U-R-N.

 

22 Q. And your occupation, sir?

 

23 A. I'm a criminalist with the Iowa Department of

24 Public Safety, Criminalistics Laboratory in Des Moines.

 

25 Q. How long have you been a criminalist?

 

547

 

1 A. I have been at the state crime laboratory for

2 approximately 23 and a half years.

 

3 Q. And could you describe your training and

4 education in achieving your position as a criminalist?

 

5 A. I have a bachelor of science degree in

6 chemistry from Iowa State University in Ames, Iowa, plus

7 I had approximately seven years of experience in

8 laboratory work prior to my employment at the laboratory.

 

9 Q. And could you describe what your primary

10 duties are with the -- as a criminalist with the state of

11 Iowa?

 

12 A. At the present time my duties are alcohol

13 testing. Most of this involves the Intoxilyzer Model

14 4011A that's used throughout the state of Iowa for

15 breath-alcohol testing. I do the certification and

16 maintenance of that instrument, training and

17 certification of operators on the instrument. I'm also

18 doing the blood samples that are submitted to the crime

19 laboratory for alcohol analysis, and on a rotation basis

20 I'm assigned to crime scene duty.

 

21 Q. And how many people are responsible for

22 blood-alcohol analysis at the DCI?

 

23 A. At the present time I believe there are four

24 of us that are doing different kinds of blood testing

25 work for alcohol.

 

548

 

1 Q. And how long have you been involved in

2 testing blood-alcohol -- or blood for alcohol content?

 

3 A. I was hired to do the blood samples back in

4 1973 to -- basically I've been analyzing blood samples,

5 for example, for my entire career, which would be about

6 23 and half years.

 

7 Q. And could you describe the method that you

8 use in analyzing blood samples?

 

9 A. The method we use at the laboratory uses an

10 instrument called a gas chromatograph using an internal

11 standard type method for the analysis of alcohol both in

12 blood samples, urine samples and anything else we happen

13 to need to test for alcohol.

 

14 Q. And if you could, just --

 

15 MR. WADDING: Well, may I approach, Your

16 Honor?

 

17 A. You may.

 

18 Q. I'm going to show you what's been marked as

19 State's Exhibit "H" and already entered into evidence,

20 ask you if you recognize State's Exhibit "H"?

 

21 A. Yes, sir, I do.

 

22 Q. Okay. Is that a test that you performed in

23 this instance?

 

24 A. This is a report of an analysis on a blood

25 sample that I performed, yes, sir.

 

549

 

1 Q. And what was that in reference to, do you --

 

2 A. This was in reference to a person by the name

3 of Tracy Rokes. The blood sample was submitted by the

4 Cedar Falls Police Department for analysis on a -- for

5 alcohol on this particular sample.

 

6 Q. And do you know when that was submitted?

 

7 A. The blood was submitted to the laboratory on

8 October 17th, 1996.

 

9 Q. And when would the testing have taken place?

 

10 A. I actually analyzed this sample, I believe,

11 on October 30 of 1996.

 

12 Q. And can you describe what method you would

13 have used to analyze the blood sample?

 

14 A. The method I used for analyzing this sample

15 and any other others that I do is the gas chromatography

16 method using an internal standard, the same method I use

17 for all my blood samples.

 

18 Q. Can you describe what you do physically when

19 you run a blood sample of this nature?

 

20 A. First of all, what happens is the blood is

21 submitted to the laboratory, and it's received into

22 evidence by the laboratory technician. It's assigned a

23 laboratory case number and then placed in a big walk-in

24 cooler in the secure area in the laboratory.

25 When I analyze samples, I will go to the

 

550

 

1 cooler, remove these samples back to the work area in the

2 laboratory, check the sample, check the paperwork to make

3 sure that everything is correct. I will then open the

4 blood sample kit, take out at least one of the tubes of

5 blood, open that tube and remove two samples of blood and

6 place them in small vials. After I've done this, I will

7 also add an internal standard. This is a measured amount

8 of a known chemical we add to each of our blood samples.

9 The vial is then capped and allowed to reach a

10 equilibrium. This takes normally about one to two hours

11 to come to temperature to make sure everything is in

12 keeping. The vials are placed in a gas chromatograph.

13 The gas chromatograph is started. We first check the

14 instrument with a known standard. This is alcohol that

15 we have made up so we know what the concentration is to

16 check the instrument to make sure that it is still

17 working correctly and giving out the proper results. The

18 samples are then analyzed. The instrument is again

19 checked with a known standard at the end of the testing.

20 After that, then the chromatogram is removed and the

21 report is written.

 

22 Q. And did you follow those procedures in this

23 instance?

 

24 A. Yes, sir, I did.

25 Q. And the results that you reported in State's

 

551

 

1 Exhibit "H", is that the results that you indicated in

2 your analysis?

 

3 A. Yes, sir, it is.

 

4 Q. Okay. Can you describe what kind of results

5 you would get -- well, in this instance, what -- what

6 does a .087 represent?

 

7 A. .087 represents the number of grams of

8 alcohol in one hundred milliliters of blood. It is the

9 alcohol concentration according to the Iowa law.

 

10 Q. And is that -- is that the only result you

11 had on this sample?

 

12 A. No, sir, it is not.

 

13 Q. Okay. Could you describe what other results

14 you had on this sample?

