See also: Richard Jensen Criminal Trial
See also:
Richard Jensen Civil Trial Deposition
See also:
Richard Jensen PhD.
See also:
Toxicological Truths and Untruths

RICHARD JENSEN
CRIMINAL TRIAL DEPOSITION

This deposition was a telephone conversation taken May 9, 1997.

Page 3

1 RICHARD STEVE JENSEN,

2 being produced, sworn as hereinafter certified and

3 examined on behalf of the State of Iowa, testified

4 as follows:

5 DIRECT EXAMINATION

6 BY MR. WADDING:

7 Q. Mr. Jensen, my name is Kasey Wadding.

8 I'm with the Black Hawk County Attorney's Office.

9 And I'll be asking you a few questions here. Is

10 that all right?

11 A. That's just fine.

12 Q. Can you hear me all right?

13 A. I can hear you fine right now. Don't

14 let your voice drop.

15 Q. Okay. Could we start out by just giving

16 me an idea of your background educationwise?

17 A. I attended Grandview Junior College in

18 Des Moines, Iowa for two years and then attended

19 Iowa State University at Ames, Iowa for another

20 two years and graduated from Iowa State with

21 a bachelor of science with a major in chemistry in

22 1960. Then I attended graduate school at the

23 University of Iowa in Iowa City, got a masters

24 degree in analytical chemistry with thesis and

25 research in the same area in 1964. And in 1965 I

 

Page 4

1 obtained my PhD in analytical chemistry with thesis

2 and research in the same area. I have two teaching

3 postdoctoral appointments since that time: one at

4 North Dakota State University in Fargo and one at

5 the University of Nebraska, Lincoln. That would

6 complete my formal educational background. I've

7 been trained in a variety of other techniques as

8 related to crime lab, but it has not been under the

9 guise of an academic program.

10 Q. Okay. And what were the last two things

11 that you spoke of? The teaching?

12 A. Teaching postdoctoral appointments at

13 North Dakota State University in Fargo and the

14 University of Nebraska, Lincoln.

15 Q. You taught there, is that what --

16 A. I'm sorry. I can't hear you.

17 Q. You taught there? Is that what you're

18 saying?

19 A. Yes, I taught and did research.

20 Q. Okay. And what were the two

21 universities?

22 A. North Dakota State University and the

23 University of Nebraska.

24 Q. And when did you teach at the

25 universities?

 

Page 5

1 A. I don't remember the dates because they

2 were just one-year appointments. What happened in

3 terms of my work is that I received my PhD, I

4 went to a teaching appointment at Mankato State

5 University in Mankato, Minnesota, and I taught

6 undergraduate and graduate chemistry courses there,

7 my specialty area, conducted graduate and

8 undergraduate research. But that was only for one

9 year.

10 Then I went to Gustavus Adolphus College

11 in St. Peter, Minnesota, where I taught for 13 and

12 a half years. I taught undergraduate chemistry

13 courses again in my area of expertise and

14 specialty: analytical chemistry, instrumental

15 analysis, criminalistics, forensic science,

16 political chemistry, and a variety of other science

17 courses related to a liberal arts undergraduate

18 program. While I was there I had leaves of absence

19 from the institution in which taught at Lincoln,

20 Nebraska, at the University of Nebraska and the

21 University of North Dakota. I'm sorry. North

22 Dakota State University at Fargo. I do not

23 remember the times of those. The dates, I'm sorry.

24 Q. Thank you. I guess while we are at it,

25 why don't you just give me a quick rundown of your

 

Page 6

1 work history.

2 A. Well, while I was at Gustavus I applied

3 for leave of absences to the crime laboratory for the

4 State of Minnesota, and I participated on a six

5 months' leave of absence conducting research in the

6 areas of alcohol breath testing and serology and

7 also observed and participated in most of the

8 sections of the laboratory, the crime laboratory

9 for the State of Minnesota.

10 After six months I was appointed the

11 temporary supervisor of the alcohol testing

12 section, and I continued my leave of absence.

13 There at the alcohol section I trained analysts,

14 developed methods of analysis, conducted analyses

15 of alcohol, analyses of blood samples and other

16 bodily fluids and tissues, and after that six month

17 period of time, applied for and was given the

18 position of assistant director of the crime

19 laboratory for the State of Minnesota. I was

20 coordinator of the chemical testing program for the

21 State of Minnesota, which deals with the day-to-day

22 operation of the alcohol and drug testing program

23 in support of all the law enforcement agencies in

24 the State of Minnesota.

25 Q. Do you remember what year that was?

 

Page 7

1 A. I began in nineteen -- September of 1979

2 I went on leave, so it would be in August of 1980 I

3 applied for and became assistant director of the

4 crime lab.

5 Q. And how long were you there then?

6 A. Until April of 1984, I left and went

7 into private practice in Boulder, Colorado.

8 Q. What did you do there?

9 A. There I analyzed the blood and breath

10 specimens for the Colorado Highway Patrol and other

11 law enforcement agencies, but I was there for only

12 four months, when I returned then to Minneapolis

13 and started my own organization, Forensic

14 Associates, was appointed director of forensic

15 toxicology for Metropolitan Medical Center. In the

16 past five years -- I think it was about five years ago

17 that toxicology section was purchased by Medtox

18 Laboratories, where I continued as director of

19 forensic toxicology, but now, because I only want to

20 specialize in the alcohol area, I'm director of

21 alcohol toxicology there. But my main work is with

22 my own organization, Forensic Associates. There I

23 consult and testify in civil and criminal cases

24 throughout the country.

