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

Richard E. Jensen, PhD.
CIVIL TRIAL DEPOSITION

Deposition February 26, 1999, Forensic Associates, Inc. 4690 IDS Center, 80 South Eight Street, Minneapolis, Minnesota.



Deposition of Richard E. Jensen Ph.D.

February 26, 1999

Page 4

1 RICHARD E. JENSEN, Ph.D.,

2 being produced, sown as heinafter certified and

3 examined on behalf of the Plaintiffs, Farrell,

4 Kleinheksel and Hill, testified as follows:

5 DIRECT EXAMINATION

6 BY MR. LIABO:

7 Q. Would you tell us your name and

8 professional address, please?

9 A. Richard E. Jensen, 4690 IDS Center,

10 Minneapolis.

11 Q. What is your profession?

12 A. I'm an analytical chemist and forensic

13 toxicologist.

14 Q. What's a forensic toxicologist?

15 A. A toxicologist is one that deals with

16 poisons, toxic materials in human systems. A

17 forensic toxicologist deals with those toxic issues

18 that have do do with court. My specialty is

19 alcohol and drugs, more alcohol than drugs, as

20 toxic materials.

21 Q. And in the forensic context, in other

22 words, where there's either litigation or a

23 criminal prosecution?

24 A. Or anticipation of, that's correct.

25 Absolutely. Also, I deal in the--a forensic

 

Page 5

1 toxicologist would also deal in the areas of

2 training individuals to make measurements and

3 interpretation of those test results. For

4 instance, corporate entities or businesses.

5 Q. Where corporations or businesses may

6 want to screen their employees?

7 A. Exactly right. Or are forced to by, for

8 instance, the Omnibus DOT Bill; the transportation

9 industry has to test people, the nuclear power

10 plant program, they have to test.

11 Q. All right. And so your role is to work

12 with those businesses to establish accurate methods

13 of testing?

14 A. That's correct.

15 Q. And interpreting the test results?

16 A. Mostly the training of individuals to

17 conduct accurate, reliable tests.

18 Q. All right. Have you worked in the past

19 with law enforcement agencies?

20 A. Oh, yes.

21 Q. With what--on what basis?

22 A. I was Assistant Director of the crime

23 lab for the state of Minnesota and served all the

24 law enforcement agencies in the state of Minnesota,

25 and also in a brief stay in Colorado we had a

Page 6

1 contract with the Colorado Highway Patrol and about

2 120 other law enforcement agencies to do testing

3 and interpretation of the test results.

4 Q. A regular part of your work would

5 involve testifying; correct?

6 A. That's a regular part, but it's not the

7 majority of my work, of course. The majority of my

8 work is reading, reviewing.

9 Q. But in terms of the work that you do and

10 the analysis that you do, you would regularly be

11 called upon to give depositions or testify in

12 trial; correct?

13 A. That's absolutely correct. That's

14 oftentimes an end result of those efforts.

15 Q. Could you begin to even count the times

16 you've testified?

17 A. No. No.

18 Q. How frequently do you testify?

19 A. I couldn't be begin to tell you that

20 either. It depends on the month or the week or

21 the year.

22 Q. This is Friday. How many times this

23 week have you testified?

24 A. I haven't.

25 Q. You haven't. Is this an unusual week.

 

 

Page 7

1 for you?

2 A. No, they're occurring more and more, and

3 I'm trying by design to have that occur. But I

4 would say probably now, if we're talking about now,

5 I probably testify about three times a month. And

6 that's a guess and that's certainly not an average.

7 Q. Do you have a nationwide practice?

8 A. Yes.

9 Q. So you could be in any state of the

10 union at any time?

11 A. Coast to coast.

12 Q. All right.

13 A. My last testimony was a hearing in

14 Clearwater, Florida.

15 Q. Are you called upon to consult in a

16 criminal case more with defense lawyers or do you

17 still consult with prosecutors fro time to time?

18 A. We occasionally consult with

19 prosecutors, but that's very rare. They have their

20 own experts. it's the defense.

21 Q. All right. In civil case, do you get

22 involved in the dram shop case in civil cases?

23 A. All of the time. Dram shop cases all the

24 time.

25 Q. Or motor vehicle accidents or collisions

Page 8

1 where there's alcohol involved?

2 A. Personal injury, questionable death,

3 wrongful death, PI, worker's comp.

4 Q. Do you find yourself consulting with

5 defense lawyers more or plaintiffs' lawyers?

6 A. About 50/50.

7 Q. All right. I understand that you also

8 regularly speak at seminars involving lawyers?

9 A. I have more often than I do now, that's

10 correct.

11 Q. And one of the groups that you speak to

12 would be lawyers who defend drunk driving cases?

13 A. Yes, that's absolutely correct?

14 Q. Do you have any sort of association or

15 affiliation with any drunk driving defense

16 organization?

17 A. Absolutely not.

18 Q. How would it be that you would be called

19 upon to speak at those seminars?

20 A. They'd ask me. They'd call me and ask if I

21 could participate, and they'd name a general topic

22 and I would tell them whether or not I could

23 accomplish that for them.

24 Q. You've published articles that are used

25 by drunk driving defense lawyers; correct?

 

Page 9

1 A. I have no idea how they use them. I

2 wouldn't have the slightest idea.

3 Q. Some of the seminar topics that you've

4 addressed involve defense of drunk driving; in

5 other words, it's promoted as being for the defense

6 of drunk driving?

7 A. No. Well, I have no idea what they

8 promote it as. What I promote it as is the proper

9 way to conduct chemical tests and that's always

10 been that way. It's been the same all along.

11 Whatever the title of the seminar is does not

12 dictate what my presentation is.

13 Q. All right.

14 A. But you're right, absolutely the

15 majority by far in terms of the criminal aspect are

16 the defense associations.

17 Q. You wouldn't be surprised to see your

18 name associated with a seminar topic that is

19 promoted as being the successful defense of drunk

20 driving cases?

21 A. Absolutely not. I never make the choice

22 of what they call their seminars.

23 Q. Okay. Do you know how Dave Correll

24 got ahold of you?

25 A. I haven't the slightest idea. I really

 

Page 10

1 don't.

2 Q. All right. Okay.

3 A. I've given both seminars for criminal

4 attorneys in Iowa and for civil attorneys in Iowa.

5 I really don't know.

6 Q. How would you describe your primary area

7 of focus? You said that you instruct businesses on

8 establishing proper chemical analysis techniques.

9 Is that kind of your thing?

10 A. Well my thing from my analytical

11 background is that the first thing we look at, from

12 my perspective what I would look at more than

13 anything else is the methods of analysis and the

14 accuracy and the reliability of the test values

15 and we're talking really about alcohol here only,

16 and then the interpretation of those test results.

17 And those are the very small areas that I would

18 look at.

19 Q. And when you say the accuracy of the

20 test results and the methodology, are you concerned

21 primarily with Intoxilyzer mechanical testing?

22 A. No. I'm concerned with blood testing,

23 I'm concerned with serum testing by a hospital, I'm

24 concerned with breath alcohol testing. Whatever

25 generates the number in a breath or blood alcohol

 

Page 11

1 concentration, we look very closely at the claimed

2 accuracy and reliability of that number.

3 Q. And then you would formulate opinions as

4 to whether or not the demonstrated blood alcohol

5 level shown by the test would accurately reflect

6 the true blood alcohol level of the individual?

7 A. That's correct, based upon the method of

8 analysis. Then, or course, we would take it one

9 step further and that is--and I say "we" because

10 both my associates and I do this, but focusing on

11 me, I would look then at the parameters of the

12 behavior of the individual based upon the measured

13 valued and the interpret the test value in terms of

14 the apparent or lack of intoxication of the

15 individual. So I would have to weigh all of the

16 things, but I would start with the test, yes.