 

15 A. When I run a blood --

 

16 MR. CORRELL: Excuse me, Your Honor. I'm

17 going to object to any additional results. Exhibit "H"

18 is the exhibit that is in evidence that was produced by

19 the lab relative to the test, and any other results are

20 irrelevant.

 

21 COURT: Overruled. You may answer.

 

22 A. When I analyze a blood sample just as this

23 for alcohol, I will normally set up two vials of blood

24 and inject each one twice in the gas chromatograph, so I

25 actually end up with four results. When I do this, then

 

552

 

1 the lowest result is reported. So in this particular

2 case I got the .087, .089, .089 and .091, but the lowest

3 is what we would normally report out.

 

4 Q. That is just a matter of procedure?

 

5 A. That is our normal policy, yes, sir.

 

6 COURT: Would you please restate the

7 different results that you obtained?

 

8 WITNESS: .087, .089, .089, .091.

 

9 COURT: Thank you.

 

10 Q. And was there anything unusual in those

11 results in your experience?

 

12 A. No, sir. That was a normal result that I

13 would expect.

 

14 Q. And do you have an opinion of a person's

15 state of sobriety at a .087 level?

 

16 MR. CORRELL: Excuse me, Your Honor. I'm

17 going to object to that. There's been no foundation

18 laid.

 

19 COURT: Sustained.

 

20 Q. Have you engaged in any studies with

21 reference to alcohol impairment?

 

22 A. Yes, sir, I have.

 

23 Q. Okay. Can you describe what studies you've

24 engaged in?

 

25 A. I have participated or run, I think it's a

 

553

 

1 total of 12 studies now involved with the actual

2 measuring of people's impairment. These are studies that

3 we have conducted normally in Des Moines. These involve

4 volunteers that would come into the area where we're

5 holding the test, we would test them to make sure the

6 were free from alcohol. We would then give them a series

7 of tests. These would be things such as field sobriety

8 testing such as an officer would perform. We also did a

9 number of other tests such as measuring reaction time,

10 depth perception, handwriting, other skills. And also on

11 a number of occasions we would have these individuals

12 operate a motor vehicle through an obstacle course that

13 had been set up for that purpose. All during this time

 

14 they were being observed and scored on how well they were

15 performing these various tasks that we had assigned to

16 these individuals.

 

17 After they had gone through the testing

18 before drinking, they were allowed to consume alcohol.

19 We basically allowed them to drink whatever they wanted,

20 however much they wanted. After they had consumed the

21 alcohol, blood tests, breath tests and urine tests were

22 collected to determine their alcohol concentrations, and

23 these individuals were again run through the various

24 tests, the field sobriety tests, the driving, reaction

25 time, depth perception and so forth, so we could measure

 

554

 

1 how much impairment had occurred at various alcohol

2 concentrations on that individual due to the alcohol. So

3 we were measuring the impairment due to alcohol on each

4 individual.

 

5 Q. Now, are these unusual type studies to be

6 done with alcohol?

 

7 A. No, sir. They are fairly common studies that

8 had been done many, many times over the years.

 

9 Q. By others than the DCI in Des Moines?

 

10 A. Oh, absolutely. By -- most states have done

11 these kind of testing, more foreign countries have, many

12 universities have. There have been a number of studies

13 such as this.

 

14 Q. And are you familiar with the literature on

15 that as well?

 

16 A. Somewhat, yes, sir.

 

17 Q. And based on the testing that you've done and

18 the literature that you've examined, do you have an

19 opinion as to whether a person is impaired at a level of

20 .087?

 

21 MR. CORRELL: Excuse me. Your Honor, I would

22 like to ask -- permission to ask two questions on voir

23 dire before making my objection.

 

24 COURT: Go ahead.

 

25 MR. CORRELL: Mr. Rayburn, have you, in fact,

 

555

 

1 published the results of those studies in any scientifi

2 magazines?

 

3 WITNESS: No, sir. These results were not

4 for publication to begin with, so, no, they were not

5 published.

 

6 MR. CORRELL: Your Honor, at this time, based

7 on the fact that these were not what I would consider to

8 be with this record a showing of a scientific test,

9 there's no publication, there's no way to verify the

10 accuracy or the input into these tests, there has been no

11 foundation laid which would allow this witness to give

12 the opinion with which he has been addressed. He has a

13 B.A. degree in chemistry, and that is the extent of this

14 record. If this does not go to the weight, this is a

15 lack of -- foundational lack of expertise on this

16 witness's part.

 

17 COURT: It goes to the weight rather than the

18 admissibility, and you'll be able to test verification on

19 cross-examination. Objection is overruled. You may

20 answer.

 

21

 

22

 

23

 

24

 

 

 

556

 

1 CONTINUED DIRECT EXAMINATION

 

2 BY MR. WADDING:

 

3 A. In my opinion a person with an alcohol

4 concentration of a .087 is measurably impaired by

5 alcohol.

 

6 Q. And what do you mean by measurably impaired?

 

7 A. Measurably impaired means that that person's

8 abilities and skills are being affected by alcohol,

9 things such as reaction time, how quick a person reacts

10 to a given stimulus, their depth perception, being able

11 to judge distances. It's affecting their vision. A

12 person gets what is called tunnel vision. They see

13 straight ahead. They do not see things off to the side

14 in the periphery of their vision. It affects their motor

15 skills and coordination and basically affects everything

16 that is needed for the safe operation of a motor vehicle.