25 Q. Okay. Is that what you're primarily

 

Page 8

1 concerned with now in consulting and testifying?

2 A. That's absolutely correct. That's about

3 98 percent of my work that involves working with

4 cases. Of course there's a certain amount of

5 management work, as you can well understand, that

6 goes in running any business, but in terms of the

7 type of work that I do. Right now that's about --

8 well, I said 98. I think that's high. Probably

9 about 90 to 95 percent of the time I consult and

10 testify.

11 Q. Okay. Could you describe just a typical

12 day for you with Forensic Associates?

13 A. A typical day for me is pretty darn

14 untypical, but it may involve travel to anywhere in

15 the United States, consulting with an attorney that

16 day, testifying the next day and returning back to

17 my office. Or the typical day could very well be

18 reviewing case files all day and consulting with

19 attorneys on the phone. About -- of the cases that

20 I deal with personally, I would have to say that 90

21 to 85 percent of them are civil cases. The others

22 are criminal cases.

23 Q. Now, do you do any actual testing of

24 specimens?e

25 A. We test -- we have an ongoing research

 

Page 9

1 program that we do with evidential breath testing,

2 but I no longer test any physiological fluids for

3 alcohol content.

4 Q. Okay. Do you not have that capability

5 at Forensic Associates?

6 A. No, we do not have that capability.

7 Q. So you're never asked to actually test a

8 specimen.

9 A. No. Not at all. We don't -- we have

10 been asked to test specimens and we do it through

11 Medtox Laboratory, but we do very few of those. It

12 isn't worth the effort on our part.

13 Q. And Medtox is big -- they bought

14 Forensic Associates; right?

15 A. No, Medtox is a different organization

16 totally, and I simply have an appointment with them

17 in terms of their alcohol testing program for those

18 cases that my go to trial. And I'm simply in

19 charge of the procedures that are performed and

20 offer testimony as to the methods of analysis and

21 interpretation of the test results.

22 Q. Okay. Well, let me ask you this: Are

23 you familiar with the State of Iowa's crime lab?

24 A. I'm familiar with the State of Iowa

25 crime lab to some degree, yes.

 

Page 10

1 Q. And how are you familiar with the State

2 of Iowa crime lab?

3 A. I've been there.

4 Q. And why have been there?

5 A. I was there and helped interview some

6 people for promotion at one time when I was with

7 the Minnesota crime lab. They wanted an outside

8 source, somebody to help them make a decision on

9 promotion.

10 Q. And do you recall what type of promotion

11 that was?

12 A. I haven't the slightest idea.

13 Q. You don't recall who that was?

14 A. No.

15 Q. Okay. Do you recall who that was in

16 reference to?

17 A. No, I don't.

18 Q. Okay. do you know any of the chemists

19 or toxicologists that work with the Iowa DCI lab?

20 A. No, I know names of people what work

21 there. In terms of do I know them, I don't know in

22 what context you mean.

23 Q. Do you know Cal Rayburn?

24 A. I know the name. I believe that I've

25 met him, and I may have met him on more than one

 

Page 11

1 occasion. But if I have, it's been quite some time

2 ago.

3 Q. Okay. Do you know Mike Rehberg?

4 A. Yes, indeed.

5 Q. And how do you know Mike Rehberg?

6 A. I met him. He was the one that asked me

7 down to assist in interviewing people.

8 Q. Okay. And do you know Bob Monserrate?

9 A. I know the name, yes. I've talked to

10 him on the phone.

11 Q. Okay. And are you familiar with the

12 issues involved in this instance, that State of

13 Iowa versus Tracy Rokes?

14 A. I believe I do.

15 Q. Okay. And what do you understand those

16 issues to be?

17 A. I understand that the issue is whether

18 or not his blood alcohol concentration was over .10

19 at the time of the accident or whether he was

20 impaired in the operation of his motor vehicle.

21 Q. Okay. And what kind of information do

22 you have with reference to that?

23 A. What I have been provided is the

24 deposition, the first deposition of Calvin Rayburn,

25 deposition of Julie Glade, of -- one moment. I'm

 

Page 12

1 just going through my file. The supplemental

2 telephone deposition of Calvin Rayburn, and I have

3 a copy of the accident report, the Iowa Department

4 of Transportation.

5 Q. Anything else?

6 A. Nope. I don't have anything else.

7 Q. And when were you first contacted with

8 reference to this case?

9 A. I don't remember when I got the initial

10 phone call because I often don't make notes on

11 initial phone calls, but I do know that I received

12 materials and a letter on April 30 form

13 Mr. Correll. I received a letter from him with the

14 initial deposition of Calvin Rayburn and I believe

15 it was Julie Glade at abut that time, which would

16 be April 30.

