(See also: Linear Regression
Defendant's Exhibit 2
)

MICHAEL REHBERG
DCI
CRIMINAL TRIAL


(Pages 458-523)

 

4 MR. WADDING: Call Mike Rehberg.

 

5 (Witness duly sworn.)

 

6 THE COURT: Please, have a seat.

 

7 THE COURT: Would you please state your name full

8 name.

 

9 THE WITNESS: My name is Michael L. Rehberg,

 

10 R-E-H-B-E-R-G, Mike.

 

11 THE COURT: Mr. Wadding.

 

12 MR. WADDING: Thank you.

 

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459

1 MICHAEL L. REHBERG,

2 called as a witness by and on behalf of the plaintiff,

3 having been first duly sworn by the Court, was examined

4 and testified as follows:

 

5 DIRECT EXAMINATION

 

6 BY MR. WADDING:

 

7 Q. Would you please state your occupation, Mr.

8 Rehberg?

 

9 A. I work for the State. My official job title is

10 Crime Laboratory Administrator, and I am a forensic

11 toxicologist.

 

12 Q. And could you describe your training and

13 education in achieving -- well, first becoming a forensic

14 toxicologist.

 

15 A. I went to high school and junior college in

16 Elgin, Illinois. From there I went to the University of

17 Wisconsin in Madison. I have a Bachelor of Science Degree

18 with a major in chemistry and a master's degree with a

19 major in physiological chemistry, which is the

20 biochemistry of human beings. I've attended Iowa, Iowa

21 State, and Wisconsin and obtained other course work in

22 chemistry and geology and a variety of subjects.

23 I have been certified by the American Board of Forensic

24 toxicology, and I belong to a number of scientific

25 organizations, and I have held this job for more than 20

 

460

 

1 years.

 

2 Q. And could you just briefly describe what a

3 forensic toxicologist does.

 

4 A. A toxicologist in general is a person that uses

5 chemistry to analyze samples from organisms, living or

6 dead, for the presence of chemicals that could be toxic;

7 could be detrimental to that organism. A forensic

8 toxicologist analyzes samples from human beings

9 of blood, breath, urine, postmortem tissues for the

10 presence of drugs or poisons and assesses the meaning of

11 those chemicals if they're found.

 

12 Q. And have you worked in the area of the effects of

13 alcohol on the human body?

 

14 A. Yes, I have.

 

15 Q. And can you describe what types of things you

16 have done with regard to alcohol and the effects on the

17 human body?

 

18 A. Of course, we've studied every chemical method

19 that could be used to analyze human specimens for alcohol.

20 And we've studied human beings and their response to

21 alcohol in studies, simply called human drinking studies,

22 where you take human volunteers who will agree to become

23 intoxicated. Using their body weight you calculate what

24 to feed them to get to the level they will agree to go to.

25 You test them before they drink to show they're not --

 

461

å

1 that they don't have alcohol in their system, and you test

2 them with regard to their coordination, dexterity, vision,

3 et cetera, to see what their baseline level of performance

4 is. Then you allow them to drink and you test them

5 afterwards and see how they change.

 

6 Q. And what kind of -- can you just describe some of

7 the things that you did to test individuals?

 

8 A. Well, at one time or another we've used all the

9 field sobriety tests that you might have heard of, the

10 standardized field sobriety test like how well they talk,

11 and the horizontal gaze nystagmus, and all of the

12 classical ones you think of, touching your nose, the

13 Romberg test where you close your eyes and put your head

14 back, picking up small objects, anything that a peace

15 officer has ever used really to help himself or herself

16 judge another human being to make a decision whether or

17 not they think that human being is intoxicated. And then

18 we've tested our people with devices: a reaction timer, a

19 driver's simulator, a device that measures the visual

20 acuity, the actual ability to see and perceive things and

21 make judgments about things that are distant, pre-arrest

22 breath testers, evidential breath testers, everything that

23 you can think of.

 

24 Q. If I could go -- the let me ask you some

25 questions about the visual acuity test that you speak of.

 

462

 

1 Could you describe what you do in measuring alcohol's

2 effects on vision?

 

3 A. Well, you can observe during the driver's

4 simulator some things, but the way it's best observed is

5 using a device that measures clarity and precision of

6 vision, and that's a device that's about 20 feet long, has

7 two small wooden pegs. Your goal is to look down this

8 tubular device and line up these two wooden pegs so they

9 are exactly next to each other. You -- whatever your

10 native capability is when you do not have alcohol in your

11 system, you begin to lose the ability to make that

12 judgment to see, perceive and align those two things as

13 your alcohol level goes up.

 

14 Q. And when we talk about aligning those two

15 objects, at least from your description, you're talking

16 about aligning the depth perception at that point?

 

17 A. It's actual clarity of vision. It's depth

18 perception. It's decision making. It's a divided

19 attention task.

 

20 Q. And that's with the obstacles in front of the

21 individual?

 

22 A. That's the obstacle; that's the goal of the test,

23 yes.

 

24 Q. And in that type of testing where do you see

25 effects of alcohol, at what levels do you see alcohol

 

463

 

1 affecting a person in a visual acuity test?

 

2 A. You begin to see deterioration at .05, sometimes

3 a little lower sometimes a little higher.

 

4 Q. And do you use the same type of test on

5 peripheral vision?

 

6 A. No, not to test the peripheral vision.

7 Peripheral vision is your ability to see to the side when

8 you look straight ahead. The test for peripheral vision

9 is done in a slightly different way.

 

10 Q. And can you describe how that's done?

 

11 A. It's a device into which you look and it has -- I

12 can't think of the word -- a diaphragm that closes down,

13 and you are asked to tell the tester when you can see that

14 diaphragm come into sight. It, of course, is opened at

15 the beginning so it's wide enough so you can't see it no

16 matter what. So you are tested before you take alcohol

17 in, you tell the tester when you can observe the device,

18 and that is measured as an angle. And then you're tested

19 after you drink and you tell the tester when you can now

20 observe the closed diaphragm.

 

21 Q. And does alcohol have an effect on a person's

22 ability or does alcohol diminish a person's peripheral

23 vision?

 

24 A. Yes, it does.

 

25 Q. And at what levels is peripheral vision affected?

464

 

1 A. It's generally always affected by .10 and can

2 again be affected sooner. In other words, your ability to

3 see to the side becomes contracted. When you are truly

4 greatly affected you have what's called tunnel vision

5 where you can only see up a small corridor.

 

6 Q. And does that include -- are you just talking

7 about the sides when you talk -- when you talk about

8 tunnel vision, what do you mean do you mean by "tunnel

9 vision"?

 

10 A. Well, when you have your complete capability with

11 regard to the peripheral vision you see a wide scope.

12 When alcohol begins to affect you, the scope of what you

13 see grows smaller. It's contracted so you cannot see to

14 the side as much. You can only see up a corridor before

15 you.

 

16 Q. Okay. Now, you also indicated that you have

17 tested the effects of alcohol on driving -- the driving

18 simulators, is that correct?

 

19 A. Yes, sir.

 

20 Q. And could you describe what type of testing is

21 done with a driving simulator?

 

22 MR. CORRELL: Excuse me, your Honor. I would object

23 to the form of that question. It's vague as to whether he

24 is referring to tests done by this individual or this

25 witness is relying on tests done by other individuals, and

465

 

1 I would ask to make my objection as to the vagueness of

2 the question.

 

3 THE COURT: Please clarify the question.

4 BY MR. WADDING:

 

5 Q. Have you conducted studies with human subjects

6 yourself on driving simulators?

 

7 A. Yes.

 

8 Q. Okay, and could you describe what the driving

9 simulator is depicting?

 

10 A. A driving simulator is a device in which you sit

11 in a chair that's like the seat of an automobile. You

12 have all the levers and pedals and buttons you need to

13 pretend you're operating an automobile. And you do that

14 in response to what you see on a television screen before

15 you. So you go through a scenario where you start an

16 automobile, you drive it, you go through a series of

17 manipulations with the automobile like parallel parking,

18 turning the vehicle, starting, et cetera. And, once

19 again, you do this before you consume the alcohol.

20 Subsequent to consuming alcohol you go through the

21 sequence again and the tester observes the human being to

22 see changes. You can detect changes in the ability to

23 respond to stimuli in the test to carry out the activities

24 required by the test, and things of that nature.

25 Q. And at what levels do you see driving being

 

466

1 affected in the simulator?

 

2 A. At .05 and sometimes lower.

 

3 Q. And you describe it as having them go through a

4 course before they begin drinking, is that correct?

 

5 A. Yes.

 

6 Q. And have them go through the course -- or go on

7 the driving simulator after they have had something --

8 some alcohol to drink, is that correct?

 

9 A. Yes, sir.

 

10 Q. And is it the same; are they seeing the same

11 visual cues as they saw when they weren't drinking, or is

12 it a new scenario?