 

17 Q. Now, did you become aware of another analysis

18 done on this blood sample?

 

19 A. Yes, sir.

 

20 Q. And did -- who did you understand to perform

21 the analysis?

 

22 A. I believe it was done at the hospital

23 laboratory in Sartori Hospital here in Waterloo.

 

24 Q. And did you understand that a particular

25 method was use

 

557

 

1 A. Yes, sir.

 

2 Q. And what was that?

 

3 A. It was an enzymatic method, or enzymatic

4 assay method.

 

5 Q. And what is the character of the sample

6 generally speaking in a -- enzymatic assay testing?

 

7 A. For an enzymatic method the serum or plasma

8 is what is tested rather than the whole blood.

 

9 Q. And in your method, what is tested?

 

10 A. Normally I would report -- analyze whole

11 blood. If I only had serum that was submitted to me,

12 that's what I would analyze. Normally what we get are

13 whole blood samples.

 

14 Q. And do you recall what you got in this

15 instance?

 

16 A. In this instance I got a whole blood sample.

 

17 Q. And in the enzymatic assay testing, is it

18 your understanding that it's blood serum that's being

19 tested?

 

20 A. Yes, sir.

 

21 Q. And is there -- are you aware of, or does the

22 method require a -- any kind of adjustment?

 

23 A. The method would require an adjustment on

24 plasma or serum if they were going to report out a blood-

25 alcohol concentration, yes, sir, because of the

 

558

 

1 differences in the solids in the -- between whole blood

2 and serum or plasma, either one. The red blood cells are

3 removed to do the plasma or serum. This would actually

4 raise the alcohol concentration in that plasma or serum,

5 so there would have to be a correction to bring that back

6 down to a blood-alcohol level.

 

7 Q. And what do you understand those figures to

8 be?

 

9 A. If I do it, I normally use 10 percent, but I

10 have seen figures as high as a 20 percent variation

11 because of the difference between blood and serum.

 

12 Q. So if you were testing the serum, and at the

13 DCI lab you would use a 10 percent figure?

 

14 MR. CORRELL: Excuse me. I'm going to object

15 to that. That's a leading question, Your Honor.

 

16 COURT: Sustained.

 

17 Q. I believe you indicated that -- have you ever

18 tested blood serum?

 

19 A. Not too often, but occasionally, yes, sir.

 

20 Q. And do you adjust it --

 

21 A. Most of the cases I get in, I don't know for

22 sure whether it's serum or plasma or just what the sample

23 is, so I would normally report it out as a liquid. So

24 much alcohol in the liquid that was submitted to me

25 because I don't know what it is. I very seldom get in

 

559

 

1 actual serum samples. If I did, I would use probably a

2 10 percent correction.

 

3 Q. And what type of method would you use in

4 testing the blood serum?

 

5 A. I would use the same method I use for whole

6 blood, the gas chromatograph with an internal standard.

7 That's the same method I use for everything.

 

8 Q. Now, in this instance --

9 WADDING: May I approach?

 

10 COURT: You may.

 

11 Q. You indicated that you would have tested the

12 blood on October 30th? Is that correct?

 

13 A. Yes, sir.

 

14 Q. And were you aware of, or did you become

15 aware of whether that -- when that blood sample was

16 with -- was drawn?

 

17 A. I was made aware that was drawn earlier than

18 that, but I don't recall the exact date. I know we

19 received it at the laboratory on the 17th of October. It

20 was drawn sometime before that, but I don't recall the

21 exact date that I was given.

 

22 Q. If you're aware of the -- would the date of

23 October 5th, 1996, does that strike your memory at all?

24 MR. CORRELL: Excuse me, Your Honor. I'm

25 going to object to that. That is leading. The witness

 

560

 

1 has testified he doesn't know.

 

2 COURT: Sustained.

 

3 Q. If -- is there any -- can alcohol evaporate

4 from a blood sample?

 

5 A. To a certain degree, yes, sir.

 

6 Q. And if there was a period of time that

7 elapsed, say, 25 days, would it be possible that alcohol

8 would evaporate from a blood sample?

 

9 MR. CORRELL: Excuse me. I'm going to object

10 to that, the form of the question. He is an expert

11 witness. The form of the question "possible" is improper

12 to pose that question to an expert.

 

13 COURT: Overruled. You may answer.

14 A. I would expect that after 25 days or so that

15 there would be some loss of alcohol from that sample,

16 yes, sir, not only from evaporation, but also possibly

17 from the enzymatic action of the normal sam -- normal

18 enzymes that are in a blood sample that the human body

19 normally uses to destroy alcohol, so I would expect t

20 see a loss of alcohol over a 25-day period.

 

21 Q. Now, what -- what would you -- what would you

22 estimate the loss to be?

 

23 MR. CORRELL: Excuse me. I'm going to object

24 to that. There is no foundation laid for this witness to

25 answer that question.

 

561

 

1 COURT: Sustained.

 

2 Q. Have you ever experienced a reduction in

3 alcohol content in a blood sample over a period of time?

 

4 A. Yes, sir, I have.

 

5 Q. Okay. And can you describe the circumstances

6 in which that occurred?