17 Q. Okay. And so you start with the test

18 you look at the process, you look at the end value.

19 and they you would also look at information.

20 available with respect to the behavior of the

21 individual?

22 A. Absolutely.

23 Q. All right. And put that all together in

24 terms of a conclusion?

25 A. That's correct.

 

Page 12

1 Q. Okay.

2 A. Certainly in terms of interpretation

3 of that test value.

4 Q. So you would sort of check as one of the

5 verifiers of the test value, you would look at the

6 behavior of the individual to see if that's

7 consistent?

8 A. Consistent, that's the key, knowing, of

9 course, that everybody reacts differently to

10 alcohol, but absolutely we look for those signs.

11 Q. Okay.

12 A. You bet.

13 Q. What information have you reviewed in

14 this case?

15 A. I've reviewed a lot. More than I ever

16 want to.

17 Q. Okay. Is this information--is the

18 material you have today basically your entire file

19 on this case?

20 A. This is my entire file, everything

21 that's been provided me or that has been generated

22 et cetera.

23. Q. Did you get a copy of the deposition

24 notice in which I requested that you bring with you

25 certain items?

 

Page 13

1 A. That's correct.

2 Q. Did you bring with you everything that's

3 requested?

4 A. Everything that I have.

5 Q. Okay.

6 A. I don't even recall what you requested,

7 but I normally do it for all depositions.

8 Q. Okay. Can you give me an inventory of

9 what you've got there?

10 A. Do you want to know the specific

11 documents that I've reviewed or do you want to know

12 page by page, piece by piece, what's in the file?

13 Q. Is there a difference between what

14 you've got in this pile and what you've reviewed?

15 A. No.

16 Q. Okay. Just give me a short not page by

17 page, but just a summary of what you've got here.

18 A. Well, what I have in this file are

19 documents that I have been provided or notes that I

20 have generated as a result of my review. And also

21 documents requested by you in terms of this

22 deposition. So I would have expert reports,

23 curriculum vitae, my notes, I would have copies of

24 my criminal testimony, I would have

25 communications---some communications between you

 

Page 14

1 and Mr. Bevel, I would have more announcements of

2 the depositions, the change in the deposition,

3 communications, that sort of thing would be here.

4 The bulk of the file, however, are

5 documents that I have been provided which I have

6 reviewed, which, of course, would be the

7 depositions and testimony of the individuals

8 involved in this matter.

9 Q. Okay.

10 A. And if you'd like me to be specific on

11 those, I'll be very happy to do that.

12 Q. Yeah. Why don't you tell me

13 specifically. And you can just describe them,

14 identify them.

15 A. I'm going to go through some of the

16 simple communications which really don't mean

17 anything, which is notice of deposition and that.

18 Of course, the traffic accident report involving

19 this matter. The hospital report of the blood

20 alcohol. The DCI Criminalistics Laboratory report

21 of the blood alcohol.

22 The police reports and I, or course

23 don't know whether I have all of the police

24 reports, it depends upon how many that were

25 generated, but I have a variety of investigation

 

Page 15

1 reports as it related to this accident. I've been

2 given some copies of newspaper articles that I

3 haven't even read.

4 I have the trial testimony of Tracy

5 Rokes, I have the trial testimony of Michael

6 Rehberg, the trial testimony of Thomas Bennett, the

7 trial testimony of Calvin Rayburn. I have my

8 discovery deposition in the criminal matter. I

9 have Calvin Rayburn's discovery deposition in the

10 criminal matter. I have Volume 4. Of course, I

11 don't know if that's complete, it appears to be

12 complete, of the trail testimony, pages 546 to 768,

13 which would be the testimony of Calvin Rayburn and

14 Thomas Bennett is what's indicated in the witness

15 form. Volume I of the trial testimony, pages 1

16 through 240. Those are Witnesses Abels, Brasfield,

17 Brasfield, Gersh, Michael, Anderson, Whitlatch,

18 Glade, and Venenga. I have the trial testimony of

19 Geoffrey Miller, but I don't believe it notes who

20 else is there.

21 I have the deposition taken in this

22 matter of DeWayne Brasfield. And apparently

23 there's a statement attached to that. The

24 deposition of Renee Whitlatch in the criminal

25 matter. The deposition of Julie Glade in the

 

Page 16

1 criminal matter, the deposition of Calvin Rayburn

2 in the criminal matter, the deposition of Jennifer

3 Steil, S-T-E-I-L, in the criminal matter. The

4 deposition of Emily Brasfield in the civil matter,

5 with an attached voluntary statement.

6 Volume 5, pages 769 to 973 of the

7 trial. And I have the Volume 3 of the trial

8 testimony, which would be Geoffrey Miller. That

9 appears to be a repeat of what we had earlier. I

10 have a lot of duplicates, by the way.

11 Q. Sure.

12 A. They must have a surplus of trees in

13 Iowa. Volume II of the trial testimony--

14 Q. We get ours from Minnesota.

15 A. Do you really? No wonder we have

16 problems. Volume II of the trail testimony, pages

17 241 to 449.

18 My file also contains what is left of

19 the criminal file when I was retained in that

20 matter.

21 Q. Okay

22 A. And that would be communications,

23 billings and my notes of materials reviewed there.

24 Q. Okay. You said you had--first of all,

25 what is on top here?

 

Page 17

1 Those are the things you asked me to

2 provide.

3 Q. Okay. This is a list of the testimony

4 that you've given?

5 A. That's correct.

6 And that's my resume.

7 Q. You have some reports. Do you have

8 Dr. Bederka's report?

9 A. Yes, I do.

10 Q. You have some notes here?

11 A. Yes

12 Q. Do mind if I take a look at it?

13 A. No. Take it away.

14 (Deposition Exhibits 60 through 63

15 marked for identification as requested.)

16 Q. Is Exhibit 60 a copy of your CV?

17 A. Yes.

18 Q. And Exhibit 61 is the list of cases

19 you've testified in?

20 A. Yes.

21 Q. And Exhibit 62--

22 A. Well, that's really for the last four

23 years, three or four years, whatever the Federal

24 Rules are, that's to comply. So if it's three,

25 it's three; if it's four, it's four.

 

Page 18

1 Q. Okay. Do you keep an ongoing, I know

2 some experts do this, they just keep an ongoing

3 list in order to comply with the Federal Rules.

4 A. That's exactly right. We keep adding to

5 the top end and we don't take anything off at the

6 bottom end.

7 Q. Exhibit 62, that;s the subfile of notes

8 and correspondence in the criminal case?

9 A. It's the remainder of my file. There

10 was a much larger file, of course, but what we do

11 is we take out deposition testimony and those sorts

12 things when we close a file. So this is the

13 remainder of the file, that's correct.

14 Q. I would like to have that whole thing

15 copied, and it's been marked as a group exhibit on

16 the outside of the manila folder.

17 A. We can accomplish that at some point in

18 time.

19 Q. That would be fine. I notice in there

20 there's a document that contains sort of an outline

21 of your testimony?

22 A. That document was one that was prepared

23 by Mr. Correll.

24 Q. So Mr. Correll prepared an outline of

25 questions and answers that would be presented at

 

Page 19

1 the criminal trial, is that correct?

2 A. Apparently that's correct. I don't even

3 remember this file.

4 Q. And does it turn out that your criminal

5 testimony followed that prepared outline?

6 A. I guess you'd have to read my criminal

7 testimony. I didn't refer to this. I've made a

8 change in this. I don't recall whether he followed

9 this or not. My guess is it's probably close to

10 this. And my guess also is that he would have

11 developed this series of questions, more questions

12 than answers here, as a result of our

13 conversations.