 

13 A. The test won't be exactly the same in all

14 probability. There are a variety of scenarios. But the

15 tests are all similar in that you must start the car, must

16 operate it, drive it down the street, turn. You will

17 always have to parallel park and you will always be

18 subjected to some kind of surprise stress: a child

19 running out from behind a parked car, an animal doing the

20 same thing, a person pulling out in front of you from the

21 side of the road, those kinds of things, and you will have

22 to respond to something of that nature during the course

23 of the test.

 

24 Q. And are the subjects aware of that at the time

25 they're taking the test?

 

467

1 A. Yes it's one of the interesting aspects of the

2 test. Yes, they know what the components of the test are

3 going to be. They know in part what to expect and they

4 learn in part what to expect by taking the test when they

5 are in a state of sobriety.

 

6 Q. And what do you find interesting about that?

 

7 A. Well, the interesting thing is that even though

8 they learn what to expect, and depending on that

9 individual's capability of learning, they know what to

10 expect and they still cannot perform the test as well when

11 they're under an alcohol stress as they can without

12 alcohol.

 

13 Q. When you conduct tests with regard to alcohol and

14 its effect on human beings you indicated that -- do you

15 observe any difference in their gait or their walk?

 

16 A. You certainly can. That's one of the things that

17 is likely.

 

18 Q. And when you say you certainly can, what do you

19 mean by that?

 

20 A. Well, of course, one of the first things -- one

21 of the first capabilities in us that is affected when we

22 drink alcohol is balance, coordination, manual dexterity.

 

23 Q. And at what levels can that be affected?

 

24 A. Once again, certainly, by .05, sometimes sooner.

25 It depends on the individual.

 

468

 

1 Q. Now, in your position with the State of Iowa --

2 and that's with the Division of Criminal Investigation, is

3 that correct?

 

4 A. Yes, sir.

 

5 Q. Have you become familiar with or have you

6 conducted analyzes of blood samples?

 

7 A. Yes, I have and, yes, I do.

 

8 Q. And are you also familiar with the rates of

9 absorption of alcohol in the human system?

 

10 A. Yes, in general.

 

11 Q. And what do you mean "in general"?

 

12 A. Well, nobody -- we as human beings don't all do

13 it exactly the same. But alcohol is a very simple

14 molecule. The human body handles it very easily. It's

15 rapidly absorbed across the wall of the stomach and small

16 intestine. So you and I as human beings handle alcohol

17 similarly.

 

18 Q. When you say that we handle alcohol similarly,

19 what -- how long does it take, for instance, if it was a

20 12-ounce beer, how long does it take to absorb that into

21 our system?

 

22 A. Well, if you take one 12-ounce beer and drink it,

 

23 it will be absorbed into your system in 15 to 20 minutes,

24 reasonably.

 

25 Q. And is there anything that can affect its

 

469

 

1 absorption into the system?

 

2 A. Well, we're still talking about that one beer.

3 The only thing that could affect it is if you put

4 something else into your system with that beer. If you

5 put food in that could slow up the absorption. If you put

6 more alcohol in it may then require a longer time for all

7 of it to be absorbed.

 

8 Q. And are you familiar with -- or are you familiar

9 with the rates of elimination of alcohol from the human

10 system?

 

11 A. Yes.

 

12 Q. And how are you familiar with them?

 

13 A. Well, of course, in our studies we have evaluated

14 that in our subjects, and there's a large amount of

15 literature about human alcohol metabolism and the rate at

16 which human beings eliminate alcohol.

 

17 Q. And are there some standards that are used when

18 we talk about the rates of elimination in the human

19 system?

 

20 A. Yes.

 

21 Q. And can you describe what those are?

 

22 A. In real life terms it can be said that a human

23 being to metabolize -- all of us -- anyone of us can the

24 metabolize the equivalent of one drink in an hour. That's

25 one 12-ounce portion of beer, one one-ounce portion of

 

470

1 some kind of distilled beverage like vodka. In terms of

2 blood alcohol level that means we can decrease our level

3 by .015, or zero two per hour.

 

4 Q. Is that commonly referred to as the Widmark

5 factor?

 

6 A. That is a way of expressing one component of the

7 Widmark equation, yes.

 

8 Q. And could you just explain what the Widmark

9 equation is?

 

10 A. It's a mathematical equation expressed in

11 algebraic terms that can allow you to calculate blood

12 alcohol from the number of drinks and the body weight of

13 the person, or can allow you, if you know any one of those

14 two factors, to calculate the third.

 

15 Q. And is that commonly used in the area of alcohol

16 and the rates of elimination from the human body?

 

17 A. By some people, yes.

 

18 Q. And do you use the figures of .015 to .020 in

19 discussing rates of elimination?

 

20 A. Yes, I do. Usually, I use the one five for

21 females and two zero for men.

 

22 Q. And why is that?

23 A. I think in my opinion those most closely

24 represent what males and females do.

 

25 Q. And why do you say that?

 

471

1 A. Based on the work we've done and based on the

2 literature I've read.

 

3 Q. Mr. Rehberg, if an individual -- when we're

4 talking about the rates of absorption, does it matter

5 about an individual's weight?

 

6 A. No, not for the rate at which the alcohol

7 actually crosses across their stomach wall or intestinal

8 wall into the circulation, no.

 

9 Q. What kind of factors do you consider

10 determining rate of absorption then?

 

11 A. I would say the biggest factor would be whether

12 or not there was competing material in the stomach with

13 the alcohol for transport. In other words, whether or not

14 the alcohol was consumed on an empty stomach or with other

15 food.

 

16 Q. And if an individual indicated that they had last

17 eaten at 1:00 -- a large meal at 1:30 p.m. and described

18 themselves as having some oven baked French-fries at

19 sometime before 7:30 p.m., and described themselves as

20 having their last alcoholic beverage at 10:30 p.m., would

21 you be able to make a determination as to how long it

22 would take to absorb that last alcoholic beverage?

 

23 A. Well, by that scenario that person essentially

24 has an empty stomach at the end of the scenario when they

 

25 consume their last alcohol. So there should be no other

 

472

1 material competing with that alcohol for absorption into

2 the blood.

 

3 Q. And so how long -- how long would it take to

4 absorb that alcoholic beverage?

 

5 A. In a normal drinking scenario that last beer

6 would be absorbed in 15, 20, 30, minutes.

 

7 Q. Now, if that -- if the person had been drinking

8 prior to that, say they indicated they started drinking at

9 approximately 8:00 o'clock p.m., and having their last one

10 at 10:30, in terms of normal drinking behavior would that

11 change as to how long that one alcoholic beverage would be

12 absorbed?

 

13 A. No, not in a normal drinking scenario?

 

14 Q. And a normal scenario for human beings is to

15 consume a few drinks an hour over a period of hours until

16 they decide to stop and go on and conduct some other

17 business?

 

18 A. No, that doesn't mean one every 15 minutes

19 exactly, but it means two, three, four, an hour depending

20 on that person's desire and ability to drink.

 

21 Q. If that last beer was at 10:30 p.m. would you

22 expect that the majority of the alcoholic beverage would

23 be absorbed by 11:00 p.m.?

 

24 MR. CORRELL: Excuse me, your Honor, I'm going to

25 object that's a leading question.

 

473

1 THE COURT: Overruled. You may answer.

 

2 THE WITNESS: I would say that would be reasonable,

3 yes.

 

4 BY MR. WADDING:

 

5 Q. Now, if you had information that a blood sample

6 was taken from that same individual approximately an

7 hour -- well, an hour and 20 minutes later, would you

8 expect that there would be some elimination of alcohol

9 from that person's system?

 

10 MR. CORRELL: Excuse me, your Honor, I'm going to

11 object to that because there has been no foundation

12 adequately laid for this witness to answer that, and I

13 would like to have an opportunity to voir dire the

14 witness.

 

15 THE COURT: Go ahead.

 

16 MR. WADDING: Well, I think that if he's going to

17 make -- I'm going to object to that, your Honor, and ask

18 to be heard.

 

19 THE COURT: Go ahead and be heard.

 

20 MR. WADDING: If he is going to make a foundational

21 objection, your Honor, then I think he should make it and

22 identify where my foundation is lacking and I have the

23 opportunity to correct that. I don't think that it's

24 appropriate to voir dire the witness at this point in

25 time.

 

474

 

1 THE COURT: Where do you feel the foundation is

2 lacking, Mr. Correll?

 

3 MR. CORRELL: I think the foundation is lacking

4 because there is no indication as to what his

5 understanding is as to the consumption rate.

 

6 THE COURT: The objection is overruled on those

7 grounds.

 

8 BY MR. WADDING:

 

9 Q. Could you make a determination on the scenario

10 that I have given you so far whether elimination of

11 alcohol has occurred?

 

12 A. Yes, I can make a judgment about that.

 

13 Q. And can you just explain why you can make a

14 judgment about that?