 

7 A. There are two circumstances. The first one

8 was that when I first started working the laboratory, to

9 find out if there was a change, I took a blood sample

10 that had been submitted to the laboratory. I analyzed it

11 when it was still fairly fresh, within a day or so. I

12 then let that sample set for a year on the countertop,

13 and every so often I would go in and analyze it again to

14 see what the alcohol concentration was after a period of

15 time. I've also had a number of cases where the sample

16 had been analyzed by two different laboratories one to

17 two to three months apart. Either I have analyzed the

18 sample first and another laboratory has analyzed it

19 second, or another laboratory has analyzed the sample

20 first, it was then later submitted to me to analyze for

21 alcohol concentrations. So both ways I've seen various

22 time periods between the two samples and the changes that

23 occur.

 

24 Q. And in your experience, what would you expect

25 a -- in a loss or reduction in alcohol content after a

 

562

 

1 25-day period?

 

2 MR. CORRELL: Excuse me, Your Honor. I'm

3 going to object. There's been no foundation laid for

4 this witness to answer the -- to offer an opinion on that

5 question.

 

6 COURT: If he has an opinion, I'll allow it.

 

7 A. I have an opinion.

 

8 COURT: Do you have an opinion on that?

 

9 A. Yes, sir, I do. I would expect after

10 approximately 25 days that there would be a loss of maybe

11 up to a .01 on the alcohol concentration. The longer

12 time period, I would expect more months, up to two to

13 three months, and I would expect a loss of about a .02

14 after two or three months.

 

15 Q. Does there come a point -- does it continue

16 to lose throughout the period of time?

 

17 A. In my experience up to about three months.

18 After that it levels off and stays fairly constant.

 

19 MR. WADDING: That's all the questions I

20 have. Thank you.

 

21 COURT: Mr. Correll?

 

22

 

23

 

24

 

 

 

563

 

1 CROSS-EXAMINATION

 

2 BY MR. CORRELL:

 

3 Q. Mr. Rayburn, whose responsibility is it to

4 get that blood analyzed in a timely fashion? Is it the

5 BCI's?

 

6 A. A timely fashion? That depends on what you

7 mean by timely fashion. I try and get --

 

8 Q. In using the word timely as it is normally

9 understood in the dictionary, whose responsibility is it?

10 Is it the defendant's or is it the laboratory's?

 

11 MR. WADDING: Well, I think -- I'm going to

12 object, Your Honor, as being argumentative.

 

13 COURT: Overruled.

 

14 A. I normally try to get samples done within

15 five working days, if I'm present, when the samples are

16 received at the laboratory. I have no control over the

17 time it takes from the drawing of the blood sample to the

18 time that it's submitted to the lab. That I have no

19 control over.

 

20 MR. CORRELL: Could you read my question back

21 to this witness, please.

 

22 (At which time the requested portion of the

23 testimony was read back by the court reporter.)

 

24 A. I don't think it's either one.

 

25 Q. You don't think it is the BCI laboratory's

 

564

 

1 responsibility to analyze blood in their possession in a

2 timely fashion? You don't think that is your

3 responsibility, sir?

 

4 A. After it's received at the laboratory, yes,

5 sir.

 

6 Q. And if it was received on October 15th,

7 wouldn't it be your responsibility to have it analyzed in

8 a timely fashion?

 

9 MR. WADDING: I'm going to object, Your

10 Honor, that that's not the state of the record.

 

11 COURT: I have October 17th, but I -- I also

12 had October 19th, so maybe that's a point we should clear

13 up. Do you know when it was received?

 

14 WITNESS: The sample was received on

15 October 17th.

 

16 COURT: All right. Thank you. Mr. Correll?

 

17 Q. If it was received on October 17th, it would

18 have been the regular procedure to have had that sample

19 analyzed within four days, wouldn't it?

 

20 A. I believe it's five days. If I was present,

21 not on vacation at that time, I probably would have.

 

22 Q. So if -- if you were on vacation, is the

23 material then subject to deterioration until you get back

24 on vacation, or are there other people in that laboratory

25 who are capable of making that analysis?

 

565

 

1 A. There are other people that can do that

2 analysis, yes, sir.

 

3 Q. And if that blood was in that laboratory on

4 October 17th, it should not have been set around to wait

5 until you got back from vacation to analyze it; isn't

6 that a fact, sir?

 

7 A. No, sir. That depends on the circumstances.

8 Mike Rehberg would normally do them, but he may not have

9 been there. I don't recall.

 

10 Q. So what we do know is that the blood set

11 there for approximately two weeks before it was analyzed,

12 correct?

 

13 A. Yes, sir.

 

14 Q. And now you are telling us that it may or may

15 not have diminished in its alcohol content during the

16 time it was in your custody at the laboratory; is that

17 correct?

 

18 A. To a small degree, yes, sir.

 

19 Q. And it may not have decreased at all; isn't

20 that a fact?

 

21 A. Since I don't know when it was drawn at the

22 time the sample came in, that's very possible.

 

23 Q. And when I asked you the question in the

24 course of your deposition, didn't I say, "And would you

25 agree that it also could be at exactly .087?" At page 20

 

566

 

1 line 13.

 

2 A. I don't recall. I may have if that's in the

3 deposition.

 

4 MR. CORRELL: May I approach the witness?

 

5 COURT: You may.

 

6 Q. Referring to page 20 of the deposition that I

7 took of you on March 26 in the Black Hawk County

8 Attorney's Office, didn't I ask you, "And would you agree

9 that it also could be exactly at the .087?" Didn't I ask

10 you that question?