17 Q. So are you telling me that that would

18 have been the first contact that you received from

19 Mr. Correll?

20 A. What I told you was that I probably had

21 a phone conversation, a contact with him prior to

22 that, of which I do not keep notes, and asked him

23 if he wanted me to review something, would he

24 please provide that to me. And my first letter,

25 written contact from him, I received in my office

 

Page 13

1 on April 30.

2 Q. And you would have no record of any

3 contact prior to that.

4 A. That's correct. I normally don't do

5 that. I get calls very often on cases of which I

6 hear nothing else.

7 Q. And you have no recollection of when you

8 may have -- he may have contacted you prior to the

9 April 30.

10 A. No.

11 Q. Pardon me?

12 A. No, I do not.

13 Q. And do you bill for any kind of initial

14 consultation?

15 A. No, I have a retainer. I require a

16 retainer that I bill against.

17 Q. When do you require a retainer to be

18 sent?

19 A. At the time that they want to initiate

20 services.

21 Q. And would that be at the time of

22 April 30, 1997, in this instance?

23 A. Yes, it was indeed in this instance.

24 Q. Okay. And how much is your retainer?

25 A. $1,000.

 

Page 14

 

1 Q. And that would represent what?

2 A. That represents retention of my

3 services.

4 Q. And when you say you bill against that,

5 how would you bill against that?

6 A. I bill against that by the hour.

7 Q. Okay. And how much do bill an hour?

8 A. $275 an hour.

9 Q. And is that constant?

10 A. I don't know what you mean by constant.

11 Q. Does it change if you were to testify or

12 is it always $275 an hour?

13 A. Always 275 an hour.

14 Q. Okay. And you have a per diem rate

15 as well or is it just still $275 an hour?

16 A. It's still 275 an hour. Very often

17 times, however, I will offer a reduced daily rate

18 of $1,800 a day.

19 Q. And was the information that you

20 received on April 30, 1997, sufficient for you to

21 form an opinion about the tests that were done on

22 this case?

23 A. They helped. They helped to form an

24 opinion, and because of the review that I did, I

25 asked for additional information.

Page 15

1 Q. And did you -- were you then able to

2 form an opinion?

3 A. Based upon the initial information that

4 I've obtained I've been able to form opinions, yes.

5 Q. Okay. Can you tell me what kind of

6 opinion you formed?

7 A. You're asking me about the tests,

8 though; is that correct?

9 Q. Yes.

10 A. In terms of the tests conducted by

11 Calvin Rayburn, I have very little to go on in that

12 it's the only procedure that I know of in the

13 forensic area that is not a written -- in which

14 there is no written procedure established. I

15 haven't the slightest idea of what he did. I don't

16 know what his criteria for acceptance of his

17 standards are. I have some very serious doubts as

18 to the accuracy of the test, but I have nothing to

19 base that on because there's just reports that he

20 made his own standard, he uses it for two years, it

21 runs out, he uses another one and compares it with

22 the old one. There's no independent analysis of

23 the standard to prove that it is what it's supposed

24 to be, there's no written protocol, and I

25 haven't -- I do not even remember the answers to

 

Page 16

1 the questions of the gas chromatograms. That is,

2 the documents produced by the instrument that he

3 used. Which would certainly tell us what the

4 values for the standards were and the unknowns.

5 Now, he did report the values for the unknowns, and

6 I have those as a result of his deposition.

7 Q. What do you mean by that?

8 A. Well, he reported the numbers that he

9 obtained on the blood samples said to have been

10 taken from Tracy Rokes.

11 Q. Okay.

12 A. He said that he measures the standard,

13 does duplicate sample analysis, and then measures

14 the standard again.

15 Q. So --

16 A. But he reported four results, and I

17 would expect to see two results, so I don't know

18 why that was done four times instead of twice

19 unless there was particular problem with the

20 analysis. But again, I have to speak out of

21 ignorance because there's no written procedure.

22 Q. And you would expect that.

23 A. I don't know of any other forensic

24 laboratory that conducts analysis for the purpose

25 of being introduced as evidence that does not have

 

Page 17

1 a written procedure.

2 Q. And could you describe what you mean by

3 written procedure.

4 A. A procedure that is employed in the

5 analysis of every sample setting down the criteria

6 of the analysis, the method by which the sample is

7 handled, the method by which the standards are

8 measured and the results are interpreted, what

9 range of concentration is allowed with the

10 standards, what range of comparison between

11 duplicate tests are allowed on the unknown. It's a

12 fundamental principle of any analytical procedure

13 to insure the fact that every analysis was

14 conducted the same way, so that everybody is

15 treated the same.

16 Q. And I take it that -- well, did you have

17 an opinion as to the procedures that he described

18 in his deposition?

19 A. There's not enough detail to have any

20 opinion.

21 Q. Not enough detail to have an opinion

22 about what?

23 A. Whether it's accurate or reliable.

24 Q. And I assume that you're speaking of the

25 test result.

 

Page 18

1 A. That's correct.

2 Q. Okay. so you didn't have enough

3 information from the depositions --

4 A. That's correct.

5 Q. -- of Mr. Rayburn that that test was

6 accurate or reliable.

7 A. Correct.

8 Q. And when you describe being asked by

9 Mike Rehberg to come to Des Moines to assist in

10 some promotions, is that the only contact you

11 recall having with the Iowa DCI lab?