 

15 A. Well, based on the hypothetical scenario you've

16 described, this person would have absorbed whatever

17 alcohol remained in their system after the cessation of

18 drinking in 30 minutes or so and would have definitely

19 reached whatever their maximum was going to be and would

20 have been -- would be on the way back down to zero when

21 you conducted the test you spoke about.

 

22 Q. And if in that period of time, that one hour and

23 20 minutes in that scenario as I described, how much

24 alcohol would you expect to be eliminated?

 

25 A. Using the figure I commonly use for males, .02,

 

475

 

1 the person would have had the ability to decrease their

2 alcohol level by about .03 or .028, in that neighborhood.

3 So depending on what the test was they would be about that

4 much higher than the test.

 

5 Q. And if you assume that this individual I'm

6 speaking of is a male you would use the .020 factor?

 

7 A. Yes, sir.

 

8 Q. And if you were to -- and what scenario would you

9 use .015 factor?

 

10 A. I would use that if it was a female human being.

 

11 Q. And are you familiar with the case of the State_ _____

12 of_Iowa_vs._Tracy_Rokes? __ ____ ___ _____ _____

 

13 A. Am I familiar with it?

 

14 Q. Have you had any involvement in it?

 

15 A. I have heard that person's name. My laboratory

16 has analyzed a sample that came from that person.

 

17 Q. Okay, and do you know what the result of that

18 sample was?

 

19 A. Yes.

 

20 Q. Okay, and it was --

 

21 MR. WADDING: May I approach, your Honor?

 

22 THE COURT: You may.

 

23 (Paper handed to witness.)

 

24 BY MR. WADDING:

 

25 Q. I believe that -- and State's Exhibit H, is that

 

476

 

1 the -- would that be the report from your lab?

 

2 A. Yes, it would.

 

3 Q. And Mr. Rayburn, he's a criminalist for your lab?

 

4 A. That's correct.

 

5 Q. He did the analysis in this case, is that

6 correct?

 

7 A. That's correct also.

 

8 Q. And his result indicated that the defendant's

9 blood alcohol level was what, at what level?

 

10 A. .087 grams per hundred.

 

11 Q. And assuming that my scenario that I described to

12 you would fit with regard to the rate of the elimination,

13 what would -- what additional -- what would you add to

14 that figure of .087?

 

15 MR. CORRELL: Excuse me, your Honor, I'm going to

16 object to that as an absolutely improper hypothetical

17 question. There is no showing whatsoever or presentation

18 of facts pertinent to allow this witness to offer an

19 answer to that question by opinion testimony.

 

20 THE COURT: Mr. Wadding, just so that I am certain for

21 my purposes as to what the hypothetical is, I ask that you

22 restate the hypothetical, what facts are being assumed.

 

23 BY MR. WADDING:

 

24 Q. You're assuming that you have a male who has

25 discarded -- he has eaten at 1:30 p.m. and -- excuse me,

 

477

 

1 for the major meal that he's eaten some baked French-fries

2 at -- sometime before 7:30 p.m. That the person, who is

3 an adult male, began drinking at 8:00 o'clock p.m. and

4 stopped drinking at 10:30 p.m. And was involved in an

5 automobile accident at approximately 11:00 o'clock p.m.

6 And a blood sample was drawn at approximately an hour and

7 20 minutes later or at 12:20 a.m. And from that the

8 result was .087. Could you make a determination of what

9 his the alcohol content would be at 11:00 o'clock p.m.?

 

10 A. We can make a reasonable judgment about that,

 

11 yes.

 

12 Q. And what would your reasonable judgment be?

 

13 MR. CORRELL: Excuse me, your Honor, I'm going to

14 object based upon the actual words which the witness has

15 used on two occasions, reasonable judgment. Reasonable

16 judgment does not meet the definitional specificity

17 required to give an opinion. Expert opinion testimony

18 can't be given if based on a judgment.

 

19 THE COURT: Overruled, you may answer.

 

20 THE WITNESS: Now, I can answer?

 

21 THE COURT: Yes, sir?

 

22 THE WITNESS: Yes, the opinion would be that the

23 person's alcohol level by the hypothetical you've

24 described would be at .115 or so at the 11:00 p.m. time.

 

25 BY MR. WADDING:

 

478

 

1 Q. And at that level would what type of impairment

2 would be -- well, let me ask you this: At that level is

3 an individual considered to be impaired?

 

4 A. In my opinion, yes.

 

5 Q. Do you consider -- at what level do you consider

6 a person to be impaired?

 

7 MR. CORRELL: Excuse me, your Honor, I'm going to

8 object to that as irrelevant as to what this witness would

9 consider that.

 

10 THE COURT: Overruled, you may answer.

 

11 THE WITNESS: There are a number of criteria for that.

12 My personal one is that I am most comfortable with using

13 the .08 level that is espoused by the National Safety

14 Congress as being the threshold above which human beings

15 are deemed to be intoxicated.

 

16 BY MR. WADDING:

 

17 Q. And is that where measurable impairment would

18 begin then, at .08?

 

19 A. No, sir, not in my opinion.

 

20 Q. Where does measurable impairment begin?

 

21 A. Certainly at .05 in all probability, and perhaps

22 lower, and you can find the person at which it begins at a

23 higher level. You can find some people that way.

 

24 Q. If you were to have the scenario as I had

25 indicated before, and the additional facts placed in that

 

479

 

1 that individual was operating a motor vehicle, that that

2 individual failed to stop at a flashing red light and was

3 involved in a motor vehicle accident, and that they were

4 observed staggering subsequent to that accident,

5 intersection accident, would you have an opinion as to

6 whether that individual was affected by the alcohol?

 

7 MR. CORRELL: Excuse me, your Honor, I'm going to

8 object to that hypothetical. That hypothetical assumes

9 facts not in this record. It invades the province of the

10 trier of the case.

 

11 THE COURT: Overruled, I'll allow it. You may answer.

 

12 THE WITNESS: In my opinion, as a toxicologist, those

13 physical things, those observations are completely

14 consistent with recognizing that person as being under the

15 influence of alcohol or affected by alcohol. Those are

16 the kinds of symptoms one might expect to see.

 

17 MR. WADDING: That's all the questions I have. Thank

18 you.

 

19 THE COURT: Mr. Correll.

 

20 CROSS-EXAMINATION

 

21 BY MR. CORRELL:

 

22 Q. Mr. Rehberg, how old are you, sir?

 

23 A. 57.

 

24 Q. And during the course of your lifetime have you

25 ever unintentionally inadvertently violated a traffic law?

 

480

 

1 A. I expect I have. I can't give you a specific

2 example, but I'm sure I must have.

 

3 Q. Wouldn't you agree from time to time virtually

4 everybody has inadvertently sped?

 

5 A. "Inadvertently," I would say that is a good

6 likelihood, yes.

 

7 Q. It's almost a certainty really, isn't it?

 

8 A. Yes, I would say that's a reasonable statement.

 

9 Q. And would you agree that during your lifetime

10 that at some point in time you missed a stop sign?

 

11 A. Sure, yes.

 

12 Q. And would you agree that at sometime during your

13 lifetime in the operation of your vehicle that you would

14 have missed a stoplight?

 

15 A. Yes, I'm sure I have.

 

16 Q. And we all have done that and that is not in and

17 of itself indicative of somebody who has consumed alcohol

18 to the point of impairment, wouldn't you agree with that?

 

19 A. You are correct.

 

20 Q. And so it would be unfair and incorrect to assume

21 that because there is an accident that there was

22 automatically impairment; that would not be a fair

23 deduction, would it?

 

24 A. No, if you take those two -- if you take that

25 isolated thing, that car crash, that doesn't automatically

 

481

 

1 mean that there is alcohol involved, that's correct.

 

2 Q. And, in fact, the far biggest majority of car

3 crashes do not -- that take place in the State of Iowa do

4 not involve the impairment of the driver by alcohol; isn't

5 that a fact?

 

6 A. I don't specifically know, but I would say that's

7 reasonable, yes.

 

8 Q. There are accidents all the time where people for

9 one reason or the other don't see the intersection, don't

10 see the stop sign, correct?

 

11 A. That -- yes, that happens.

 

12 Q. And there -- and when there are -- there are

13 reactions where people don't see the child run out in

14 front of them, don't make the stop, that happens all the

15 time, doesn't it?

 

16 A. Unfortunately, yes.

 

17 Q. Where people are talking to the people that are

18 riding with them and they don't see, they don't make the

19 quick reaction; that happens all the time doesn't it, sir?

 

20 A. If by "all the time" you mean "frequently," I'd

21 say, yes.

 

22 Q. It's going to happen today someplace in the State

23 of Iowa, isn't it?

 

24 A. It will in my opinion, yes.

 

25 Q. Now, with regard to your involvement in law

 

482

 

1 enforcement, you have been there for 20 plus years

2 involved basically as a law enforcement officer, is that

3 correct?

 

4 A. No, sir.

 

5 Q. Are you considered -- do you consider yourself to

6 be a law enforcement officer?