 

11 A. Yes, sir, you did.

 

12 Q. And what was your answer?

 

13 A. "Yes, sir." It could.

 

14 Q. There are four other people or three other

15 people besides yourself who were able to analyze this

16 specimen?

 

17 A. They could if they didn't have their own

18 cases to work.

 

19 Q. This case got no priority then, I take it?

 

20 A. Nothing more than any other case that comes

21 in, no, sir.

 

22 Q. Did you not also state to me when I asked

23 you, "So is it possible that in some circumstances there

24 is no change whatsoever if it is less than 30 days?" Do

25 you recall me asking you that question

 

567

 

1 A. I don't recall all the questions you asked me

2 that day, Mr. Correll, but I very possibly could have

3 been asked that question, yes, sir.

 

4 Q. Assuming I did, and I'm asking it again,

5 would -- would not your answer be, "I would expect not

6 significant change in 30 days?"

 

7 A. Yes, sir, I would agree with that.

 

8 Q. And that's your testimony here today?

 

9 A. Yes, sir.

 

10 Q. You don't know whether this changed at all in

11 30 days, do you?

 

12 A. No, sir, I don't. I'm only going to go by

13 previous experience.

 

14 Q. So you don't know that this specimen was ever

15 any higher; isn't that a fact?

 

16 A. I would agree with that. I don't know. All

17 I know is what I got when I analyzed the sample.

 

18 Q. Thank you. This specimen, there are four

19 different results that you obtained on your test.

20 Correct?

 

21 A. Yes, sir.

 

22 Q. So it would be incorrect for any person,

23 any -- any person looking at this evidence to ever assume

24 that there is a specific right answer as to what the

25 blood-alcohol level is at any given point in time; isn't

 

568

 

1 that a fact?

 

2 A. No, sir.

 

3 Q. We can look at a thermometer in a certain

4 environment and know that the temperature is 71 degrees;

5 would you agree with that?

 

6 A. Not exactly. It would be 71 degrees plus or

7 minus whatever the accuracy of the thermometer is.

 

8 Q. And in this situation, we don't know which of

9 those four levels are correct because the analysis

10 doesn't lend itself to that; isn't that a fact?

 

11 A. Not from my report. From the actual analysis

12 as a chemist, I would have to say the actual alcohol

13 concentration would be a .089. That would be the average

14 of all four results, so as a chemist that's what I would

15 normally report. But our policy at the laboratory is to

16 report out the lowest of those numbers. So I might be

17 in -- the alcohol concentration at the time I analyzed it

18 was actually .089.

 

19 Q. Look at your report in front of you.

 

20 A. That's not what I said, Mr. Correll.

 

21 Q. No. I'm saying look at your report.

 

22 A. I looked at my report a number of times.

 

23 That's not what I said.

 

24 Q. Did you sign your report?

 

25 A. Yes, I did.

 

569

 

1 Q. And what does your report say, the level?

 

2 A. .087.

 

3 Q. And it doesn't take a chemist to average four

4 numbers, does it?

 

5 A. No, sir. Anybody can do that.

 

6 Q. With regard to the test that you performed,

7 isn't it a fact that you don't have any written protocol

8 for your testing standards?

 

9 A. I believe Mike Rehberg does. I don't have a

10 written copy of it. I don't -- didn't write my own

11 method out. It's a very simple, straight forward method.

 

12 Q. So my question is not to Mr. Rehberg, my

13 question is to you, and you have told me before you do

14 not have any written protocol; isn't that a fact?

 

15 A. I don't. It's so simple I don't need a

16 written protocol.

 

17 Q. So the answer is no, isn't it?

 

18 A. No, sir, there isn't. I believe Mike Rehberg

19 has written out a protocol for it. I have not.

 

20 MR. CORRELL: I would ask that be stricken.

21 The witness is argumentative, and he's not responsive to

22 my questions.

 

23 COURT: Please just answer the question posed

24 to you.

 

25 Q. Do you have a protocol about how long the

 

570

 

1 vials can sit in the refrigerator before they're tested?

 

2 Do you have a written policy on that?

 

3 A. Normal policy of the laboratory is cases

4 would be analyzed within five working days. Normally.

 

5 Q. And that didn't happen in this case, did it?

 

6 A. Not in this case, no, sir.

 

7 Q. And there is no written policy on any

8 adjustment for evaporation; isn't that a fact?

 

9 A. No, sir, there is no written policy on that.

 

10 Q. The test that you do, do you make

11 calibrations of your machine before each test?

 

12 A. Before each series of tests, yes, sir, I do.

 

13 Q. And do you believe that the recalibration or

14 calibration of the machine prior to each test is an

15 absolute necessity?

 

16 A. In my opinion, yes, sir, it is.

 

17 Q. And would you think that a test procedure

18 that did not recalibrate the machine before each test

19 would cause the integrity of the test result to be

20 questionable?

 

21 A. It would raise questions in my mind, yes,

 

22 sir.

 

23 Q. And it takes time to recalibrate the machine,

24 doesn't it?

 

25 A. Depends on the method you're using. My

 

571

 

1 method takes a couple of minutes to do, but it's -- in my

2 opinion it's very important.

 

3 Q. And isn't it when we're talking about blood

4 legal alcohol analysis, isn't it well recognized that

5 that is a requirement to calibrate the machine prior to

6 each test?

 

7 A. Depends on the state and their laws and their

8 rules. We do not have anything in our laws that state it

9 has to be done, but that is our normal procedure. I

10 would not do it otherwise.