14 Q. Sure. But I mean it's got an outline of

15 areas and then under "Conclusions" it's got, for

16 instance, "In your opinion, could Mr. Rokes' blood

17 alcohol have been below--" well, the way you wrote

18 it originally, "In you opinion, could Mr. Rokes'

19 blood alcohol been as low as .040?" You make a

20 revision to state "below 0.087," is that correct?

21 A. That's absolutely correct.

22 Q. And "could have been as low as 0.05"?

23 A. Yes

24 Q. His corrected question would be, "In

25 your opinion, could Mr. Rokes' blood alcohol level

 

Page 20

1 been below 0.087, could have been as low as 0.05"/

2 A. Correct.

3 Q. Now his scripted answer was, "Yes,

4 absolutely."

5 A. Well, I doubt if I said that. He can

6 script anything he wants, but that's not his

7 record. It's my record.

8 Q. And so you wrote in hand writing "Yes"?

9 A. I wrote in hand writing "Yes".

10 Q. All right.

11 A. I didn't write "Absolutely."

12 Q. Exhibit 63 is your manila folder

13 containing your subfile in this case; correct?

14 A. Essentially yes. There's a number of

15 documents that are in there and there's no rhyme of

16 reason why which documents are in there or why.

17 They could just as well be in this stack of

18 materials. But some fit in folders, some fit

19 outside of folders.

20 Q. But the notes we have in those two

21 folders are all the handwritten notes you have

22 made?

23 A. Absolutely. I said "absolutely" on that

24 one.

25 Q. Mr. Correll must be familiar with your

 

Page 21

1 figure of speech or you manner of expressing

2 yourself.

3 A. That may be.

4 Q. I notice the word "absolutely" appears

5 from time to time in your testimony.

6 A. That's right. I don't want there to be

7 any mistake in my testimony.

8 Q. Your charges for your testimony is what

9 $275?

10 A. My time at the present time is billed in

11 Forensic Associates at $300 an hour.

12 Q. Okay. So it's gone up?

13 A. Oh, yes.

14 Q. Well, it was 275 and it's gone up to

15 $300?

16 A. That's correct.

17 Q. All right.

18 A. As long as you're on it, who gets billed

19 for this?

20 Q. I do.

21 A. Okay.

22 Q. And then you have--have you written

23 any reports or any written opinions in connection

24 with the civil case?

25 A. No, I have not.

 

Page 22

1 Q. And have you written any reports or

2 written opinions in connection with the criminal

3 case?

4 A. No, I have not.

5 Q. All right. The material that you have

6 reviewed included reports of blood alcohol testing

7 of Mr. Rokes, is that correct?

8 A. That's correct.

9 Q. Did that include a blood test, blood

10 plasma--a test of blood plasma that was done at

11 Sartori Hospital?

12 A. Correct.

13 Q. And then also a blood alcohol test that

14 was analyzed by the State of Iowa Criminal Lab?

15 A. That's correct, the DCI Laboratory.

16 Q. All right. And with respect to the

17 plasma test that was done, what is your

18 understanding of when and how that blood sample

19 seemed to be drawn?

20 A. I don't remember the details of how it

21 came to be drawn, except it was drawn, as I

22 understand it, as one of two tubes of blood drawn

23 with a kit to obtain samples generally used in

24 criminal cases.

25 Q. All right. Is there anything about your

 

Page 23

1 knowledge of the circumstances under which that

2 blood sample was drawn that would cause you to

3 question the reliability of the test results?

4 A. No, I don't have enough information. I

5 don't even know what it was. I have no idea

6 whether they were gray stopper tubes. I have no

7 ideas if the hospital is capable of analyzing a

8 sample that has preservative and anticoagulant.

9 Hospital almost always let it clot and analyze the

10 serum and plasma, which I use synonymously, by the

11 way. Forensic kits should have both a preservative

12 and anticoagulant. I don't know that there is any

13 problem in terms of the sample itself.

14 Q. In terms of its analysis and how the

15 sample was analyzed and the results obtained, is

16 there anything about your knowledge of the analysis

17 process that would cause you to question the

18 reliability of the results?

19 A. Good term. The two things that we look

20 for--the answer is yes. I can't question it, but

21 I can tell you that it's not done to establish the

22 reliability. in the analysis, one looks at

23 accuracy and reliability. Accuracy is determined

24 in any quality control procedure by measuring a

25 standard at the same time you measure the unknown.

 

Page 24

1 And you measure a standard in a range in which you

2 expect to find the unknown. That apparently was

3 not done in the hospital test at Sartori Hospital.

4 At the same time, your term

5 "reliability" is one that we use in chemical

6 testing all the time and reliability is established

7 by repetitive measurement, that is at least

8 duplicate testing. So anybody that has any

9 knowledge of quality control procedures knows that

10 that is the minimum requirement, measuring the

11 standard at the time you measure the unknown and

12 also measuring at least twice to ensure yourself of

13 the fact that there was not an aberrant reading on

14 a single measurement. There was a single

15 measurement in this case, if I recall the testimony

16 properly.

17 Q. Do you recall the result that was found

18 as a result of that?

19 A. 120 milligrams per deciliter, m-g,

20 slash, d-l.

21 Q. And that was the serum value, plasma

22 value; correct?

23 A. Correct. And I would use those terms

24 synonymously.

25 Q. how does that convert into whole blood?

 

Page 25

1 A. If the blood chemistries are normal of

2 the individual, I use an average conversion that is

3 15 percent higher.

4 Q. So that would make a whole blood level

5 of .105--or .11--yeah, .105.

6 A. .102

7 Q. It its 15 percent higher?

8 A. If it's 15 percent I multiply 120 by .85

9 and you get .102.

10 Q. All right. do you know hen that sample

11 was drawn?

12 A. I believe the documents that I have read

13 indicated that it was 28 minutes after midnight.

14 Now let me check that, because I review so many

15 cases. 12:28 a.m. on October 5th, 1996 was the

16 note that I have. I guess your question was do I

17 know that. Yes.

18 Q. All right. Have you considered the

19 results of that test in formulating any opinions in

20 this case?

21 A. I have.

22 Q. Is that test result a factor that you

23 have considered and relied upon in formulating

24 opinions in this case?

25 A. One of the factors, yes. I'm sorry, one

 

Page 26

1 of the things the I rely upon, yes.

2 Q. There was another test. Was that of

3 whole blood?

4 A. Yes, as I understand it, yes.

5 Q. Do you know when the blood sample was

6 withdrawn in connection with that test?

7 A. Yes.

8 Q. And when was that?

9 A. At the same time and date.

10 Q. Okay. And what were the results of that

11 test?

12 A. .087 grams per hundred milliliters of

13 blood.

14 Q. If a person--a person who has .102

15 grams per milliliter of blood level alcohol--

16 A. Milligrams per deciliter or .102 grams

17 per hundred milliliters.

18 Q. All right. That person would by

19 practically every definition be considered under

20 the influence of alcohol, would that person not?

21 A. Yes, that's true.

22 Q. At .087 by almost every definition of

23 being under the influence, that person would be

24 under the influence?

25 A. Yes. Not to the same degree, but would

 

Page 27

1 they be affected? You're absolutely right.

2 Q. In fact, the Department of

3 Transportation Safety has established .08 as the

4 presumptive level of intoxication?

5 A. That's the recommendation. The

6 National Highway Traffic Safety Administration has

7 that recommendation. That's absolutely correct.

8 Your state and mine simply hasn't chosen to adopt

9 it.

10 Q. And recognized experts in the field

11 ascribe to that standard as well; correct?

12 A. Yes.

13 Q. Dr. Dubowski subscribes to that

14 standard, does he not?

15 A. Oh, yes.

16 Q. And you subscribe to Dr. Dubowski?

17 A. Yes, I do.

18 Q. Are you of the opinion, I just want to

19 know what your opinions are in this case, are you

20 going to testify that Mr. Rokes was not under the

21 influence of alcohol at the time of his collision?