 

7 A. No, sir, I'm not a peace officer. I'm a

8 scientist.

 

9 Q. You work consistently with the law enforcement

10 arm of the Bureau -- or I guess now the Department of

11 Criminal Investigation?

 

12 A. The laboratory is a part of what's now called the

13 Division of Criminal Investigation, yes, and we work with

14 the whole criminal justice system, yes.

 

15 Q. Have you ever been involved in offering any

16 information regarding the levels for OWI to legislatures,

17 legislators in the State of Iowa?

 

18 A. As a matter of fact, I do not think I have. I

19 have never been called to testify about that. I have been

20 called to testify about a lot of things, but not about the

21 per se level.

 

22 Q. Have you written memos regarding that, letters,

23 correspondence?

 

24 A. Well, I'm sure I have, yes.

 

25 Q. And during the course of your career when you

 

483

 

1 first got started the level, was it not, it used to be a

2 one -- a .150 level?

 

3 A. In my experience in forensic science I have never

4 been in a place where that was true. I have heard that

5 frequently; that there was a time when the accepted or

6 statutory level was .15.

 

7 Q. In Iowa?

 

8 A. Yes, sir.

 

9 Q. And that was only a presumption historically,

 

10 wasn't it? It was a rebuttable presumption; do you recall

11 that?

 

12 A. That was my understanding, yes.

 

13 Q. A rebuttal presumption to 1.50 to a per se at

14 1.50; is that your understanding as well?

 

15 A. I do not know if that happened. That was before

16 my tenure here.

 

17 Q. Okay, and it has been at a per se level of .10 in

18 the State of Iowa for in excess of five years, isn't it?

 

19 A. I would say approximately eight to ten years.

 

20 Q. And are you aware that some people have proposed

21 that it be reduced to less than that?

 

22 A. Sure, yes.

 

23 Q. And those efforts to date have not been

24 successful, have they?

 

25 A. You are correct.

 

484

 

1 Q. And at this point in time you recognize, of

2 course, that the per se level in the State of Iowa is

3 point one -- .010; is that a fair statement?

 

4 A. No, sir.

 

5 Q. Isn't that the per se level?

 

6 A. No, you put the decimal point in the wrong place.

 

7 Q. Okay. .10?

 

8 A. That's correct.

 

9 Q. So one one-hundredth, the scientists don't call

10 it that, but you know what everybody means?

 

11 A. Yes, it's .10 grams per 100 milliliters of blood.

 

12 Q. Okay. And, obviously, the test that was done on

13 Mr. Rokes does not reach that level, does it?

 

14 A. That's correct.

 

15 Q. And what you have done is use a procedure -- and

16 that procedure is called retrograde extrapolation, isn't

17 that a fair statement?

 

18 A. Some people might call it that. I would not.

 

19 Q. But when you go back -- when you attempt to take

20 a specimen test and go back, that in the scientific

21 community is referred to as retrograde extrapolation,

22 meaning you're extrapolating, calculating backwards?

 

23 A. We're calculating backwards, that's correct, and

24 there are some people who would call what we did today

25 retrograde extrapolation.

 

485

 

1 Q. And is there a formula for retrograde

2 extrapolation?

 

3 A. It's a simple calculation. I could make you up a

4 formula but I do not have an algebraic formula available

5 right now.

 

6 Q. Mr. Rehberg, I'm going to hand to you -- after

7 the reporter marks it. If you would mark this as

8 Defendant's Exhibit 2, please.

 

9 (Defendant's Exhibit 2 was marked for

10 identification.)

 

11 Mr. Rehberg, I'm going to hand you a yellow sheet

12 of paper that has been marked Defendant's Exhibit 2, and I

13 would ask you to write down the formula that you utilized

14 for the purposes of your testimony.

 

15 A. (Witness does so.)

 

16 THE COURT: This is the formula, Mr. Correll, that you

17 referred to as extrapolation -- retrograde extrapolation?

 

18 MR. CORRELL: Yes, sir.

 

19 THE COURT: Show it to Mr. Correll.

 

20 BY MR. CORRELL:

 

21 Q. Could you put -- sign at the bottom there.

 

22 A. (Witness does so.)

 

23 Q. Okay. Mr. Rehberg, is what you have written

24 on -- what I had the reporter mark as Defendant's Exhibit

25 2 -- is that the formula that is basically what is

 

486

 

1 regarded as the retrograde extrapolation formula?

 

2 A. Some people would call it that. I would not call

 

3 it that.

 

4 Q. In the overall chemistry community wouldn't this

5 be known as the retrograde formula?

 

6 A. I would say you might find that a majority of

7 toxicologists say that.

 

8 Q. Isn't that a fact, sir?

 

9 A. I differentiate toxicologists from --

 

10 Q. Isn't it a fact that --

 

11 THE COURT: One at a time.

 

12 MR. WADDING: Your Honor, I would ask that the witness

13 be allowed to answer the question.

14 THE COURT: Please, finish your answer, Mr. Rehberg.

15 THE WITNESS: I would like to clarify by saying I

16 differentiate toxicologists from chemists. Most chemists

17 have no knowledge of this whatsoever. This is a very

18 small thing in science. Only people that work in criminal

19 laboratories really care about this, and so many

20 toxicologists would know and understand that, and if you

21 polled them you might find the majority of them call it

22 retrograde extrapolation. I do not personally do that.

 

23 BY MR. CORRELL:

 

24 Q. So the fact that the majority would call this the

25 retrograde extrapolation formula, it is your personal

 

487

 

1 choice not to refer to it by that definition, would that

2 be fair to say, sir?

 

3 A. I think we've established that very very well.

 

4 Yes, I agree with that.

 

5 Q. And the people that would refer to this as the

6 retrograde extrapolation formula, they're not wrong, are

7 they?

 

8 A. It's their choice of words. They choose to

9 express it that way. I would not say that's wrong, no.

 

10 Q. That was my question. Now, with regard to that

11 formula, retrograde extrapolation is an effort to take a

12 known test result and go backwards to a time and try to

13 anticipate what the level would have been at another time,

14 is that a fair statement?

 

15 A. That's a good description, yes.

 

16 Q. And are you familiar with an individual by the

17 name of Curt Dubowski?

 

18 A. Sure he signed my certification.

 

19 Q. And is that spelled D-U-B-O-W-S-K-I?

 

20 A. It is.

 

21 Q. And is he well regarded in the scientific

22 community in the area of blood alcohol analysis?

 

23 A. I would say, yes.

 

24 Q. And isn't it a fact that he is a person who is of

25 the opinion that there is no reliability in the retrograde

 

488

 

1 extrapolation formula?

 

2 A. He's made that statement, yes.

 

3 Q. Well, he's made it more than a statement. He's

4 made that in scientific publications, has he not?

 

5 A. Those two facts are equivalent to me. The answer

6 to that question is yes.

 

7 Q. He has published -- he has published saying that

8 the retrograde extrapolation theory is unreliable, isn't

9 that a fact?

 

10 A. He has made that statement and he has published

11 that, yes.

 

12 Q. And isn't he one of if not the preeminent

13 authority in the United States on blood alcohol?

 

14 A. I think it could be reasonably said he's one of,

15 yes.

 

16 Q. And isn't it a fact that there are no scientific

17 peer review committees in the United States that have

18 accepted the retrograde extrapolation theory, isn't that a

19 fact, sir?

 

20 A. I do not know.

 

21 Q. With regard to Mr. Rokes would it be fair to say

22 you don't know Mr. Rokes in this courtroom?

 

23 A. That's a fair statement, yes.

 

24 Q. You're assuming he's the gentleman to my left,

25 correct?

 

489

 

1 A. I make no assumptions whatsoever about who Mr.

2 Rokes is.

 

3 Q. Have you read any of the police reports regarding

4 Mr. Rokes?

 

5 A. I have not.

 

6 Q. Have you read Mr. Rokes' statement?

 

7 A. I have not.

 

8 Q. Do you know Mr. Rokes' weight?

 

9 A. I do not.

 

10 Q. With regard to the amount that he ate, do you

11 know how much Mr. Rokes ate during the course of the day?

 

12 A. I do not.

 

13 Q. Do you know how much he ate in the evening?

 

14 A. I do not.

 

15 Q. Do you agree that there are some substances when

16 consumed that last longer in the stomach and stay longer

17 in the stomach than others?

 

18 A. Sure, yes.

 

19 Q. And isn't it a fact that fatty foods, also

20 buttery types of foods, last longer in the stomach prior

21 to absorption?

 

22 A. They remain in the stomach in general for a

 

23 longer period of time, yes.

 

24 Q. Okay, and that would certainly include

25 French-fries, wouldn't it?

 

490

 

1 A. Well French-fries is a mixture of complex

2 carbohydrates and the oil in which they are cooked. So

3 the answer to that is, yes and no.