 

11 Q. And in the scientific community for blood-

12 alcohol purposes, legal blood-alcohol purposes, isn't it

13 recognized that the machine should be calibrated prior to

14 each test?

 

15 A. As far as I know, everybody that I know that

16 is doing this type of testing does that, yes, sir. Yes,

17 sir, it would be very important.

 

18 Q. And it's important because not to do it could

19 produce an inaccurate result; isn't that a fact?

 

20 A. It's possible. It could be that the

21 instrument is out of calibration or not reading

22 correctly. You wouldn't know that without running a

23 standard.

 

24 Q. And when you run these tests that you run

25 you run, I believe you told me, about 13 or 14 hundred a

 

572

 

1 year; is that correct?

 

2 A. Yes, sir.

 

3 Q. And you recalibrate your machine prior to

4 each of those tests; isn't that a fact, sir?

 

5 A. I do not recalibrate. I check the

6 calibration. I recalibrate it if necessary, but I check

7 the calibration before each series of tests, yes, sir.

 

8 Q. Now, have -- you've talked about your history

9 and experience. Have you had occasions to have analyses

10 done by you after hospitals have done analyses of blood-

11 alcohol?

 

12 A. Yes, sir.

 

13 Q. And isn't it a fact that it has been your

14 experience over the previous 22 plus years that many of

15 the hospital tests are inaccurate? Blood-alcohol?

 

16 A. In my opinion, that's what I've been told,

17 that's what I have found, yes, sir.

 

18 Q. That's been your experience over 22 years,

19 has it not?

 

20 A. That many laboratories in hospitals, not all,

21 but many are inaccurate, yes, sir.

 

22 Q. And hasn't it been your experience that they

23 have been inaccurate in analysis of blood-alcohol because

24 that is not their primary function as it is yours, they

25 are interested in getting an analysis done for the

 

573

 

1 treatment of a patient?

 

2 A. Yes, sir.

 

3 Q. And when I took your deposition, didn't you

4 indicate to me that you were confident in your opinion

5 that the test result was eighty-seven?

 

6 A. Yes, sir, I did, when I analyzed the sample.

 

7 Q. Now, the enzymatic assay analysis, isn't it

8 fact that the substantive reason why that has to be

9 adjusted is because the blood cells are separated from

10 the whole blood and the alcohol basically collects or

11 concentrates in the serum?

 

12 A. Not exactly. The alcohol concentration will

13 be higher in the serum because the water content is

14 higher than it is in the blood cells itself.

 

15 Q. Okay.

 

16 A. But, yes, sir, the serum would be slightly

17 higher than a testing of the cells itself.

 

18 Q. In some of the literature indicates it is

19 20 percent higher, isn't it? Isn't that a fact?

 

20 A. Yes, sir.

 

21 Q. And during the course of your deposition, did

22 you not indicate to me, in response to this question,

23 page 33, line 15, question, "Are you aware that it is

24 generally considered that that type of test for alcohol

25 concentration in serum produces a higher result than does

 

574

 

1 the test of whole blood?" And your answer, "Oh,

2 absolutely. That has been well known for many years."

 

3 A. Yes, sir, I did.

 

4 Q. Okay. And would you agree --

 

5 MR. WADDING: I'm sorry. What was -- what

6 page that was?

 

7 MR. CORRELL: That was page 33, lines 15

 

8 through 20.

 

9 Q. And would you not agree, any test using the

10 enzymatic assay analysis would produce an inaccurate,

11 distorted analysis if that type of adjustment was not

12 made?

 

13 A. Absolutely. If that adjustment was not made,

14 you would have a serum-alcohol and not a blood-alcohol

15 level.

 

16 Q. And we couldn't rely -- nobody should rely on

17 that without an adjustment; isn't that a fact?

 

18 A. It would have to be corrected, yes, sir.

 

19 Q. You have no reason to know or believe that

20 that was adjusted regarding the Sartori test, do you?

 

21 A. No, sir. I had no knowledge of that, whether

22 it was done or was not done.

 

23 Q. Now, the test where -- that you ran, you ran

24 those basically for your own purposes in-house; would

25 that be a fair statement?

 

575

 

1 A. I don't understand your question, Mr.

2 Correll.

 

3 Q. Excuse me. When you said you did a -- you

4 did some studies in Des Moines, those were done for

5 in-house purposes; is that not correct?

 

6 A. For the most part. We also were using it for

7 training of outside agencies such as police officers,

8 state troopers, sheriffs' departments and the like, but

9 most of it was for my own purpose.

 

10 Q. And in those there is no indication that any

11 of those reports -- or any of those presentations were

12 ever published or submitted to any scientific journals

13 for publication; isn't that a fact?

 

14 A. They were never intended for publication.

15 They were never submitted. They were never intended to

16 be.

 

17 Q. Sir, I didn't ask you whether they were

18 intended. I asked you if they were.

 

19 A. They were not. They were not intended to be.

 

20 Q. They were intended to basically be

21 demonstrative aids for law enforcement personnel; isn't

22 that the case?

 

23 A. That was part of it.

 

24 Q. And the individuals that you had involved,

25 you did not have specific people monitor each of those

 

576

 

1 people to see what they ate before they got to your

2 study; isn't that a fact?

 

3 A. We did not measure what they had to eat. We

4 asked them what they had for breakfast because we

5 normally started at 8 o'clock in the morning, so we would

6 ask them what they had for breakfast.

