See also: Richard Jensen
See also: Richard Jensen Civil Trial Deposition
See also: Richard Jensen PhD.
See also: Toxicological Truths and Untruths
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
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
19 A. Yes, I taught and did research.
20 Q. Okay. And what were the two
22 A. North Dakota State University and the
23 University of Nebraska.
24 Q. And when did you teach at the
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
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
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?
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
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
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
25 A. We test -- we have an ongoing research
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
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.
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
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
1 occasion. But if I have, it's been quite some time
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
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
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
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
19 A. At the time that they want to initiate
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.
1 Q. And that would represent what?
2 A. That represents retention of my
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.
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
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
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
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.
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?
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
7 Q. Are you aware of any relationship
8 between the Minnesota crime lab and the Iowa crime
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
20 A. No, I'm not aware whether they do that
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.
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
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
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
19 A. I guess I don't remember that testimony.
20 Q. Well, what is you opinion about that
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
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
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
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
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?
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.
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
1 circumstances, but I don't know what your codes
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
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
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.
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
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
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
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
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 --
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
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
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
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
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
1 A. I would hesitate to use the term
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
23 A. Oh, I think people will be affected at
25 Q. Everybody?
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
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
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
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
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.
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
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
1 people are still absorbing, we will clearly
2 overestimate somebody's blood alcohol
4 Q. So you can't do it at all.
5 A. With only that information, that's
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
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.
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?
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.
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
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
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.
1 Q. Well, I guess I'm -- I guess I'm not
2 clear about that. Who establishes the margin of
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.
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.