22 A. I'm going to testify that based on the

23 chemical test there's no way to know.

24 Q. But your testimony is not that he was

25 not under the influence of alcohol?

 

Page 28

1 A. That's correct. I have some serious

2 doubts about it, but can I say unequivocally? The

3 answer is no, I cannot.

4 Q. I mean, it's possible that he was

5 intoxicated at the time of the collision?

6 A. It's possible. The problem we have is

7 that we're going to use all sorts of terms for

8 being intoxicated. Under the influence. There are

9 more synonyms for intoxicated and under the

10 influence than any other areas we know. He

11 could have been under the influence of alcohol.

12 Whether or not that impaired his driving, I don't

13 know.

14 Q. Okay.

15 A. Because we have to look at task

16 orientation. Did he have enough alcohol in his

17 system to affect his ability to safely operate the

18 motor vehicle.

19 Q. And that kind of goes to the--you're

20 point to the issue here. Is it a numbers game

21 or is it a matter of assessing this individual and

22 looking at his behavior and his conduct?

23 A. Well, it becomes a numbers game if you

24 rely upon the numbers. If you want to take the

25 numbers out and look at the behavior, then if you

 

Page 29

1 can eliminate all of the other issues that may

2 cause behavioral changes and apply it to alcohol,

3 then it becomes evaluate the behavior.

4 Q. Let me ask you this: Do you have an

5 opinion as to what Mr. Rokes' likely blood alcohol

6 level was at the time of the collision?

7 A. No, I don't.

8 Q. Do you have an opinion as to the likely

9 range that his blood alcohol level was?

10 A. Only as I testified to in the criminal

11 matter, and that is I believe it to be below .087,

12 it could be as low as .05. And my opinion in that

13 has not changed.

14 Q. All right.

15 A. My opinion is exactly the same as my

16 testimony in the criminal case.

17 Q. So it's some where between .05 and .08?

18 A. I'd say that's the most probable area if

19 we believe these tests.

20 Q. All right. And you're aware of studies

21 that even at .05 there's a high chance of somebody

22 being under the influence?

23 A. In terms of operating a motor vehicle,

24 there's one author that has written that. That is

25 not common knowledge, nor is it generally accepted.

 

Page 30

1 that I know of. But .05 can cause a problem,

2 absolutely, and that would be in the area of

3 judgment, I agree, in the operation of a motor

4 vehicle.

5 Q. I'm looking at the Dubowski article that

6 you refer to in your trial testimony.

7 A. Which one? Is that the 1976 or '85?

8 Q. Well, I don't know. I think it's the

9 '76. Blood-alcohol analysis: Uses, methods, and

10 some forensic problems - review and opinion.

11 A. Yes.

12 Q. Is that one of the articles that you

13 referred to in your trial testimony?

14 A. I'm sure it was.

15 Q. It's got a chart on page 11. Do you see

16 that chart?

17 A. I do.

18 Q. All right. And it shows--that chart

19 shows the changes over time for the statutory

20 presumptive level of intoxication; correct?

21 A. No, no. This shows the percent of

22 subjects impaired versus the blood alcohol

23 concentration.

24 Q. Well, but there's dates on that chart;

25 correct?

 

Page 31

1 A. Absolutely. And those dates are

2 overlaid on the chart as to presumptive values.

3 Q. Right. And over time, over the years,

4 the presumptive value has gone down? In other

5 words, in 1938 the presumptive value was lower

6 than --

7 A. It was higher.

8 Q. --or higher, I mean than in 1971;

9 correct?

10 A. Absolutely.

11 Q. And that's based on the evolution of

12 scientific knowledge about the effects of alcohol;

13 correct?

14 A. It's based upon the whims of the

15 Legislature, first, and, second, it's about the

16 ability to test for the concentration of ethyl

17 alcohol. Simply because the Legislature states a

18 per se value doesn't mean that that applies to

19 every individual. But it has gone lower and it

20 will continue to go lower. I absolutely agree. No

21 question.

22 Q. Do you agree with this statement of

23 Dr. Dubowski: "Until about 1940 almost nothing was

24 known about the kinds of defects in driving

25 capability caused by alcohol at blood

 

Page 32

1 concentrations often accompanying otherwise

2 generally accepted behavior socially. During the

3 last 35 years these matters have been

4 extensively explored. The results of these studies

5 have led, in the United States, to the statutory

6 definition of alcoholic impairment of driving

7 performance shown in "Figure 1," which is the chart

8 we're talking about?

9 A. Absolutely. No question.

10 Q. So according to Dr. Dubowski, there has

11 been an improvement in our knowledge of the effects

12 on blood alcohol levels as they affect driving

13 capability as opposed to social behavior?

14 A. Absolutely.

15 Q. And there's been a growing understanding

16 and knowledge confirmed by scientific testing that

17 even in social situations where the person may

18 appear to behave perfectly acceptably, that person

19 may have a blood alcohol level that impairs the

20 person's ability to drive a motor vehicle?

21 A. No question.

22 Q. Now in 1938 it look like the

23 presumptive level was .16. By 1971 the presumptive

24 level was .08; correct?

25 A. As recommended, correct, as we discussed

 

Page 33

1 earlier, by the National Safety Council.

2 Q. The National Safety Council, the people

3 who are responsible for your safety and mine on the

4 highway; correct?

5 A. As I understand it, that's correct.

6 Q. All right. Now this same study shows

7 that "For 1971 a subject driving with a blood

8 concentration only three-fourths that considered

9 a priori evidence of impairment has a 50 percent

10 chance of being significantly impaired;" correct?

11 A. Yes, I believe that's correct, yes.

12 Q. And the a priori level was .8; correct?

13 A. .08.

14 Q. .08. So three-fourths of .08 would be

15 what?

16 A. .06.

17 Q. .06.

18 A. Exactly where I said they would be

19 impaired.

20 Q. All right. And in your opinion,

21 Mr. Rokes fell within that range, .05 to .087?

22 A. As I stated earlier, if we accept the

23 chemical test, you're absolutely right.

24 Q. All right.

25 A. That's absolutely correct.

 

Page 34

1 Q. Do you have an opinion as to what

2 accounts for the difference between the analysis

3 of the plasma test when converted to whole blood

4 and the whole blood test, the difference between

5 the .087 and the .102 percent?

6 A. No.

7 Q. Do you have any reason to believe one is

8 more accurate than the other?

9 A. I don't believe you can prove the accuracy

10 of either one of them, nor the

11 reliability, based upon the procedures they used,

12 as I understand it, for analysis. Now I also

13 understand we have an absence of procedures. We

14 don't know a whole lot of detail except by

15 deposition. I have seen no indication that either

16 the accuracy or the reliability of either test can

17 be proven.

18 Q. Okay. When there is a difference

19 between two tests, what's the acceptable way of

20 reconciling those differences? Is there some sort

21 of an interpolation that's done, are they averaged,

22 or you just have two different tests?

23 A. You have two different tests by two

24 different technologies and either one or both is

25 correct or either one or both are wrong. That

 

Page 35

1 difference is not one that we could find acceptable

2 in the forensic community between those two tests

3 values, even if you convert the .120 to a whole

4 blood

5 Q. What is the normal acceptable margin of

6 error?

7 A. It depends upon your method of

8 analysis. There is no normal margin of acceptable

9 error. It depends upon what standard you measure

10 and whether or not you do duplicate analysis?

11 Q. And that applies to blood testing as

12 well as Intoxilyzer? I mean I know there's an

13 Intoxilyzer margin of error, but does that apply to

14 blood testing?

15 A. In Iowa you legislate the error of your

16 margin for which there is no scientific basis. You

17 can go ahead and say that the error is .004 or plus

18 or minus 5 percent. That does not make it so if

19 you don't measure the proper standards or do

20 duplicate analysis. And quite frankly, based on

21 the testimony of Calvin Rayburn, I have no idea

22 what he does. I haven't the slightest idea how he

23 tested this sample, except that he uses a gas

24 chromatograph.

