(See also: Linear
Defendant's Exhibit 2)
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
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.
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.
9 A. I work for the State. My official job title is
10 Crime Laboratory Administrator, and I am a forensic
12 Q. And could you describe your training and
13 education in achieving -- well, first becoming a forensic
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
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 --
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.
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
22 A. That's the obstacle; that's the goal of the test,
24 Q. And in that type of testing where do you see
25 effects of alcohol, at what levels do you see alcohol
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
24 A. Yes, it does.
25 Q. And at what levels is peripheral vision affected?
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
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
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
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
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?
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
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.
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
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,
25 Q. And is there anything that can affect its
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
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
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
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
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?
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
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
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
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
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.
1 THE COURT: Overruled. You may answer.
2 THE WITNESS: I would say that would be reasonable,
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
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
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
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,
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
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
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,
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,
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:
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
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
19 THE COURT: Mr. Correll.
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?
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
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
1 enforcement, you have been there for 20 plus years
2 involved basically as a law enforcement officer, is that
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
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,
24 A. Well, I'm sure I have, yes.
25 Q. And during the course of your career when you
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
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.
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.
1 Q. And is there a formula for retrograde
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
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
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
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
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
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,
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,
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?
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,
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
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.
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
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?
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,
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.
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
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.
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?
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.
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
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
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.
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,
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
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
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 --
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
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?
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
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?
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
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
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
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.
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.
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
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
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
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
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
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
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
20 Q. And Mr. Correll asked you about retrograde
21 extrapolation, and you don't use that term, is that
23 A. Correct.
24 Q. And why is that?
25 A. Because retrograde extrapolation is a very
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
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
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
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
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.
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
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
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
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.
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
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.
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
9 THE COURT: Sustained.
10 BY MR. WADDING:
11 Q. Do you think that all individuals are impaired at
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
21 THE COURT: Mr. Correll.
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
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
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
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
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
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
1 retrograde extrapolation, yes, that I wrote on this paper,
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,
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:
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.
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
25 A. Of course not.
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
10 Q. And it could change your opinion if you were
11 given an incomplete hypothetical, isn't that the fact,
13 A. I have -- I will never be given a complete
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.