12 A. I don't remember. I don't remember for

13 sure. I could tell you that I offered testimony of

14 a breath alcohol issue in Cedar Rapids and I may

15 have seen them there. I don't know when that was.

16 This is a long time ago.

17 Q. Okay. And is that in reference to the

18 Intoxilyzer 4011A?

19 A. Probably.

20 Q. Okay. And do you have an opinion as to

21 the value of the 4011A?

22 A. It depends on how it's used. It should

23 have more safeguards in it. It's old equipment.

24 Q. Would you agree that the technology is

25 pretty much the same in all the breath testing?

 

Page 19

1 devices that use a -- well, what do they call it?

2 Infrared spectrography?

3 A. The fundamental technology is the same.

4 There are certainly a lot of variations on the

5 theme of doing that, yes. 4011A only uses a single

6 wavelength.

7 Q. Are you aware of any relationship

8 between the Minnesota crime lab and the Iowa crime

9 lab?

10 A. In what way?

11 Q. Well, I mean do they -- do they assist

12 one another at all?

13 A. I think Minnesota uses Iowa as a referee

14 lab in its blood alcohol program.

15 Q. And did they do that when you were with

16 the Minnesota crime lab?

17 A. I believe that's correct.

18 Q. Are you aware whether they do that still

19 today?

20 A. No, I'm not aware whether they do that

21 today.

22 Q. And what other opinions did you form of

23 the information that you received?

24 A. As related to the test?

25 Q. Sure.

 

Page 20

1 A. Well, we've covered the DCI test.

2 Q. All right.

3 A. And I agree with Cal Rayburn and his

4 criticism of the hospital test.

5 Q. Okay. And that being?

6 A. Standards are not measured at the proper

7 time. The test is only conducted once. It's

8 tested on serum and not whole blood.

9 Q. Anything else?

10 A. Let me check my notes. No, I don't have

11 anything else. I was only curious -- of course

12 this has nothing to do with the test, but I was

13 curious about her testimony that there were two

14 tubes of blood said to have been taken from Tracy

15 Rokes and she analyzed one of them which had to

16 deal with the serum and then she put it back in the kit

17 and it went to the DCI lab. So I would assume

18 whatever kit you have got has got two tubes of blood in

19 it, one whole blood and one serum. I thought that

20 was curious, because often times the hospital

21 doesn't return the tube of blood.

22 Q. Have you been asked to see that?

23 A. Pardon me?

24 Q. Have you been asked to see that?

25 A. I can't understand the first part of

 

Page 21

1 your question.

2 Q. Have you been asked to see those tubes

3 of blood?

4 A. Have I been asked to see them? No.

5 Q. So you don't know whether they are --

6 one is serum and one is whole blood or if they are

7 both whole blood.

8 A. That's correct, I don't.

9 Q. Were you aware that they are available

10 to the defendant and the defense attorney in this

11 instance?

12 A. No, I have not inquired on that at all.

13 Q. Were you given that information?

14 A. No, I was not.

15 Q. Were you in agreement with Mr. Rayburn's

16 deposition testimony about the blood sample and it

17 basically remaining stable throughout a storage

18 period?

19 A. I guess I don't remember that testimony.

20 Q. Well, what is you opinion about that

21 then?

22 A. Well, I do remember some --

23 concentrations can change. It depends upon how it

24 is stored. There's no question about that. But he

25 essentially felt that it remained stable, and I

 

Page 22

1 agree with him if there's the proper amount of

2 anticoagulant preservative in there, yes.

3 Q. Okay. And how long would that remain

4 stable?

5 A. It depends upon whether it's

6 refrigerated or frozen or room temperature.

7 Q. If it's refrigerated.

8 A. I have no idea as to a specific time,

9 but it should be stable for -- I certainly would

10 feel comfortable with three to six months.

11 Q. And frozen?

12 A. Frozen you can certainly keep it longer

13 than that. You should be able to preserve it

14 longer than that. The difficulty comes not so much

15 in the storage as it does in every time it's

16 analyzed and you take the stopper off the top,

17 you're going to lose some alcohol from the head

18 space. And so if we assume that everything is

19 properly preserved, and there's no other problems

20 with the analysis -- I'm sorry, the integrity of

21 the sample, then you're probably going to lose some

22 alcohol from the sample every time you pull the

23 cork off. You try to minimize that, and you also

24 minimize it by the way you store it. As you

25 indicated, freezing is better than just cooling and

 

Page 23

1 cooling is better than room temperature.

2 Q. How much would you expect to lose?

3 A. Well, I wouldn't have the slightest idea

4 by virtue of the fact it depends upon the amount of

5 alcohol that's in the sample and the size of the

6 head space above the liquid.

7 Q. And what other opinions have you formed

8 in reference to this instance?

9 A. The other opinion, exclusive of any

10 testing of a sample said to have been taken from

11 Mr. Rokes, the fact that the test value obtained

12 may not have any relationship to what his blood

13 alcohol concentration may have been at the time of

14 the accident.

15 Q. Okay. And why is that?

16 A. If there was alcohol consumed within a

17 short time period to the time of the accident, I'm

18 talking about prior to the accident, then his blood

19 alcohol concentration would be rising during

20 that -- at the time of the accident and it would be

21 higher later.