25 Q. Have you relied upon either test then at

Page 36

1 all formulating your opinions?

2 A. No. My opinion is that if you believe

3 in the test and I've given you the concentration in

4 which I feel Mr. Rokes could have been at that

5 time. The only thing that I relied upon in these

6 tests is that they don't agree with the portable

7 breath test that was done at the hospital which

8 showed him to be below .10.

9 Q. But the portable test is like a field

10 sobriety test type of thing, isn't it?

11 A. It's a measurement. They have an

12 indication of a concentration. And it may have

13 been done, as well as these other two tests, if you

14 don't measure standards properly and you don't do

15 it twice, they may all have the same validity.

16 Q. Are you aware that the portable Breatholyzer

17 test results that are conducted in the field are

18 usually not admissible?

19 A. In a criminal case, that's correct.

20 Q. Because of their reliability?

21 A. I don't know why.

22 Q. You would leave that to the judges and

23 the Legislature?

24 A. It truly does depend upon how they're

25 maintained and operated. I absolutely agree with

 

Page 37

1 you. But they are certainly used to make decisions

2 about intoxication and blood alcohol levels.

3 Q. If the Iowa Legislature and Iowa judges

4 have seen fit to determine that these results are

5 not accurate enough to be even admissible in a

6 criminal case, would you defer to the Iowa

7 Legislature and the Iowa judges?

8 A. I would rather defer to the scientists

9 but, of course, if that's what your decisions are,

10 those are your decisions.

11 Q. And would you give the Iowa judges and

12 the Iowa Legislature some credit that they relied

13 on scientific evidence and scientific opinions?

14 A. Mike Rehberg said he's never testified

15 before the Legislature nor offered an opinion.

16 Q. You wouldn't even give him that credit?

17 A. No, I didn't say that. I don't know

18 what the input was to arrive at that is what I'm

19 telling you.

20 Q. Is that test result part of your

21 opinion in this case? Have you relied upon it?

22 A. No.

23 Q. All right. So we can set that aside.

24 A. It's an indication that we have got test

25 results that appear to kind of all over the

 

Page 38

1 place. And that's the totality of what evaluate,

2 as I told you before.

3 Q. if a person has a blood alcohol level of

4 either .087 or .102, are you able to determine or

5 have an ideas of the amount of alcohol that

6 person would have consumed to reach that level?

7 A. Yes.

8 Q. All right. And tell me what that would

9 be.

10 A. Well, I haven't the slightest idea

11 because I haven't done that here, but I will. I'm

12 going to need more information.

13 MR. BEVEL: Could you read the question

14 back for me?

15 (The reporter read the last question.)

16 A. What time did the drinking start?

17 Q. You tell me what your parameters are.

18 Okay? Tell me what you would need to know.

19 A. It's your hypothetical. Tell me what

20 time the drinking started.

21 Q. What information do you need?

22 A. I need to know the time frame. You

23 don't have to give me an exact time, but tell me

24 the time frame between the time the drinking

25 started until the time of the test. That is, the

 

Page 39

1 blood sample was drawn.

2 Q. Two and a half hours.

3 A. Okay. I know that based upon my review

4 and if you agree with me, that Tracy Rokes is 250

5 pounds. Which test value do you want to use? It's

6 your hypothetical.

7 Q. Both.

8 A. Shall we do beer?

9 Q. That's fine.

10 A. Was this a normal 3.2 beer in Iowa? I

11 assume that it was.

12 Q. Yeah, I'm assuming. Make that

13 assumption.

14 A. Okay. I have made the additional

15 assumption that all of the alcohol consumed was

16 absorbed into his bloodstream at the time the blood

17 sample was drawn. I've also assumed that his

18 elimination rate, the rate of metabolism, was .015

19 percent per hour. At a blood alcohol concentration

20 of .102 drinking over a two and a half hour period

21 of time for a 250-pound male social drinker, he

22 would have had to have consumed between 12 and 13

23 twelve-ounce beers, and closer to 12 than it was to

24 13. Twelve-ounce beers that are 3.2 percent by

25 volume ethyl alcohol. At a .087 he would have had

 

Page 40

1 to have consumed between 10 and 11, and it's much

2 closer to 11 then it is to 10.

3 Q. Okay. And I'd like to have your sheet

4 marked as an exhibit.

5 (Deposition Exhibit 64 marked for

6 identification as requested.)

7 Q. What is your understanding of Tracy

8 Rokes's account of the amount of beer he consumed

9 that night before his collision?

10 A. Five or six beers is what I recall, and

11 I don't remember the detail of the testimony.

12 Q. Okay. Over what period of time?

13 A. I assumed that he started drinking when

14 he arrived at Brooster's, and he arrived at

15 approximately 8 p.m. is the notation that I have.

16 So it would be from 8 until just before 11,

17 approximately 10:45 or 10:50, if I remember

18 correctly.

19 Q. In your analysis and expressing your

20 opinions, to what extent do you rely upon the

21 alleged intoxicated person's own account of how

22 much he or she had had to drink?

23 A. I don't put a lot of reliance on it.

24 Q. Why is that.

25 A. People normally when they have a social

 

Page 41

1 evening that involves alcohol consumption do not

2 make it a point to count what they drink. So I

3 very often don't rely upon that. I've seen some

4 cases where it's absolutely right on. I've seen

5 other cases, of course, and they are a far more

6 higher number, where it's not.

7 Q. When you've seen cases where they are

8 inaccurate, where does the error in the account

9 usually lie?

10 A. More often then not, it's an

11 underestimate.

12 Q. Usually if somebody says, "I only had

13 three beers," it's more likely that they've had

14 more than three beers; correct?

15 A. The probability is much greater,

16 absolutely. Absolutely.

17 Q. I know if we had a classroom full of

18 police officers here and asked them how many times

19 they've been told when they pulled over a drunk

20 driver that "I only had two or three beers," all

21 hands would probably go up; correct?

22 A. There is no question in my mind that

23 that's correct.

24 Q. All right. And so if Tracy Rokes says

25 he had five or six beers, the probability is that

 

Page 42

1 that's an underestimation; correct?

2 A. That's correct.

3 Q. just based upon your knowledge and

4 experiences, it would not be inconsistent with your

5 knowledge and experience that when Tracy Rokes--

6 that if Tracy Rokes said he had five or six beers

7 that it turned out to be ten or eleven beers?

8 A. I don't believe that. I don't think

9 I've seen that big of a difference. Could he be

10 off by a beer or two? He could be. And then I'd

11 rely upon people that were with him in terms of his

12 testimony.

13 Q. Other people that were drinking with

14 him?

15 A. Yes.

16 Q. I see.

17 A. Or that were with him, whether they were

18 drinking or not.

19 Q. Okay. What is your understanding of

20 when Mr. Rokes had his last drink?

21 A. When did he order his last drink or when

22 did he finish his last drink?

23 Q. When did he finish his last drink?

24 A. Approximately two minutes before he

25 left.

 

Page 43

1 Q. And when did he leave?

2 A. 10:45.

3 Q. Has his account of that been entirely

4 consistent?

5 A. I don't recall and I haven't made any

6 judgment upon that. In fact, I did not go back and

7 review his trail testimony, so I can't tell you

8 that. I don't know whether it was consistent or

9 not.

10 Q. Okay. I mean, in your trial testimony

11 you were asked to assume that Tracy Rokes last

12 drank about ten minutes before this collision

13 occurred, weren't you?

14 A. That would be about 10:50.

15 Q. And isn't it true that Tracy Rokes gave

16 a statement to the police when he said that he

17 left the bar at about 10:30?