 

7 Q. You did not have them under observation, did

8 you?

 

9 A. Not until they arrived at the scene, no, sir.

 

10 Q. And you -- in your study there is no written

11 notes or indications at the times at which they consumed

12 specific beverages; isn't that a fact?

 

13 A. When we were doing the studies, yes, sir,

14 that was all recorded. So we had the exact time and

15 exactly how much each individual had to drink.

 

16 Q. And didn't that vary the results?

 

17 A. The results varied with the individual. So

18 each individual that drank, depending on how much he

19 drank, how fast he drank them or her, that would make a

20 difference, yes, sir.

 

21 Q. And the amount or the speed that -- at which

22 the alcohol is consumed can make a difference as to the

23 blood-alcohol level at any given point in time; isn't

24 that a fact, sir?

 

25 A. Depends on what part of the time you're

577

 

1 talking about. If you're talking about while they're

2 still consuming, yes, sir, it can. After they've stopped

3 consuming, no, sir, that really doesn't have any effect

4 then.

 

5 Q. Doesn't the amount of time -- or, excuse me.

6 Strike that. Isn't it a fact that blood-alcohol levels

7 can continue to increase for a period of time after

8 alcohol consumption has stopped?

 

9 A. Yes, sir, it can.

 

10 Q. And how long and how fast it increases is

11 dependent upon a number of circumstances including

12 content of stomach and the drinking pattern itself; is

13 that not a fact?

 

14 A. Not so much the drinking pattern, but whether

15 or not what's in the stomach will have an effect, yes,

16 sir. It -- also how concentrated the alcohol is in the

17 drink that the person is consuming.

 

18 Q. There are a number of factors that can

19 influence how -- for how long a period of time alcohol is

20 absorbed into the blood system. Isn't that a well

21 established fact?

 

22 A. The only factor is how much other stuff is in

23 the stomach, how concentrated the alcohol is in the

24 stomach contents.

 

25 Q. Is it not recognized in the literature that

 

578

1 alcohol can be consumed -- absorbed in the body,

2 depending upon the food consumed and the amounts

3 consumed, for a period of three to six hours after the

4 last alcohol is consumed?

 

5 A. It has not been my experience to do that. I

6 know there is literature saying that, but I have not

7 found that to be true, no, sir.

 

8 Q. You haven't produced any literature on this

9 subject; isn't that a fact?

 

10 A. That is correct.

 

11 Q. And literature that is produced acknowledges

12 or indicates that their studies indicate that it can be

13 absorbed --

 

14 MR. WADDING: Well, I'm going to object, Your

15 Honor. I don't think I have to wait until the end of the

16 question. That is simply testifying, Your Honor. I

17 don't think that there is -- this witness has the

18 opportunity to see what he's even cross-examining him

19 about. I think he's entitled to do that as well.

 

20 COURT: I'm not considering questions as

21 evidence, and Mr. Correll's entitled to finish his

22 question. Go ahead.

 

23 MR. CORRELL: Could you -- I'm sorry to ask,

24 but could you start that again for me, please.

 

25 (At which time the requested portion of the

 

579

1 testimony was read back by the court reporter.)

 

2 Q. -- for three to six hours after the last

3 consumption. You acknowledge that is out there in the

4 scientific literature, do you not?

 

5 A. Some of the old literature uses those

6 figures, yes, sir.

 

7 Q. And that while it is being absorbed, the

8 blood-alcohol level can, in fact, be continuing to rise;

9 isn't that not the fact?

 

10 A. For a short time it will rise. Now, we're

11 talking two different things here when you're talking

12 absorption or peak alcohol concentration, so there's a

13 difference.

 

14 Q. My question is that it can rise after the end

15 of the consumption of alcohol; isn't that a fact?

 

16 A. For a short time, yes, sir.

 

17 Q. Are you familiar with a scientific researcher

18 and scientific author named Kurt Dubowski?

 

19 A. I know Kurt Dubowski, yes, sir.

 

20 Q. And is it not -- do you recognize him to be

21 an expert?

 

22 A. He says he is, and most people agree that he

23 is, yes, sir.

 

24 Q. My question is, do you accept him as an

25 expert?

580

1 A. For most things, yes, sir.

 

2 Q. Has more formal education in this area than

3 you, doesn't he?

 

4 A. And a lot more experience, both, yes, sir.

 

5 Q. And is he not of the opinion that retrograde

6 extrapolation is unreliable and should not be relied

7 upon?

 

8 MR. WADDING: I'm going to object. It's

9 outside of the scope, Your Honor.

 

10 COURT: Overruled. You may answer.

 

11 A. He -- Dr. Dubowski does not like to do it

12 with the information he has because he states that

13 normally you do not have complete information to make an

14 accurate estimation, so he is against it, as I normally

15 am.

 

16 MR. CORRELL: That's all the questions I

17 have.

 

18 COURT: Mr. Wadding?

 

19 REDIRECT EXAMINATION

 

20 BY MR. WADDING:

 

21 Q. You indicated -- do you know Mr. Dubowski?

 

22 A. Kurt Dubowski. Yes. He's a personal friend.

23 I know him. I've known him for a number of years.

 

24 Q. Does he -- has he ever engaged in retrograde

25 extrapolation?

581

1 A. Yes, sir, he does.

 

2 Q. And, in fact, do most experts in the alcohol

3 area engage in what has been referred to as retrograde

4 extrapolation?