 

4 Q. They certainly remain non-absorbed longer than

5 many other types of foods, would you agree with that,

6 French-fries?

 

7 A. French-fries will not be absorbed in the stomach.

8 French-fries will remain longer in the stomach before

9 passing into the intestine than many other kinds of food.

 

10 Q. And when those items stay in the stomach longer

11 that slows the absorption rate down of alcohol, does it

12 not?

 

13 A. It could if there was a sufficient amount for

14 that to affect everything. It could happen, yes.

 

15 Q. And isn't what actually happens is that when the

16 alcohol is in the stomach? It is absorbed much slower

17 than when it is in the intestine?

 

18 A. In general it is absorbed slower, yes.

 

19 Q. And it is absorbed slower in the stomach because

20 of the contents of the stomach that you have just

21 described in your direct testimony, correct?

 

22 A. In the hypothetical you are describing to me now

23 where there is sufficient French-fries in the stomach to

24 affect absorption of alcohol, the answer to that question

25 is, yes.

 

491

 

1 Q. And to know whether there would be sufficient

2 French-fries in the stomach you would have to know two

3 things, wouldn't you: one, how they were prepared and,

4 two, how much and when they were eaten? I guess really

5 three things.

 

6 A. Well, I'm greedy. The more you tell me, the more

7 information you give me, the happier I will be. That kind

8 of information could help me in the hypothetical or in a

9 real life situation.

 

10 Q. And as you sit here today you don't know that

11 information, do you?

 

12 A. I do not specifically know about that man on that

13 night.

 

14 Q. Nor how much food he had to eat?

 

15 A. I do not specifically know about that man on that

16 night. I was not there.

 

17 Q. Okay, and that certainly would be, would it not,

18 a factor that ideally should be known?

 

19 A. It depends on what you want me to do. If you

20 want me to analyze that specific man and his scenario on

21 that night, the answer to that question is, yes.

 

22 Q. And isn't it a fact that one of the things that

23 law enforcement offices or departments typically do is

24 they have a drinking driver questionnaire? Are you

25 familiar with those?

 

492

 

1 A. Yes, yes.

 

2 Q. And were you in part responsible for having input

3 in or development into any of those questionnaires?

 

4 A. No, not in any way.

 

5 Q. Are those -- do those questionnaires typically

6 ask -- solicit information about how much a person drank?

 

7 A. As I recall they do, yes.

 

8 Q. And the time that people drank?

 

9 A. If memory serves me correctly that also is part

10 of the questioning.

 

11 Q. And the food, the kind of food and when it was

12 last consumed, would that also --

 

13 A. That's a part of it also.

 

14 Q. And that information is designed to be collected

15 so a person ultimately such as you, who has your greed for

16 the facts, can be satisfied; isn't that a fair statement,

17 sir?

 

18 A. I'm not sure I'm prepared to climb onto the

19 pinnacle you just attempted to place me upon. Certainly,

20 that information may -- is collected so it can be used by

21 the criminal justice system. Sometimes it might get to

22 me. Sometimes it just goes in a file and doesn't get used

23 for anything.

 

24 Q. But it's collected for a reason, isn't it?

 

25 A. Yes, that's reasonable.

 

493

1 Q. And it's collected for the reason that might help

2 a person such as you in your analysis, isn't that correct?

 

3 A. Well, I'm one of the people it might help, yes.

 

4 Q. And in this case you don't have that information,

5 isn't that in fact correct?

6 A. You are correct.

 

7 Q. Now, with regard to the literature, isn't it a

8 fact that people -- and of course depending on the amount

9 and the type of food, that at some point in time people

10 still in the absorbing mode after consumption of

11 alcohol from three to six hours after the last consumption

12 of alcohol?

 

13 A. I'm afraid you'll have to read that back to me.

 

14 Q. Okay. Isn't it written in the literature as an

15 accepted scientific fact that depending upon the amount of

16 food and the type of food that the absorption period of

17 alcohol can continue to go up from as much as three to six

18 hours after the last consumption of alcohol?

 

19 A. I would say I expect you can find that in the

20 literature if you look.

 

21 Q. And am I not correct that basically after a

 

22 person stops drinking, has their last consumption of

23 alcohol that their alcohol blood level will continue to

24 increase for some period of time after they have stopped

25 drinking?

 

494

 

1 A. That's possible depending on the way they consume

2 alcohol. In general, in the types of scenarios I have

3 been discussing, when a person stops drinking they have

4 some in the intestine and stomach they absorbed and

5 metabolize for a period of time. So they stay at about

6 the same level and then they begin to go down.

 

7 Q. But you have to know the drinking pattern before

8 you can make that deduction, isn't that a fact?

 

9 A. (No audible response.)

 

10 Q. The --

 

11 A. That can help you in your judgment.

 

12 Q. And you do not know the drinking pattern of Mr.

13 Rokes on this evenings evening, do you?

 

14 A. I was not there that night. I did not see Mr.

15 Rokes.

 

16 Q. Isn't it a fact that the -- while there is the

17 absorption process going on that a person's blood alcohol

18 will continue to rise?

 

19 A. That's the only way it can happen. If absorption

20 is going on and if absorption is sufficient so that it

21 goes faster than metabolism, then the blood alcohol will

22 go up. That is the basis of the whole thing.

 

23 Q. And that's how the blood alcohol gets into the

24 blood; it is absorbed through the stomach wall or through

25 the intestine, is that correct?

 

495

1 A. Yes, sir.

 

2 Q. And so there is a period of time typically after

3 a person stops drinking that their level goes up and then

4 it starts to go down, is that not a fair statement?

 

5 A. That's one possibilities. That's not what

6 happens in most social drinking scenarios, but that's one

7 of the possibilities.

 

8 Q. And what happens in a social -- do you have a

9 definition, a recognized scientific definition as to what

10 constitutes social drinking?

 

11 A. Yes, I do in my opinion.

 

12 Q. But there is -- I mean, I understand you have

13 your opinion. But there is no scientific definition for

14 the purposes of this formula as to what constitutes social

15 drinking, isn't that a fact?

 

16 A. In my opinion, since I'm a scientist and I have

17 an opinion it's a scientific opinion. Certainly, you can

18 find scientists who don't agree with me.

 

19 Q. But there is -- there is no dictionary -- we

20 cannot go to the chemists or to the forensic

21 criminologists because there is no accepted definition, a

22 universally accepted definition as to what constitutes

23 social drinking; would you agree with me on that?

 

24 A. That's correct, you can't go to any dictionary

25 and find it.

 

496

 

1 Q. So in the -- there are many situations, are there

2 not, where after the last drink the level goes on up for a

3 period of time?

 

4 A. You can make almost an infinite number of

5 hypothetical alcohol situations and many of them will

6 allow for the alcohol to go up after the cessation of

7 drinking. Many of them will allow -- most of them will

8 allow for the alcohol to plateau for a while and some will

9 allow for the alcohol to begin to go down instantly at the

10 cessation of drinking.

 

11 Q. Isn't it fair that what you know -- relative to

 

12 Mr. Rokes you don't know whether his -- you don't know

13 enough facts to know whether his alcohol level was going

14 up or whether his alcohol level was going down at the time

15 of this accident, isn't that accurate, sir?

 

16 A. I have not said a single word about Mr. Rokes. I

17 have answered hypothetical questions.

 

18 Q. And so your answer is no better than the

19 hypothetical facts that you have been given; that's

20 obvious, isn't it?

 

21 A. I would say that is a correct statement, yes.

 

22 Q. And so you don't know whether Mr. Rokes' blood

23 alcohol level for a fact was lower or higher at 11:0

24 o'clock p.m. on October 4, 1996, isn't that a fact, sir?

 

25 A. You can set up real life situations or

 

497

 

1 hypotheticals that allow for that. I was not there that

2 night with Mr. Rokes. I do not know.

 

3 Q. So the answer is you do not know what his level

4 was at 11:00 o'clock on October 4, 1996, isn't that a fair

5 statement, sir?

 

6 A. I was not there with Mr. Rokes that night. I do

7 not know.

 

8 Q. Now, is there not -- I believe you indicated that

9 on an empty stomach -- did you indicate, sir, that there

10 is approximately 20 to 30 minutes that a person absorbs,

11 continues absorption after they have stopped drinking on

12 an empty stomach?

 

13 A. In most drinking scenarios, yes.

 

14 Q. And isn't it, in fact, recognized in the

15 literature that the absorption process frequently takes

16 place from 90 to 180 minutes?

 

17 A. You can find that statement in the literature

18 based on certain drinking scenarios, yes.

 

19 Q. And so under that scenario typically if from

20 11:00 o'clock to really 12:30 or even 1:30 the alcohol

21 level still could be increasing?

 

22 A. You can create a hypothetical scenario that will

23 allow for that, yes.

 

24 Q. And isn't the scientific literature indicating

25 that it is a longer time than 30 minutes before absorption

 

498

 

1 ceases on an empty stomach? That is the lower range of

2 that time frame, is it not?