18 A. I don't recall that, but he certainly

19 could have. I mean, I have no quarrel with you on

20 that at all.

21 Q. Well, the timing of when he last drank

22 was of some importance to your criminal trail

23 testimony; correct.

24 A. It's important in this testimony, too.

25 Q. Because you've theorized in your trial

 

Page 44

1 testimony that Tracy Rokes's blood alcohol level

2 might still have been rising at the time of this

3 collision; correct?

4 A. That's correct.

5 Q. And so if his statement is correct and

6 he left at 10:30, that might affect your

7 opinions as to the level of blood alcohol at the

8 time of this collision; correct?

9 A. That could very well be. That's

10 correct.

11 Q. All right. And your trial testimony

12 that his blood alcohol was still rising was based

13 upon the hypothetical assumption that he had three

14 beers within an hour of leaving and that the last

15 one was consumed about ten minutes before the

16 collision, isn't that correct?

17 A. Ten or fifteen minutes, yes. I believe

18 it was ten minutes on that. You're correct.

19 Q. All right. Have you been asked to give

20 an opinion or express an opinion as to whether

21 Tracy Rokes's blood alcohol level would have still

22 been rising if he had had five or six beers over

23 the course of his time at the bar and that he last

24 drank at 10:30?

25 A. No, I have not been asked that.

 

Page 45

1 Q. Have you been provided many information

2 about -- well, I understand from your testimony

3 that you do have Tracy --do you have Tracy Rokes's

4 trial testimony? I can't recall.

5 A. Yes. Yes, I have it.

6 Q. All right. Let me ask you this:

7 Alcohol can affect a person's ability to operate a

8 motor vehicle in many ways that are both subtle and

9 not subtle; correct?

10 A. I agree

11 Q. I mean, you can have somebody that's

12 weaving from side to side and across the

13 centerline, but you can also have an extreme

14 obvious impairment, but you can also have

15 impairment that affects a person on a more subtle

16 level, ability to judge distances, time, that sort

17 of thing?

18 A. That's correct.

19 Q. And the subtle differences and the

20 subtle impairment can impair a person to the extent

21 as a result they have a collision; correct?

22 A. Correct.

23 Q. What are some of the ways that alcohol

24 affects a person's ability to drive a car?

25 A. Alcohol affects individuals in terms of

Page 46

1 their -- in the operation of a motor vehicle in

2 terms of judgment, vision, coordination and

3 reaction time.

4 Q. Okay.

5 A. In the judgment, they would do things

6 that they would not normally do in the absence of

7 alcohol, take a chance that they would not normally

8 take.

9 In terms of vision, we see that the

10 first thing that occurs without being concentration

11 specific is a loss of visual acuity, that is

12 sharpness of vision. You can still see objects,

13 but they may not be as well defined as they would

14 normally be. The second thing that occurs from a

15 vision standpoint is that you begin to get loss of

16 peripheral vision and the onset of tunnel vision.

17 At the same time in higher concentrations then what

18 you would get is you would get a diplopia or double

19 vision.

20 Q. Okay.

21 A. In terms of coordination, of course,

22 you're talking about motor coordination and we're

23 talking about the ability to have your body do

24 things that you want it to do and the ability of

25 the body to do that. That's really what

 

Page 47

1 coordination is. If you take the sum and substance

2 of judgment and vision and coordination, that has

3 an effect on reaction time. In other words, it

4 lengthens reaction time.

5 Q. Would it also affect the decisions you

6 make, the quality of the decision making?

7 A. The would be judgment, as I explained

8 earlier.

9 Q. All right. Like swerving left instead

10 of right to avoid a collision?

11 A. I have no idea.

12 Q. Are any of these conditions blood

13 alcohol level specific? In other words, with

14 vision, can you say at what blood alcohol level

15 you're going to begin to get a loss of visual

16 acuity?

17 A. In general terms, simply because not

18 everybody is affected the same and not everybody is

19 affected all the time at the same levels. It's two

20 different things. But, yes, you can. In other

21 words, you would not have -- the onset of the lack

22 of visual acuity would be at levels above .10 and

23 certainly in the area of .11 to .12, in my

24 opinion. The other visual aberrations that occur,

25 that is the loss of peripheral vision, usually you

 

Page 48

1 have to go up in concentration from that, so it

2 would be above a .12 and diplopia would be in an

3 area of probably .14 to .16, that is double

4 vision. So all of these effects that I talk about

5 in general terms are concentration-dependent.

6 Q. Okay.

7 A. So you would see the ramifications of,

8 in other words, I'm talking about the physiological

9 ramifications, you get greater and greater

10 ramifications, I'm sorry, as you get higher and

11 higher concentration.

12 Q. The onset of some impairment of visual

13 acuity, not seeing as well --

14 A. Not seeing as sharply.

15 Q. --as sharply, when would that begin?

16 A. As I said earlier, in the area of

17 the .10 and .11.

18 Q. Okay. What about coordination, motor

19 skills, when would those begin to be impaired?

20 A. You can see that certainly in that area

21 and I think you can see impairment of fine motor

22 coordination before .10.

23 Q. At what level?

24 A. .08, .09. And it could occur before

25 that. Again, we have to talk about averages and

 

Page 49

1 individual differences, but in that area.

2 Q. Okay. What about reaction time, when

3 does that begin to be affected?

4 A. You can affect it at lower

5 concentrations in the area of .07, .08. .06 even

6 you could have a reaction time problem.

7 Q. What about judgment?

8 A. .06 in my opinion you're going to be

9 seeing a decrease in the judgment of an individual

10 in the area of .06. Could it be as low as .05?

11 The answer is yes, it could.

12 Q. What about the ability to either gauge

13 distances of time, is that a matter of -- can that

14 be a matter of judgment?

15 A. It can be a matter of vision, matter of

16 judgment, yes.

17 Q. So, if it's a matter of judgment, the

18 ability to gauge distances or time might begin to

19 be affected as low as .05?

20 A. It could be.

21 Q. Making fine distinction, quick

22 judgments, emergency decisions, can that ability be

23 affected at concentrations as low as .05?

24 A. Year, .06 I'm more comfortable with, but

25 in that area, absolutely. And it could be as low

 

Page 50

1 as .05, absolutely.

2 Q. All right.

3 A. That is, finding yourself in

4 circumstances you wouldn't anticipate.

5 Q. Oh, getting yourself in trouble in the

6 first place? In other words, because your judgment

7 is impaired, you have gotten yourself in an

8 emergency situation that you might have anticipated

9 and avoided had you not hand any alcohol?

10 A. There could be all sorts of

11 ramifications of that, that's correct.

12 Q. All right. So you get yourself in

13 trouble in the first instance when you wouldn't

14 have if you hadn't been drinking or you react in a

15 way that was wrong, you make a bad decision because

16 you're impaired?

17 A. That could very well be true also,

18 absolutely.

19 Q. Are you aware of the circumstances of

20 this collision?

21 A. No.

22 Q. Do you know of the details of the

23 facts?

24 A. No.

25 Q. Do you know anything about the roadway

 

Page 51

1 involved?

2 A. No.

3 Q. Are you aware that Tracy Rokes had a

4 clear line of sight at a flashing red light for

5 about half a mile and just blew that red flashing

6 light?

7 A. No.

8 Q. Are you aware that he told the police

9 and others that he thought he had a green light?

10 A. I believe I saw that, yes, in terms of

11 the statements or testimony, yes.

12 Q. Are you aware that he claimed that he

13 was distracted by his wife and paying more

14 attention to her than the roadway?

15 A. Yes.

16 Q. All right. Can the failure to pay

17 attention and see a flashing red light for at least

18 a half a mile be consistent with somebody who is

19 under the influence of alcohol?

20 MR. BEVEL: I'm going to just state an

21 objection as far as accuracy of the distance. I

22 think that's a misstatement of the facts.