22 Q. Okay.

23 A. And so that one looks for in terms of

24 whether or not one would be intoxicated at the time

25 of the accident, be under the influence and capable

 

Page 24

1 of operating a motor vehicle, you would look for

2 other signs and symptoms that may bear that out,

3 and I don't find any in this particular case.

4 Q. Okay. And when you say you don't find

5 any in this particular case, what information are

6 you gleaning that from?

7 A. Well, there's nothing -- I've seen

8 nothing that -- of the material that I've told you

9 that I've reviewed, I've seen nothing that

10 indicates that he was under the influence of

11 alcohol at the time of this accident.

12 Q. Okay. And the material that you've

13 reviewed had been the depositions of Cal Rayburn --

14 A. Both of the depositions of Cal Rayburn,

15 as I stated before, the deposition of Julie Glade,

16 and the accident report.

17 Q. Okay. And the accident report being

18 a -- I'm just wondering if we are talking about the

19 same thing.

20 A. I haven't the slightest idea. I have

21 the accident report in front of me.

22 Q. You have it in front of you?

23 A. I have it in front of me.

24 Q. Okay. Can you describe to we what it

25 looks like?

 

Page 25

1 A. Says Iowa Department of Transportation

2 on the top. There's double-sided pages, there's

3 two double-sided pages. And it says Iowa

4 Department of Transportation, it says Investigating

5 Officer's Report of Motor Vehicle Accident. It

6 gives dates, times, names of people involved --

7 Q. Okay.

8 A. -- roadway characteristics, accident

9 environment, circumstances, scale drawing on the

10 back side.

11 Q. And the it give you a brief little

12 narrative as well?

13 A. That's correct.

14 Q. And the narrative starts out,

15 "Vehicle 1 was westbound"?

16 A. "Was westbound".

17 Q. "On Greenhill Road'"?

18 A. Correct.

19 Q. "Vehicle 2 was southbound on

20 Highway 58"?

21 A. Correct.

22 Q. Okay. And how many pages do you have?

23 A. I have two pages. There are copies --

24 they are double sided.

25 Q. Okay.

 

Page 26

1 A. The second page involves Vehicle

2 Number 3.

3 Q. And that would have been the Jennifer

4 Norum Girsch?

5 A. Correct.

6 Q. Okay.

7 A. And then there's a small narrative?

8 A. That's correct. Beginning, "Vehicle

9 Number 3 was headed."

10 Q. "Eastbound on Greenhill Road."

11 A. That's correct.

12 Q. Okay. Anything else?

13 A. That's it.

14 Q. And what would you expect to see on the

15 accident report that would be indicative of other

16 signs of intoxication?

17 A. Other signs, you would see observations

18 of indicia of intoxication. I don't see any here,

19 but I haven't seen any other information.

20 Q. Okay. Where would you expect to see

21 that on the accident report?

22 A. In the narrative.

23 Q. Okay. Any other place you would expect

24 to see that?

25 A. You may see it noted under

 

Page 27

1 circumstances, but I don't know what your codes

2 mean.

3 Q. And I guess that begs the questions: Are

4 you familiar with the Iowa accident reports?

5 A. Only in terms of what I've reviewed

6 here.

7 Q. Is this the first time you've seen an

8 Iowa Department of Transportation accident report?

9 A. Oh, I doubt if that's true. I've

10 probably done a number of civil cases in Iowa.

11 Q. Okay. And did you have any information

12 or was there any information that you believe was

13 indicative of Mr. Rokes's rising alcohol rate at

14 the time of the accident?

15 A. No, I don't have any information about

16 that. All I did was talk about the circumstance in

17 which that may occur if that circumstance is

18 present.

19 Q. Okay. So you didn't -- you don't have

20 any information about Mr. Rokes's weight, height,

21 if he ate anything or anything like that.

22 A. That's correct, I don't.

23 Q. And you weren't asked to from any kind

24 of opinion about raising alcohol rates or -- or

25 Mr. Rokes specifically.

 

Page 28

1 A. That's correct, I have not. I haven't

2 been getting enough information to offer an opinion

3 on that. It's just one of the things we have to be

4 concerned with in any alcohol case.

5 Q. And is that something that you've been

6 told would be forthcoming?

7 A. I have not even been told that.

8 Q. Those calculations are not all that

9 complicated to make, are they?

10 A. I don't know what calculations you're

11 referring to.

12 Q. I guess I should put it this way. For

13 someone of your experience with alcohol blood

14 levels, I mean you can make estimates pretty

15 quickly on given information; isn't that correct?

16 A. If we know what an individual drank over

17 what time period, the type of drinker they were and

18 of course the weight of the individual, yes. Those

19 estimates could be make, with certain assumptions,

20 as you well understand.

21 Q. Right. And assumptions such as

22 absorption, rate of elimination, things of that

23 nature; right?

24 A. Absolutely correct.

25 Q. And I mean do you basically use -- when

 

Page 29

1 we talk about rate of absorption, what kind of

2 information would you use to decide how fast

3 alcohol is entering the bloodstream?