 

3 A. 15, 20, 30 minutes is what reasonably takes place

4 in these scenarios. You can create a scenario where it

5 takes much longer. You can create one where it doesn't

6 take that long.

 

7 Q. Isn't it a fact that the literature indicates

8 that the absorption process on an empty stomach, the

9 average time continues for 57 minutes? Isn't that a fact?

 

10 A. The average time, I do not know that that's in

 

11 the literature. But you may find that statement in the

12 literature. That's possible.

 

13 Q. So if the average time would be 57 minutes on an

14 empty stomach, for that 57 minutes from the time of the

15 last drink there would still be an increasing blood

16 alcohol, would that not be correct?

 

17 A. No, that's not correct.

 

18 Q. If the absorption is going on it may well be a

19 continuing increasing blood alcohol level?

 

20 A. That's one of the three possibilities.

 

21 Q. Okay.

 

22 A. The three possibilities are while absorption is

23 continuing the alcohol may go up, the alcohol may stay the

24 same, and the third one would be the alcohol may be going

25 down while absorption is taking place.

 

499

 

1 Q. And the fact of the matter is a person cannot say

2 which one of those three it is with any certainty, isn't 

3 that a fact?

 

4 A. Well, certainly there is a way to do that. We

5 can't do that today here in this courtroom, but there's a

6 way to do that.

 

7 Q. Okay, and you can't do it for Mr. Rokes, can you,

8 sir?

 

9 A. I do not pretend to be able to do it for Mr.

 

10 Rokes. I was not there that night.

 

11 Q. With regard to the walking, would you think that

12 somebody who has been in an automobile accident a serious

13 automobile accident where two vehicles collide, and one

14 going 45 and the other one going 55, that that individual,

15 the individuals in there could be stunned?

 

16 A. That's possible, yes.

 

17 Q. And could that affect their gait to some extent?

 

18 A. It could, yes.

 

19 Q. And there are other things that could affect a

 

20 person's gait or balance other than alcohol; would you

21 agree with that, sir?

 

22 A. Of course, yes.

 

23 Q. And if the record would indicate that the person

24 was observed walking into the hospital at 11:25 and their

25 gait was steady, would that be of some significance to

 

500

 

1 you?

 

2 A. That could be an indicia that alcohol was not

3 affecting a person. It might not mean it in this case.

4 But it could be that kind of an indicator, that isolated

5 fact.

 

6 Q. Okay. With regard, sir, to the vision, the test

7 that you give where you have the strings, that's the kind

8 of test they give to people many times for employment

9 purposes where you have these strings and you try to get

10 the two fingers that come down equidistant apart or equal?

11 A. I can envision some occupation where that

12 capability -- where it would be good to judge the

13 prospective employee that on that capability. But I'm not

14 aware that that's done anyplace.

 

15 Q. And the fact that -- is that ever done for people

16 that are trying to get any kind of employment that you are

17 aware of?

 

18 A. I'm not aware that it's done in any

19 pre-employment testing situation, but I can think of some

20 occupations where it might be reasonable to do it.

 

21 Q. And it's correct, is it not, that at .50 a person

22 would certainly be capable of seeing a red light, would

23 they not?

 

24 A. No, at .50 a person would be at least unconscious

25 or perhaps --

 

501

 

1 Q. I misplaced the decimal point and I'm sure you

2 understood me.

 

3 A. You said ".50," sir, and I can only answer your

4 questions.

 

5 Q. And that's fair. At .050.

 

6 A. I'm sorry, you distracted me on the number.

 

7 Could you read the question back.

 

8 Q. Could you read that back to him, Scott.

9 (Whereupon, the court reporter read back as

10 follows: "Q. And that's fair. At .050."

 

11 A. I'm sorry, I don't know what is fair. I do not

12 know what you want to ask me at .050.

 

13 Q. At .010, is that the level that you indicated

14 peripheral vision could be affected?

 

15 A. No, sir.

 

16 Q. Is that the level you indicated that it was found

17 to be affected?

 

18 A. No, sir.

 

19 Q. With regard to the work that you say you have

20 done, have you published those findings anyplace?

 

21 A. No, sir.

 

22 Q. Would you agree that Mr. Dubowski is certainly a

23 more published researcher than you?

 

24 A. More published, absolutely, yes.

 

25 Q. And what is his degree in, sir?

 

502

 

1 A. He's got a PhD and I think it is in physiology or

2 something that's a medically related science.

 

3 Q. And I am correct you do not have a PhD, is that a

4 fair statement?

 

5 A. You are correct.

 

6 Q. With regard to the gait and walk, you indicated

7 as I understand it a person's gait and walk is certainly

8 likely to be affected at .050 or higher, am I correct in

9 that?

 

10 A. I would say the probability is high of that, yes.

 

11 Q. Now, with regard to this retrograde

12 extrapolation, one of the ways to know, of course, would

13 be to have two tests, wouldn't it, one test close to the

14 incident that is of concern and a second test at a

15 subsequent time; that would be the best indicator as to

16 whether or not a level is increasing or decreasing, would

17 you agree with that?

 

18 A. No, I would not.

 

19 Q. Would you agree that would be a way to know?

 

20 A. That's a possible way to know, but that's not the

21 best indicator.

 

22 Q. If you knew what the level was say at 2:00 in the

23 afternoon and you knew again what the level was at 2:30,

24 you would know the level has either gone up, stayed the

25 same or gone down, would you not?

 

503

1 A. You might if the level was changing rapidly

2 enough. You might be able to tell it. Those two tests

3 are so close you probably wouldn't be able to tell and

4 those would not be, in your own words, the best indicator.

 

5 Q. Okay. If a person would have -- let me strike

6 that. Are you familiar that sometimes law enforcement is

7 encouraged to wait a period of time prior to -- from the

8 incident in question prior to giving the test?

 

9 A. No, I am not.

 

10 Q. Have you ever heard of that?

 

11 A. It happens all the time routinely. I have never

12 heard that law enforcement officers are told that's a good

13 idea and I would not tell them that.

 

14 Q. Would you know why if a person consents to an

15 alcohol test at 11:43, why it would be deferred, the

16 withdrawal, to 12:20 or 12:28? Would there be any

17 scientific reason to do that?

 

18 A. No, there's no scientific reason to do it.

 

19 Q. Would you agree that would be an improper process

20 to wait that long?

 

21 A. The process should be to do it as soon as you

22 can. The realities of these situations in the criminal

23 justice system are you cannot get through the booking

24 quickly enough to do it as expediently as you would like,

25 at least as quick as I would like it to be done as a

 

504

 

1 scientist.

 

2 Q. If a person was in a hospital setting and gave

3 their consent to have blood withdrawn at 11:43, it would

4 be best to have the blood withdrawn at 11:43 or minutes

5 thereafter, would it not?

 

6 A. That would be ideal, yes.

 

7 Q. And you have no reason or no knowledge of why

8 that wasn't done in the case of Mr. Rokes, would that be a

9 fair statement?

 

10 A. I think we have pretty well established that I

11 was not with Mr. Rokes that night and I do not know what

12 happened that night and so I cannot explain that.

 

13 Q. And it should have happened as soon as possible?

 

14 A. The quicker the better.

 

15 Q. Now, your test, there is a margin of error there,

16 isn't there --

 

17 A. Yes, sir.

 

18 Q. -- in your test? And your test would indicate

19 that the margin of error is plus or minus, is it, 5

20 percent?

 

21 A. .004, or plus or minus 5 percent of the number,

22 whichever is smaller.

 

23 Q. And that basically indicates that these tests

24 cannot always be duplicated exactly?

 

25 A. Oh, we have an example of that here. A chemical

 

505

 

1 test is not perfectly reproducible. In this test there

2 were two samples prepared. Each one of those were

3 done twice. So there are four numerical results.

4 They're all very closely clustered together. So we

5 reported the lowest of the four.

 

6 Q. Okay, and in this situation is it not accurate to

7 say that you cannot say with certainty whether or not the

8 test, had it been taken earlier from Mr. Rokes, would have

9 been higher or lower, isn't that a fact?

 

10 A. I have a reasonable scientific opinion about --

11 oh, no, I was not there with Mr. Rokes that night. I did

12 not test him. Did not observe him. So I cannot say what

13 his case was.

 

14 Q. And you don't know what he ate; that would make

15 some difference, wouldn't it?

 

16 A. It might, yes.

 

17 Q. And you don't know what his drinking pattern was,

18 and that would make a difference, wouldn't it?

 

19 A. It might, yes.

 

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

 

21 THE COURT: Mr. Wadding, how long do you anticipate

22 going on redirect?

 

23 MR. WADDING: Probably, 20 minutes.

24 THE COURT: All right. Why don't we take ten minutes

25 at this time.

 

506

 Thereupon, at 11:15 a.m. a recess was taken at

 

2 11:28 a.m.)