23 But you can answer.

24 A. It could.

25 Q. Could being distracted by your wife or

 

Page 52

1 another occupant in the car and paying more

2 attention to the occupant than the roadway be

3 caused by the effects of alcohol?

4 A. Could be.

5 Q. Could looking at a flashing red light

6 and seeing a green light be consistent with

7 somebody who is drunk?

8 A. Could be.

9 Q. All right.

10 A. All of these things could occur also

11 without alcohol. That's why they have to be

12 answered could be, because those are how accidents

13 happen.

14 Q. I agree with you somebody could drive

15 recklessly with or without consuming alcohol.

16 A. Absolutely.

17 Q. You would agree that's consistent with

18 reckless conduct, would you not?

19 A. If you're asking me for a legal

20 definition, I'm not -- I'm not qualified to give

21 that to you.

22 MR. BEVEL: I won't make an objection.

23 Q. It it still your opinion that

24 Mr. Rokes 's blood alcohol level was rising at the

25 time of the collision?

 

Page 53

1 A. Yes.

2 Q. Even if he had been drinking for two and

3 a half hours and even if he had stopped drinking a

4 half-hour before the collision?

5 A. Yes, it is. The scientific literature

6 indicates that it's more probable than not that his

7 blood alcohol concentration would still be rising

8 even if he stopped at 10:30.

9 Q. Okay.

10 A. That's absolutely correct from my

11 position.

12 Q. So in your opinion, he would have been

13 driving along this roadway towards this

14 intersection with a rising blood alcohol level?

15 A. Yes.

16 Q. Would you regard that as a safe thing to

17 be doing?

18 A. I wouldn't do it. You are not asking

19 for a legal definition?

20 Q. No.

21 A. Okay.

22 Q. Do you have any opinion as to when his

23 blood alcohol level peaked?

24 A. If he had nothing in his stomach, and I

25 believe he had nothing in his stomach, my guess,

 

Page 54

1 and it has to be a guess, if he stopped drinking at

2 10:30, a number you apparently like, it would

3 probably reach its peak at about 11:30.

4 Q. It's not a matter of what I like. It's

5 a matter of what Mr. Rokes told the police, and if

6 he told the jury something different, the jury can

7 reconcile that.

8 A. I understand that.

9 Q. But that's what he told the police.

10 Would 15 minutes make a difference?

11 A. I rely upon an average of an hour. You

12 know, if we go back and look at the research that

13 was done by Professor Widmark, he says an hour to

14 hour and a half after the cessation of drinking,

15 and Dubowski says 57 minutes for the average for a

16 male on an empty stomach you would reach the

17 maximum. So you rely upon the totality of that.

18 Q. And, of course, part of that depends

19 upon how quickly you consumed the alcohol; correct?

20 A. Well, part of that depends upon when you

21 finish your last drink and at what rate you've been

22 consuming up to that.

23 Q. Because the drinks that you consume

24 earlier are metabolizing and going into the

25 bloodstream?

 

Page 55

1 A. They are being absorbed.

2 Q. Absorbed into the bloodstream even as

3 you're drinking your last drink; correct?

4 A. Absolutely. That's correct

5 Q. So if he had been drinking for two, two

6 and a half hours before leaving the bar, by the

7 time he left the bar he would have been feeling the

8 effects of any beer that he ad consumed more'

9 than an hour prior to leaving?

10 A. I would say that's probably true, yes.

11 That would be the rule of thumb that I would use.

12 Q. All right. Now at 11:30 your opinion

13 is, your view is that his blood alcohol would have

14 peaked?

15 A. If he stopped drinking at 10:30.

16 Q. All right. So that by the time the

17 blood samples were drawn at 12:30, approximately.

18 12:38, his blood alcohol level would have been on

19 the decline?

20 A. At the time they were drawn, that's

21 correct.

22 Q. And what is the rate of decline that you

23 use?

24 A. Well, I use for social drinker what I

25 used in my estimate for you in Exhibit 65 as .015

 

Page 56

1 percent per hour.

2 Q. If you apply .015 percent per hour to

3 the values that were obtained, what number do we

4 come up with for his blood alcohol level at the

5 time that it peaked?

6 A. It peaked -- actually just beyond the peak

7 is when an absorption is complete. Let's use those

8 terms synonymously. If he's in an elimination

9 phase, from that time, for his blood alcohol

10 concentration I'll simply add .015 to both of those

11 values.

12 Q. Okay. So at .087 we've got .102

13 A. .102.

14 Q. and if it's .120 --

15 A. No, no, no. If it's .102 --

16 Q. .102, excuse me.

17 A. --it's .117 at the time of peak, if

18 that occurred at 11:30. We have a tremendous

19 number of variables here. Not the time of driving,

20 based solely upon finishing alcohol consumption at

21 10:30.

22 Q. Have you reviewed and relied upon any of

23 the testimony or observations of any witnesses?

24 A. I've reviewed them, yes.

25 Q. have you relied upon the testimony of

 

Page 57

1 any of the witnesses in formulating your opinions?

2 A. They're all over the place. The ones

3 that I've reviewed, their opinions about the

4 intoxication of Tracy Rokes are all over the

5 place. The professional observers of intoxication,

6 the law enforcement officers and the nurses don't

7 indicate that they saw signs of intoxication that I

8 recall. Now the lay witnesses do. l

9 Q. That's your interpretation of the

10 testimony you've been supplied?

11 A. Absolutely.

12 Q. Have the observations or the testimony

13 of witnesses that you have been supplied, have they

14 played any role in you opinions in this case?

15 A. No. Really, as I said they're all over

16 the place.

17 Q. If Tracy Rokes had a blood alcohol level

18 of .05 at the time of the collision, how many beers

19 would he have had to have consumed?

20 A. Are we still having a two and a half

21 hour consumption time?

22 Q. Same assumptions.

23 A. Same assumptions. So there are

24 assumptions of 10 o'clock beginning of drinking.

25 Q. Eight o'clock of beginning of drinking.

 

Page 58

1 A. Not if we have two and a half hours from

2 the time he started drinking on Exhibit 64 until

3 the time he stopped drinking on Exhibit 64

4 is not correct. And you gave me two and a half

5 hours. Two and a half hours to 12:30, the time of

6 the test, is 10 o'clock.

7 Q. That's fine. He started to drink at

8 8 o'clock and he stopped about 10:30 and I asked

9 earlier if you had give me the opinion of the

10 amount of beers he would have had to have had to

11 produce blood alcohol levels of .102 and .087.

12 A. And that is dependent upon the time

13 period over which he drank and you told me two and

14 a half hours.

15 Q. Right.

16 A. I misinterpreted that.

17 Q. I suppose the time of day that he

18 started drinking isn't relevant for the purposes of

19 this exercise.

20 A. No, but the time period from the time he

21 started drinking to the time the blood sample was

22 drawn is relevant.

23 Q. I understand that.

24 A. MS. HALL: Excuse me, if I could make a

25 clarification. Is your question assuming that

 

Page 59

1 immediately at the time of the collision a blood

2 sample is drawn and analyzed?

3 MR. LIABO: No, no.

4 MS. HALL: Or are you assuming that the

5 blood was drawn approximately an hour and a half

6 after the collision?

7 MR. LIABO: I'm assuming what Dr. Jensen

8 was assuming earlier, that Mr. Rokes had a blood

9 alcohol level -- your testimony is that, in your

10 opinion, his blood alcohol level at the time of the

11 collision was between .05 and .087.

12 A. There is no way to make that

13 calculation.

14 Q. What I want to know is if it was .087,

15 you told me earlier that he would have had to have

16 had about 10 to 11 beers.

17 A. I just told you that estimate is

18 wrong because of the time frame that you gave me.

19 Q. Our assumption was he was drinking over

20 two and a half hours.