4 A. It's almost an impossible task to do

5 that, but one of the things that -- some of the

6 things, I'm sorry, that you would need to know, you

7 need to know when the beverages were consumed in

8 relation to the time of the incident, you'd have to

9 know obviously when the last one was consumed in

10 relation to the time of the incident, you'll have

11 to know whether or not that was consumed with any

12 food, whether there were any medical considerations

13 that may cause the stomach content to be retained

14 in the stomach longer than normal. Those are the

15 types of information that would be useful in

16 determining at any specific time if somebody is

17 still absorbing alcohol into their bloodstream.

18 Q. And you said it would be impossible to

19 determine --

20 A. A rate.

21 Q. A rate. Okay. And what do you mean by

22 that?

23 A. I mean it's so variable, the rate at

24 which alcohol is absorbed. We can have a -- from

25 the time you finish your last beverage until the

 

Page 30

1 time of maximum alcohol concentration, studies have

2 shown that that's somewhere around an hour on an

3 empty stomach. But it can vary. It can be less

4 than that and it can be more that that. There are

5 so many things that affect the human system as it

6 relates to the rate of absorption of alcohol.

7 Q. So you can't give an opinion as to a

8 person's rate of absorption?

9 A. I certainly -- for any given

10 circumstance? Absolutely not.

11 Q. When can you then?

12 A. Pardon me?

13 Q. When can you then?

14 A. When can I?

15 Q. Yes.

16 A. You can only -- as I just stated, you

17 can only make an -- form an opinion depending upon

18 a certain circumstance when you know when the

19 alcohol was finished consuming, under what

20 circumstances and the time relationship to the

21 incident that you're trying to make an estimate

22 for.

23 Q. And when do you consider a person to be

24 intoxicated? At what blood alcohol level?

25 A. I certainly think that there could be --

 

Page 31

1 this doesn't go for everybody. You could have an

2 effect as low as .06.

3 Q. And you don't believe that everybody

4 would have an effect at that level.

5 A. No, I don't believe that they would, no.

6 Q. Okay. And do you base that on any

7 particular research of your own or --

8 A. I just have to say that it was the

9 general knowledge of the scientific literature,

10 what I've seen in human subject studies that I've

11 done.

12 Q. And can you indicate any kind of

13 particular percentage of those persons that would

14 be affected at .06?

15 A. No, I don't have that at all, because if

16 you're going to talk about a specific function, for

17 instance in the operation of a motor vehicle, then

18 it depends upon one's experience in operating a

19 motor vehicle. So you can't apply these things

20 across the board to everything.

21 Q. Okay.

22 A. That's virtually an impossible task.

23 Q. So you would agree that you couldn't do

24 that at .06.

25 A. At .06 some people can be affected by

 

Page 32

1 alcohol, which would be a detrimental effect, and

2 that effect would be really only on their

3 judgment. Judgment is based upon experience and

4 experience in the particular function somebody

5 has. So that's why not everybody is affected, nor

6 is everybody affected to the same degree. As soon

7 as we make a blank statement that at some specific

8 low concentration, .06, everybody is affected in

9 the operation of a motor vehicle, is

10 irresponsible.

11 Q. Is there a point where you believe that

12 everybody is affected?

13 A. When you talk about everybody is

14 affected, you're talking about to any degree; is

15 that correct?

16 Q. Sure, I'll take that.

17 A. I believe that people can be affected --

18 and again when you talk about everybody -- by far

19 the majority of people I believe could be affected

20 in the range of a .08 to .10.

21 Q. Okay. So you wouldn't believe that

22 everybody is affected at .08 to .10?

23 A. I hesitate to use the term everybody

24 because I've not read about everybody, I've not

25 tested everybody, and I don't know how everybody

 

Page 33

1 reacts.

2 Q. And would that be also supported by, you

3 know, medical research and your research?

4 A. We certainly see detriment when we

5 measure people at that level. There's no question

6 about that. We see detrimental effects on

7 individuals. And I think most researchers see

8 detrimental effects at that level.

9 Q. You just don't agree that the -- you

10 just don't agree that they're measuring those

11 detrimental effects correctly or what?

12 A. No, what I say is the physiological

13 systems are so complicated, there are so many

14 variables affecting it, that I don't think you can

15 say absolutely for everybody.

16 Q. Okay. So you couldn't say absolutely

17 for everybody at .08 to .10.

18 A. That's correct, you can't. But I'll say

19 that it's my belief that the majority of the people

20 would be affected detrimentally at that level.

21 Q. Okay. What about from .10 to .15?

22 A. The chances are even greater that they

23 are detrimentally affected.

24 Q. But you couldn't say that everybody

25 was.

 

Page 34

1 A. I would hesitate to use the term

2 everybody.

3 Q. Okay. And --

4 A. For the same reason at whatever

5 concentration you ask me about.

6 Q. All the way up to 3, 400.

7 A. Well, it's at .3 you become comatose, at

8 that area, but I would imagine that's proof that

9 you're affected.

10 Q. But you still hesitate --

11 A. I can tell you this. Not everybody is

12 comatose at .30, nor are they comatose at .40.

13 Q. You still -- I'm not asking you that.

14 But you would say that there would still be some

15 people that would not be affected?

16 A. I gave you that as an example to say

17 that there are differences between people.

18 Q. I understand what you're using it for.

19 What I'm asking you is something different.

20 though. I'm asking you if at .30 you still believe

21 that there would be people that are not affected by

22 alcohol.