 

3 THE COURT: You remain under oath, Mr. Rehberg. Mr.

4 Wadding.

 

5 MR. WADDING: Thank you.

 

6 REDIRECT EXAMINATION

 

7 BY MR. WADDING:

 

8 Q. I believe that Mr. Correll asked you about the

9 possibility of you inadvertently violating a traffic law,

10 and you said that you probably had done that, is that

11 correct?

 

12 A. He did and I have, yes.

 

13 Q. And when you include alcohol in the equation of a

14 person operating a motor vehicle does it become more

15 likely that they will violate some traffic law?

 

16 A. In my opinion, yes.

 

17 Q. Why is that?

 

18 A. Well, for two major reasons: first, the euphoric

19 aspects of the drug, becoming nonchalant and not caring

20 about the world around you and how you respond to it; and,

21 secondly, the change in your actual ability once again to

22 see, perceive and make reasonable judgments about how

23 you're going to proceed in that world.

 

24 Q. And you also indicated that you know somewhere in

25 the world or somewhere in the State of Iowa a dog is going

 

507

 

1 to run out, or a child could run out and be struck by an

2 operator of a motor vehicle that hasn't been drinking or

3 hasn't been impaired, is that correct?

 

4 A. That could very well happen, yes.

 

5 Q. And is it equally likely to happen that an

6 unimpaired driver would be able to swerve and miss that

7 dog or that child?

 

8 A. Equally as likely.

 

9 Q. Well, I mean, is there a -- is there a likelihood

10 of that scenario happening as well?

 

11 A. I would say it's more likely that the unimpaired

12 driver could avoid that situation than the impaired

13 driver.

 

14 Q. So we accept the fact that we make mistakes, is

15 that fair to say, even when we're not drinking?

 

16 A. We do -- I do. We do, yes.

 

17 Q. And is it fair to say that the alcohol just

18 increases that likelihood that we will make a mistake?

 

19 A. I would say that's a reasonable statement, yes.

 

20 Q. And what does -- can you describe what alcohol

21 affects? You know, what is it -- not just in terms of

22 vision and stuff like that, what is it attacking?

 

23 A. Well, the alcohol that is affecting us and

24 changing our physical and mental abilities is the alcohol

25 that is in our brain. It got there by getting into our

 

508

 

1 blood and being transported to the brain in the blood.

 

2 Q. And, I mean, is it fair to say that -- would you

3 characterize it as an obstacle in performing regular

4 functions?

 

5 MR. CORRELL: Excuse me, your Honor, I'm going to

6 object. It's leading. It's repetitive.

 

7 THE COURT: Sustained.

 

8 BY MR. WADDING:

 

9 Q. You indicated that on peripheral vision it's

10 always affected at .10, is that correct?

 

11 A. By then it's my opinion, yes.

 

12 Q. And does it get affected at levels lower than

13 that?

 

14 A. In some people it does, yes.

 

15 Q. And what levels does it -- would it be affected,

16 could it be affected?

 

17 A. Well, that depends on the individual. I'm sure

18 you can find somebody who's affected at .03, or four, or

19 five.

 

20 Q. And Mr. Correll asked you about retrograde

21 extrapolation, and you don't use that term, is that

22 correct?

 

23 A. Correct.

 

24 Q. And why is that?

 

25 A. Because retrograde extrapolation is a very

 

509

 

1 specific thing and that's not what we -- that's not what

2 we did in the hypothetical you asked me, but that's what

3 Curt talks about in his paper. Retrograde extrapolation

4 is when you take a real life chemical test, one that's

5 associated with me if I am a defendant, and that's all you

6 have. You don't know anything else. And you apply this

7 calculation to that test and say two hours ago I would

8 have been at a certain level, you know. So it's the real

9 life taking of one isolated scientific fact and drawing a

10 conclusion about one or two or three hours ago. You know,

11 that's not what I do and I would not do that, but I would

12 make reasonable scientific judgments about hypotheticals

13 when you have a collection of symptoms or happenings o

14 however you want to describe it.

 

15 Q. And you did that with the hypothetical that I

16 presented to you?

 

17 A. I did, yes, and with some from Mr. Correll, yeah.

 

18 Q. And you indicated that French-fries could remain

19 in the system a little longer, I mean, in the scenario --

20 if you remember the scenario that I gave you or the

21 hypothetical that I gave you, would you expect the

22 description of eating some oven-baked French-fries

23 sometime prior to 7:30 to affect the outcome or your

24 opinion on the rate of the elimination or absorption?

 

25 A. I would not expect in the hypothetical you asked

 

510

 

1 me that the French-fries you spoke about would affect the

2 absorption at that later time.

 

3 Q. Mr. Correll asked you about the possibility of

4 continued absorption three to six hours after a person

5 stops drinking, and you said that you might be able to

6 find that in the literature, is that fair? Is that what

7 you indicated?

 

8 A. I'm sure you could find that kind of statement in

9 the literature, in somebody's paper, yes.

 

10 Q. And would that be consistent with normal

11 drinking, drinking behavior, in your opinion?

 

12 A. No, that's not what happens.

 

13 Q. Okay. Can you think of a scenario in which

14 absorption would be continuing three to six hours later

15 after a person stops drinking?

 

16 A. I can't -- I cannot describe to you one that

17 would result from it taking that long for absorption to be

18 completely done. It would have to include consuming a

19 great amount of food and alcohol, you know, a very large

20 meal along with alcohol. I do not reasonably expect that

21 to happen by almost any scenario.

 

22 Q. You also indicated that there was not a

23 definition, a book definition, of social drinking. What

24 is your understanding of what social drinking is?

 

25 A. Well, the Canadians used the term perhaps 12, 15

 

511

 

1 years ago to describe what they did in heir human drinking

2 studies, the ones that I described to you that we've done

3 with my group. Social drinking is what I mentioned

4 earlier and that is when a human being who hasn't consumed

5 any alcohol yet today goes out, decides to consume

6 alcohol, and drinks one or two or three or four drinks an

7 hour for a period of time. It could be one hour to five

8 hours. And, once again, doesn't drink -- if they drink

9 five an hour they don't drink one every ten minutes. They

10 might drink two in five minutes or one ten minutes later,

11 or 15 minutes later, but they consume alcohol over a

12 period of time until they decide to stop. Then they don't

13 drink anymore and they go on about their business whether

14 that would be driving home or fixing their truck or

15 whatever they're going to do, but they don't drink

16 anymore.

 

17 Q. And would that be the definition that you

18 generally use in making the opinions that you have today,

19 or at least with regard to the scenario that I proposed to

20 you?

 

21 A. Yes, it would.

 

22 Q. And would the weight of the individual be

23 significant in your determination for the scenario or the

24 hypothetical that I posed to you?

 

25 A. Not so far.

 

512

 

1 Q. When would that become significant?

 

2 A. That could become significant if you desired to

3 estimate how many drinks it took in this hypothetical to

4 get to this test level over this period of time, and then

5 a larger person requires more alcohol than a small person.

 

6 Q. And I believe that you were asked about the per

7 se levels and that you indicated the .10 has been the per

8 se level for a period of eight to ten years, is that

9 correct?

 

10 A. Yes, sir.

 

11 Q. And prior to that we've had per se levels at .30

12 and .15, is that --

 

13 A. There was a time --

 

14 Q. Or did I did I say -- I'm sorry, did I say .30.

15 I meant .130.

 

16 A. Yes, sir, you did. In answer to those three

17 questions, there was a time I have been told when there

18 was a per se level of .15 in this State. I have been here

19 when the level was .13. That was prior to the -- you

20 know, that was in the early '80s.

 

21 Q. And would you say that in the early '80s when it

22 was .13 did you agree that should be the per se level at

23 that time?

 

24 A. No.

 

25 MR. CORRELL: I object. I think that is irrelevant as

 

513

 

1 to what he thinks the level should have been.

 

2 THE COURT: Sustained.

 

3 BY MR. WADDING:

 

4 Q. I think that -- well, where did the per se levels

5 come from?

 

6 A. Well, they're --

 

7 MR. CORRELL: Excuse me, I'm going to object to that.

8 I think that's irrelevant as well.

 

9 MR. WADDING: Well, your Honor, I think it's in direct

10 response to the questions Mr. Correll had on

11 cross-examination and I should be entitled to at least

12 question him somewhat about it.

 

13 THE COURT: I'm aware that they come from the

14 legislature.

 

15 MR. WADDING: It's not on the record, your Honor, and

16 that's what I am trying to make, my record on that.

17 THE COURT: All right. I'm not sure what relevance

18 that has, but go ahead and ask the question.

 

19 BY MR. WADDING:

 

20 Q. Where do the per se levels come from, Mr.

21 Rehberg?

 

22 A. It comes from the legislature. It's a

23 legislative decision.

 

24 Q. And would you be -- are you under the

 

25 understanding that some states recognize a per se level of

 512

1 .08?