 

5 MR. CORRELL: Excuse me. I'm going to object

6 to that. I think it's irrelevant as to -- the form of

7 the question. There's no foundation as to showing the

8 status of those people, whether they are experts, and

9 what other people may do is irrelevant.

 

10 COURT: Overruled.

 

11 A. The people in the field that I know that are

12 working in the field normally do it, yes, sir.

 

13 Q. You said that you would expect a rise in

14 alcohol -- alcohol concentration after consumption stops

15 for a short period of time; is that correct?

 

16 A. Yes, sir.

 

17 Q. Okay. And what kind of time are you talking

18 about?

 

19 A. We see it -- excuse me. We see an increase

20 in the alcohol concentration for normally about

21 15 minutes to a half an hour after consumption stops, so

22 the alcohol concentration rises for approximately 15 to

23 20 -- 30 minutes. After that it declines.

 

24 Q. You indicated that you run -- there's some

25 questions about calibration of the -- of the instrument.

582

1 Can you describe when you calibrate the instrument?

 

2 A. Actually I calibrate it whenever is

3 necessary. I check the calibration before I run any

4 tests. I also check it after I get done with a series of

5 tests. So I check it both before and after the actual

6 unknown blood samples.

 

7 Q. How do you check that?

 

8 A. I check that with known alcohol standards

9 that I have made up and checked out, made sure that they

10 are what they say they are, so I check it with these

11 known standards before I use the instrument and again

12 when I finish with a series of tests.

 

13 Q. Is that a pretty common thing to do for

14 people testing blood samples?

 

15 A. In the laboratories that I know of, yes, sir,

16 it is.

 

17 Q. They run known standards?

 

18 A. Yes, sir.

 

19 MR. WADDING: That's all the questions I

20 have. Thanks.

 

21 COURT: Mr. Correll?

 

22 MR. CORRELL: Thank you, Your Honor.

 

23

 

24

 

25

583

1 RECROSS-EXAMINATION

 

2 BY MR. CORRELL:

 

3 Q. Mr. Rayburn, are you familiar with a Journal

4 of Forensic Sciences?

 

5 A. Yes, sir.

 

6 Q. That is one of the premier journals

7 recognized in or utilized in this area of blood-alcohol

8 analysis, is it not?

 

9 A. It's one of the journals, yes, sir.

 

10 Q. And isn't it reported in that journal where

11 the average time of the last drink to the peak blood-

12 alcohol concentration of both males and females was found

13 to be approximately 91 minutes? Isn't that what the

14 literature indicates, sir?

 

15 A. I have seen such studies as that, depending

16 upon the circumstances, but I have seen studies such as

17 that, yes, sir.

 

18 Q. Ninety-one minutes is the average from -- to

19 get to the peak alcohol, from last drink to peak alcohol.

20 Isn't there scientific literature in the preeminent

21 journals that take that position?

 

22 A. I don't know if they take that position.

23 That's what has been reported.

 

24 MR. WADDING: Your Honor, I'd ask to object

 

25 at this point in time. First of all, I don't think it's

584

1 proper cross-examination or form for these purposes. I

2 believe that -- I think that -- I think it's Rule 613 of

3 the Rules of Evidence are required that this witness be

4 allowed at least to see the document that he's referring

5 to. I think that -- if that is not the case, the court's

6 not agreeing with that, I believe at least the state

7 would be entitled to a copy of the documents in which he

8 refers to. And I would -- I would make that request, and

9 I believe that my objection is appropriate and would ask

10 that it precede any answer that Mr. Rayburn has provided

11 up to this point.

 

12 COURT: If the witness needs to see the

13 literature that's being referred to, he may.

14 Are you familiar with it, or do you need to

15 see it?

 

16 WITNESS: I have seen that study, but I don't

17 recall whether it said peak alcohol or total absorption

18 from the stomach, and there would be a difference.

 

19 Q. Do you not acknowledge, sir, that there are

20 studies by reputable scientists that indicate that the

21 average time from last drink to peak blood-alcohol

22 concentration for both males and females was found to be

23 approximately 91 minutes?

 

24 A. I have seen those studies. Whether or not

25 these people are experts or authorities, I don't know. I

585

1 don't know them.

 

2 Q. And in -- regarding the -- Mr. Dubowski, it's

3 Dr. Dubowski, isn't it?

 

4 A. It's Dr. Dubowski.

 

5 Q. Did he not publish in the Journal of Forensic

6 Science, Volume 21, number 1, page 9, make this

7 statement, "It is unusual for enough reliable information

8 to be available in a given case to permit meaningful and

9 fair value to be obtained by retrograde extrapolation.

10 In -- if attempted, it must be based on assumptions on

11 certain validity or the answers must be given in terms of

12 a range of possibilities -- a range of possible values so

13 wide that it is rarely of any use." Isn't that a fair

14 summary of the statement of Dr. Dubowski on retrograde

15 extrapolation as you know it?

 

16 A. As those circumstances permit, yes, sir, that

17 is.

 

18 MR. CORRELL: Okay. That's all.

 

19 COURT: Mr. Wadding?

 

20 MR. WADDING: I don't have anything further.

21 Thank you.

 

22 COURT: Thank you. I'm sorry, but I need to

23 take six or seven minutes at this time. We'll reconvene

24 at 10:05. Thank you.

updated 12/13/16