23 A. Oh, I think people will be affected at

24 .30

25 Q. Everybody?

 

Page 35

1 A. It's my opinion that essentially

2 everybody is affected in dome detrimental way by

3 alcohol at .03.

4 Q. You indicated that you -- you made some

5 reference to human test studies that you've done;

6 is that correct?

7 A. That's correct.

8 Q. And when did you do those?

9 A. We do them on a continual basis.

10 Q. Okay. When was the last time you did

11 them?

12 A. I would say about six months ago.

13 Q. Okay.

14 A. No. As a matter of fact, it was about a

15 month ago.

16 Q. Okay. And do you record your results?

17 A. We often times will record the alcohol

18 concentrations. We don't always do the same

19 observations of individuals at that -- at the time.

20 Q. And what's the purpose of your doing

21 your human test studies?

22 A. One of the things that we do is when we

23 train individuals in use of the evidential breath test

24 devices, we require that they measure a drinking

25 session. And so that's one of the reasons why we

 

Page 36

1 do that. The other thing that we do is we use the

2 data often times that we collect from those

3 drinking sessions to, for instance, test the

4 validity of making predictions of blood alcohol

5 concentrations.

6 Q. Anything else?

7 A. Did you ask me a question?

8 Q. I just asked you: Anything else?

9 A. No.

10 Q. And do your human test studies, have you

11 published your findings on those at all?

12 A. I don't believe that we have, no. Nor

13 did we do it when I was with the State of

14 Minnesota.

15 Q. And you said that -- I'm sorry. I may

16 have gotten this wrong. You said that you've done

17 it within the last six months?

18 A. Yes.

19 Q. Okay. But you don't know what that was

20 in particular reference to?

21 A. Well, particular reference to I said

22 within the last month, as a matter of fact.

23 Q. Okay.

24 A. That was a training session on the

25 Intoxilyzer 5000 that we did in Atlanta, Georgia.

 

Page 37

1 Q. Okay.

2 A. The particular effort at that time when

3 we trained individuals on the Intoxilyzer 500 --

4 we had 22 students in the class. The purpose was

5 there to do multiple measurements of their alcohol

6 concentration to see whether or not retrograde

7 extrapolation was feasible.

8 Q. Okay. Meaning what?

9 A. Pardon me?

10 Q. Meaning what? Retrograde

11 extrapolation. Are you talking about being able to

12 determine what their blood alcohol rate would be an

13 hour earlier?

14 A. No, an hour later.

15 Q. Okay.

16 A. An hour earlier. I'm sorry. Or two

17 hours earlier. Based solely on the measurements of

18 the concentration at a specific time.

19 Q. Okay. And what were your findings

20 there?

21 A. Can't do it.

22 Q. Okay. And why is that?

23 A. There are probably very many reasons for

24 it. The biggest problem is that issue that we

25 talked about earlier and that's absorption. If

 

Page 38

1 people are still absorbing, we will clearly

2 overestimate somebody's blood alcohol

3 concentration.

4 Q. So you can't do it at all.

5 A. With only that information, that's

6 correct.

7 Q. Okay. Then what information do you need

8 to be able to do it?

9 A. Everything that we talked about before.

10 Q. And that being?

11 A. That would be the type of beverage, the

12 amount of beverage consumed, the food consumed, the

13 medical condition, and when the last alcohol

14 consumption was.

15 Q. So you can do it.

16 A. You can certainly make a better

17 estimate, that's correct. It is still and estimate.

18 Q. And do we deal in absolutes when we talk

19 about alcohol testing?

20 A. We deal in absolutes when the

21 legislature draws a straight line that says this is

22 legal and this is illegal, yes. We are put in that

23 position as scientists to have to do that.

24 Q. Okay. I'm asking you from a scientific

25 standpoint, is there an absolute in alcohol

 

Page 39

1 testing?

2 A. In alcohol testing there's an absolute.

3 Yes, there is. You can certainly test -- you can

4 certainly analyze a sample that would be accurate

5 and reliable, yes.

6 Q. So given -- I'm asking you to -- I'm

7 asking you to accept what I'm going to be saying

8 here in a minute.

9 A. Okay.

10 Q. If you have a problem with that, fine.

11 A. Not a problem.

12 Q. What I want you to do is I want you to

13 accept -- and I'm not saying that you have to at a

14 later date. Just for now. I want you to accept

15 the methodology use by Cal Rayburn in the analysis

16 of the blood sample her. Okay? And I know that

17 you might disagree with that.

18 A. That's all right. Go ahead.

19 Q. And what I want to ask you, aside from

20 those procedures that were used, when he -- I

22 believe in his deposition testimony he indicated

22 that he had four results, one was .091, .089, .089,

23 and .087, did that surprise you?

24 A. Well, I don't have any basis on whether

25 to be surprised or not.

 

Page 40

1 Q. Okay. Assume that you would agree

2 that all procedures were done correctly --

3 A. Whatever they were; right?

4 Q. Right.

5 A. Okay.

6 Q. Would it surprise you to have results

7 like that?