 

2 MR. CORRELL: Excuse me, your Honor, I object to that.

 

3 That is irrelevant.

 

4 THE COURT: Sustained.

 

5 BY MR. WADDING:

 

6 Q. Would you become involved in legislation

7 requesting the per se level to be reduced to .08?

 

8 MR. CORRELL: Excuse me, I'm going to object to that.

9 I think that is equally irrelevant.

 

10 THE COURT: Sustained.

 

11 MR. WADDING: I believe Mr. Correll asked him if he

12 was involved in establishing per se levels at the

13 legislative level and Mr. Rehberg said, no. I think

14 that's simply in response to that type of questioning

15 posed by Mr. Correll.

 

16 THE COURT: The objection is sustained.

 

17 BY MR. WADDING:

 

18 Q. Do you have a belief or an opinion as to when a

19 person is impaired?

 

20 MR. CORRELL: Excuse me, I'm going to object to that.

 

21 It is repetitive and it is irrelevant to this -- it is

22 irrelevant to this particular case.

 

23 THE COURT: Overruled. The level of impairment is

24 relevant to this case. You may answer.

 

25 THE WITNESS: Yes.

 

515

 

1 BY MR. WADDING:

 

2 Q. And at what alcohol level do you believe an

3 individual would be impaired?

 

4 A. In my opinion people begin to be impaired at .05.

 

5 Q. And what level are you comfortable with as far as

6 the majority or all individuals being impaired by alcohol?

 

7 MR. CORRELL: I'm going to object. That's a dual

8 question.

 

9 THE COURT: Sustained.

 

10 BY MR. WADDING:

 

11 Q. Do you think that all individuals are impaired at

12 .08?

 

13 MR. CORRELL: Excuse me, I would object to that as a

14 leading question.

 

15 THE COURT: Overruled. You may answer.

 

16 THE WITNESS: Yes, I believe in my opinion all people

17 are sufficiently affected at .08 to be deemed to be under

18 the influence.

 

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

20 you.

 

21 THE COURT: Mr. Correll.

 

22 RECROSS-EXAMINATION

 

23 BY MR. CORRELL:

 

24 Q. Mr. Rehberg, let me get back to this retrograde

25 extrapolation. You are you in agreement that that is not

 

516

 

1 a generally recognized procedure, if that is what we call

2 it, retrograde extrapolation, is not a generally

3 recognized procedure?

 

4 A. No, in my opinion it is recognized for what it

5 is.

 

6 Q. Is it a generally recognized procedure in the

7 scientific community or not?

 

8 A. By "recognized" do you mean one that is used?

 

9 Q. No, is it approved? Is it approved by Curt

10 Dubowski?

 

11 A. I would say, no, of course, not. You read me the

12 paper that says he doesn't approve of it.

 

13 Q. And he is more well-known and if I could say more

14 highly regarded than you in the scientific community on

15 that issue, isn't that a fact, sir?

 

16 A. I would say there is no doubt that Curt is more

17 highly regarded than I am, yes, that's correct.

 

18 Q. And he has more education than you?

 

19 A. When you count the degrees the answer to that

20 question is, yes.

 

21 Q. And he has published more than you?

 

22 A. That's correct.

 

23 Q. And he has given more instruction than you?

 

24 A. Well, I don't know that, but I wouldn't be

25 surprised.

 

517

1 Q. And he is, in fact, a person who gave you some

2 certification or something, is that not correct?

 

3 A. He was on the American Board of Forensic

4 Toxicologists when I was certified. So he signed my

5 certification.

 

6 Q. Okay, and nationwide would it not be fair to say

7 that he is more recognized in this area amongst your peers

 

8 than you are for his expertise?

 

9 A. I would say you would find more toxicologists who

10 would recognize his name than mine, that's correct.

 

11 Q. He's done more research than you, has he not?

 

12 A. Yes, sir.

 

13 Q. And isn't that in fact why you don't like to call

14 this retrograde extrapolation because you know your mentor

15 disapproves of that?

 

16 A. I'm perfectly comfortable calling retrograde

17 extrapolation "retrograde extrapolation," but as I

18 described to you here today I did not do retrograde

19 extrapolation in this case and I did not do it in the

20 hypothetical that I was asked by the other gentleman.

 

21 Q. Mr. Wadding you're speaking of?

 

22 A. Yes, Mr. Wadding.

 

23 Q. The formula is the retrograde extrapolation

24 formula, is it not?

 

25 A. That is the formula you would use if you did

 

518

 

1 retrograde extrapolation, yes, that I wrote on this paper,

2 yes.

 

3 Q. And that is the formula that you used, is it not?

 

4 A. That's the formula I used for the calculation,

5 but I did not do retrograde extrapolation because I took

6 into account more factors. I did not take an isolated

7 chemical test and perform this calculation.

 

8 Q. Just so I understand, there is the retrograde

9 extrapolation formula which you used and recognized, but

10 in addition you used other information, is that correct?

 

11 A. In a hypothetical situation, to make a judgment,

12 yes.

 

13 Q. And you do not know as a fact that the

14 information that you were given is accurate, isn't that --

 

15 A. It was a hypothetical question.

 

16 Q. Okay, and you don't know that that hypothetical

17 question pertains at all to Mr. Rokes, isn't that a fact?

 

18 A. That's correct, but that cuts both ways --

 

19 Q. Okay. Now --

 

20 A. -- if the hypothetical is correct.

 

21 MR. CORRELL: Excuse me, I would ask that the witness

22 answer my question.

 

23 THE COURT: Wait for another question, please.

 

24 THE WITNESS: Yes, sir.

 

25 BY MR. CORRELL:

 

519

 

1 Q. For instance, you don't know his drinking pattern

2 between 9:00 and the time he had his last drink, do you?

 

3 A. I was not there that night. I did not observe

4 Mr. Rokes.

 

5 Q. So the answer is "no"?

 

6 A. Therefore, I cannot know that.

 

7 Q. The answer is, "no," isn't it?

 

8 A. I just said that, sir.

 

9 Q. And if we go through and if I break it up at each

10 increment, the answer would always be "no" because you

11 don't have that information, isn't that a fact?

 

12 A. I was not there, sir.

 

13 MR. WADDING: Your Honor, I'm going to object to the

14 line of questioning that it has been asked and answered.

 

15 THE COURT: I understand your point, Mr. Correll.

 

16 BY MR. CORRELL:

 

17 Q. You don't have that even by Mr. Wadding's

18 hypothetical, do you?

 

19 A. Well, I may have it by Mr. Wadding's

20 hypothetical. Mr. Wadding's hypothetical may fit what

21 happened that night, but I don't know that because I

22 wasn't there.

 

23 Q. His hypothetical is not complete, is it?

 

24 MR. WADDING: I'm going to object --

 

25 THE WITNESS: No hypothetical is ever complete.

 

520

 

1 MR. CORRELL: Okay.

 

2 THE WITNESS: You never have everything in a

3 hypothetical, because hypotheticals are hypothetical.

 

4 BY MR. CORRELL:

 

5 Q. And with regard to the amount of food, you

6 obviously don't know the amount of food, the amount of

7 French-fries that he had?

 

8 A. I assume it was an entire serving, a good portion

9 of French tries, but at that time it doesn't make any

10 difference in that hypothetical.

 

11 Q. The answer is you don't know the amount

12 obviously, correct?

 

13 A. I wasn't there.

 

14 MR. WADDING: Your Honor, I am going to object to the

15 line of questioning.

 

16 THE WITNESS: I don't know.

 

17 MR. WADDING: I'm going to object and ask that my

18 objection precede the answer, and I object to the line of

19 questioning as having been asked and answered.

 

20 THE COURT: Overruled. Let's try not to cover matters

21 that we've already established, however.

 

22 BY MR. CORRELL:

 

23 Q. Do you know if he put anything on those

24 French-fries?

 

25 A. Of course not.

 

521

 

1 Q. Do you think that could make a difference?

 

2 A. Well, I can make up a hypothetical where it would

3 make a difference, yes.

 

4 Q. And it would make a difference in the ultimate

5 test and in the ultimate conclusion, would it not?

 

6 A. Sir, I respectfully submit if you change the

7 hypothetical drastically it could change my opinion, and

8 there is an infinite number of ways you can change that

9 hypothetical.

 

10 Q. And it could change your opinion if you were

11 given an incomplete hypothetical, isn't that the fact,

12 sir?

 

13 A. I have -- I will never be given a complete

14 hypothetical.

 

15 Q. And you have no way of knowing how complete the

16 hypothetical was that Mr. Wadding gave to you, isn't that

17 a fact?

 

18 A. I think we've established that pretty well today

19 too, yes, sir.

 

20 Q. I'm correct?

 

21 A. "Yes, sir," means you are correct, sir.

 

22 MR. CORRELL: Thank you, that's all.

 

23 THE COURT: Mr. Wadding.

 

24 MR. WADDING: Nothing further, thank you.

 

25 THE COURT: Thank you.

 

updated 12/20/16