8 A. No, that doesn't surprise me. No, no.

9 Q. Okay. And why not?

10 A. Well, because you could have that kind

11 of variation from analysis to analysis on duplicate

12 analysis. What I don't understand is why he has

13 four results when he said he used duplicate

14 analysis. Duplicate means two.

15 Q. And I'm not trying to be tricky or

16 anything. I'm not really talking about his

17 procedures here. But I'm talking about the fact

18 that we got at least three different results, that

19 would not surprise you, assuming that the

20 procedures were done correctly.

21 A. Oh, no. No. No, not at all. That

22 doesn't surprise me.

23 Q. So when we talk about absolutes, we are

24 talking about -- that even has to be qualified; is

25 that fair to say?

 

Page 41

1 A. It has to be qualified in that we know

2 that there's systematic and random errors that

3 occur in every measurement. That the range of

4 acceptance of repetitive measurements should be

5 made clear in any procedure based upon what your

6 practice is.

7 Q. Okay.

8 A. But that does not surprise me. That's

9 as absolute as we can be.

10 Q. Okay. So you agree that that -- you

11 might come up with results like that.

12 A. I would hope so. If I followed the same

13 procedure, if I knew what it was, if I followed the

14 and came up with those variations,

15 that would not surprise me or shock me.

16 Q. Okay. As a matter of fact, I mean is it

17 fair to say that you would expect it?

18 A. I would expect there to be small

19 variations on multiple analyses. Yes, indeed.

20 Q. Okay. And which one would you think

21 would be the most correct then?

22 A. I would assume the the average of the

23 values tested -- depending upon how he generated

24 those values. I don't know what his method was.

25 So let me at least qualify that.

 

Page 42

1 Q. Sure.

2 A. But if you have four analyses in which

3 you have conducted four preparations of the sample

4 and carried them all the way through from the

5 beginning to the end of your procedure, and you

6 have got four analyses that agree closely, the

7 average should be what is used.

8 Q. Okay. So you don't agree with their

9 procedure of just reporting the lowest result.

10 A. No, you asked me what's best.

11 Q. I understand.

12 A. I didn't say whether I approved or it or

13 not.

14 Q. Okay. Do you approve of it or not?

15 A. It's commonplace in alcohol testing to

16 report the lowest result truncated to two figures.

17 I don't know why they do it, but you ought to

18 report the average. And if you're accurate to

19 three significant figures, and you can prove that

20 you're accurate to three significant figures, which

21 he reported on all four of those, then use it.

22 Q. Then use the average; is that what

23 you're saying?

24 A. Use the average to three significant

25 figurers. If you're uncertain of what you're doing

 

Page 43

1 and if you're uncertain of how you did it, then you

2 report the lowest and cut off the last figure

3 because you feel better.

4 Q. Okay. And in your experience with the

5 Minnesota lab, did they have a margin of error that

6 was also reported? Or also used?

7 A. There is a --there is an absolute

8 written procedure.

9 Q. And what's that?

10 A. For the analysis, which includes the

11 acceptable error.

12 Q. Okay. And what is that?

13 A. 3 percent.

14 Q. And --

15 A. Plus or minus .003.

16 Q. Okay.

17 A. If I remember correctly. I haven't seen

18 one for a while. Please understand that.

19 Q. And what was that based on?

20 A. That was based on the error that they

21 allowed in the tolerances between their standards

22 and what -- what they knew them to be and what they

23 were measured to be.

24 Q. And who is "they"?

25 A. The analysts that did the analysis.

 

Page 44

1 Q. Well, I guess I'm -- I guess I'm not

2 clear about that. Who establishes the margin of

3 error?

4 A. Well, the procedure is established --

5 establishes the margin of error which is

6 acceptable. How that was arrived at, I don't

7 know. But it's clearly printed in the procedure.

8 Q. Okay. Did you form any other opinions

9 in reference to this case?

10 A. I don't believe so, no.

11 Q. So the only opinions you have formed

12 were the opinions regarding the Sartori Hospital

13 blood analysis, the blood analysis done by the DCI

14 in Des Moines, and some speculation as to whether

15 or not a person would be intoxicated at the levels

16 reported by DCI.

17 A. No, your last one was not true. I did

18 not say that.

19 Q. Okay.

20 A. What I said was that they may not be

21 able to predict whether Mr. Rokes was impaired at

22 the time of the operation of the motor vehicle

23 because of the circumstances which we discusses.

24 It had nothing do do with the value reported by the

25 DCI laboratory.

 

Page 45

1 Q. Okay. Let me -- one other question.

2 Did you see anything in that accident report that

3 indicated that the defendant might be impaired?

4 A. No, I didn't.

5 Q. Did you see anything in that accident

6 report that made reference to the defendant --

7 A. There is -- there's a statement in the

8 narrative that says Driver Number 1 was suspected

9 of OWI.

10 Q. And that didn't mean anything to you.

11 A. I don't know what they base their

12 suspicion on. Usually it's an articulatable

13 suspicion. I don't know what that is.

14 Q. So you aren't saying he wasn't

15 impaired. You're just saying that you didn't have

16 enough information?

17 A. That's correct. I don't know.

18 MR. WADDING: I don't have any other

19 questions. Thank you.

20 MR. CORRELL: Thank you. Good-bye.

21 WITNESS: Thank you all.

updated 12/22/16