21 A. My question of you was what was the time

22 period from the time he started drinking to the

23 time the blood sample was drawn and you told me two

24 and a half hours. And either we micommunicated,

25 but that's not true.

 

Page 60

1 Q. Let's go to your assumptions then if we

2 weren't communicating properly. Let's talk about

3 alcohol consumed that produces the blood alcohol

4 level that you believe was in the range of his

5 blood alcohol level at the time of the collision.

6 We'll start at .05 and we will do .087.

7 A. Based upon the chemical tests? Are we

8 relying upon the chemical tests?

9 Q. Well, you have told me that--

10 A. I have told you that if he's still

11 absorbing that you're not going to make this

12 estimate and have any meaning to it. I can tell

13 you how much Tracy Rokes would have to consume to

14 reach a .05 at the time of the accident, but if

15 he's still absorbing it has absolutely nothing to

16 do with what was consumed. And that's the problem

17 we're talking about in this entire case is the

18 inability to make predictions when you are

19 absorbing alcohol.

20 Q. How much would he have had to consume to

21 reach .05 at the time of the collision?

22 A. If we drew a sample and he was .05 at

23 the time, what's the minimum amount it would take?

24 Q. All right.

25 A. The amount of alcohol it would take a

 

Page 61

1 250-pound male that began the consumption at 8 p.m.

2 and arrived and be .05 with all of the alcohol

3 absorbed by 11 p.m. would be eight to nine 12-ounce

4 beers, and those are 3.2 beers by volume ethyl

5 alcohol.

6 Q. Okay. When earlier you gave me the

7 figure of 10 to 11 at a .087 blood alcohol --

8 A. I told you that those calculations are

9 flawed, because we're not using the same parameters

10 in this calculation as we use there.

11 Q. All right. Do the numbers then so that

12 we're consistent.

13 A. You bet.

14 Q. What's the number?

15 A. Absolutely. You want a .087 and how

16 many beers it would take over the entire time?

17 Q. Right.

18 A. Okay. Between 13 and 14.

19 MR. LIABO: Can we mark that sheet,

20 please?

21 (Deposition Exhibit 65 marked for

22 identification, as requested.)

23 Q. Now I want to make sure I understand

24 your assumptions. Are you assuming that all of the

25 alcohol that he consumed had been absorbed?

 

Page 62

1 A. For what purpose are you asking me the

2 assumption?

3 Q. To arrive at the number of beers.

4 A. the last calculation or the calculation

5 of .05? Which one do you want to talk about?

6 Q. Well, you applied the same methodology

7 to both, didn't you?

8 A. I did. But that doesn't mean the

9 assumptions are the same. I applied the same

10 equations.

11 Q. What was different about your approach

12 with the .05 than you approached with the .087?

13 A. As I stated when I did the calculation,

14 that you asked me for the amount of alcohol

15 consumed to reach a .05.

16 Q. Right.

17 A. And I told you that would be at the time

18 of the accident and I told you that I assumed that

19 it was all absorbed.

20 Q. No, the last two calculations you gave

21 me.

22 A. That is precisely what I'm talking about

23 and it's the same thing that I said before, that

25 at .05 I assumed the amount of alcohol--

25 Q. I understand that part. We're not

 

Page 63

1 tracking with each other. With respect to the

2 last two calculations you gave me, .087, 13 to 14

3 beers, .05, eight to nine beers; okay? You

4 assumed, because I asked you to, that the blood

5 alcohol level at the time of the collision,

6 assuming that there was a blood sample drawn at

7 that time, was at those levels; correct?

8 A. And that that was as high as it got, it

9 was all absorbed.

10 Q. Okay.

11 A. That's exactly what I've said every time

12 I've done the calculations. If you want to assume

13 he's still absorbing at the time of the accident

14 and was still .05 --

15 Q. Then he would have had to have had more?

16 A. Of course. And then it would be the

17 second one that I did for you if the value is

18 truly .087 at the time the blood sample is drawn.

19 Q. Okay. So the first set of calculations

20 assumed a rising blood alcohol level that peaked at

21 a later time than at the time of the collision?

22 A. The calculation that you asked me for

23 the .05 was, very simply put, how much would be

24 have had to have consumed to reach a .05 and

25 nothing more. In other words, it was absorbed and

 

Page 64

1 it's all absorbed at 11 o'clock. That was it. If

2 he's going to be higher later, he has to consume

3 more.

4 Q. Among the materials you've received is a

5 report from Dr. Bederka?

6 A. Correct.

7 Q. Have you done anything with that or

8 looked at it?

9 A. I've read it, yes.

10 Q. Have you been asked to comment on it?

11 A. I haven't been asked to comment on it.

12 I have commented on it.

13 Q. All right. What comments do you have

14 about it?

15 A. I guess I don't know the source of some

16 of his information about the scientific literature

17 saying that you're going to peak within ten minutes

18 after drinking six beers in an hour. I've never

19 seen that and I certainly could be educated in that

20 matter.

21 I've never seen a trauma victim show

22 a different rate of elimination than a nontrauma

23 victim. And I believe that elimination rate

24 of .029 percent per house is a bit high for a social

25 drinker. I have not seen indications in the

 

Page 65

1 scientific literature of that, not have I seen it

2 with subjects that I've tested.

3 There's all sorts of conversions, and

4 we've talked about using a 15 percent conversion

5 from whole blood -- from serum to whole blood.

6 That's not irrespective of hematocirt. That is very

7 much related to the hematocrit. However, it's

8 about the only measure they have, and it's still an

9 average and it's all over the place.

10 I guess the problem that I'm going to

11 have more than anything else is Conclusion Number 7

12 that "The analytical precision and accuracy of the

13 alcohol analyses at Sartori and DCI were equally

14 proficient in terms of the results shown and as

15 stated," and I don't know the basis for that, since

16 I found no identification from what I reviewed that

17 indicated either the accuracy or precision in terms

18 of their quality control.

19 My other comment was that in terms of

20 his calculations that he would be a .125 to .155,

21 at the time of the accident I would expect to see

22 clear and distinct signs of obvious intoxication at

23 those levels and that there would not be any

24 question about whether or not he was intoxicated at

25 that time from observations of other individuals.

 

Page 66

1 Q. Okay. And what signs of intoxication

2 would you expect?

3 A. You would expect to see a variety of

4 signs. They're not the same for everybody, of

5 course. But you certainly would expect to see

6 unsteady on their feet at that level, you'd expect

7 probably -- remember, these are general signs and

8 they may or may not be present --expect to see

9 slurring of the words, you may expect not to see a

10 consistency of logic. You would expect to see a

11 loss of muscle tone. That generally I would say

12 would cover it.

13 Q. All right. Did you review the testimony

14 if any witnesses who reported observing those kinds

15 of things?

16 A. Yes, yes. Witnesses that did report and

17 those witnesses said they were present also. Other

18 witnesses said they were absent. Yes, I did, I

19 certainly did.

20 Q. Some witnesses saw him staggering;

21 correct?

22 A. That's correct.

23 Q. Some witnesses saw him -- well, there

24 witnesses who observed the odor of alcohol on

25 his breath; correct?

 

Page 67

1 A. That has nothing to do with

2 intoxication.

3 Q. It has to with with drinking, though,

4 doesn't it?

5 A. You're absolutely right. And it has to

6 do with the closeness of drinking to the time of

7 the observation. The stronger the odor, the more

8 recent the individual has consumed. That's the

9 only measure it is. It tends to verify recent

10 consumption.

11 Q. Did you observe or did you read accounts

12 of people reporting that Mr. Rokes was talkative,

13 wouldn't be quiet, wouldn't sit down?

14 A. I did read that.

15 Q. And then we have Mr. Rokes himself

16 saying that the light was green and it was flashing

17 red; correct?

18 A. I read that also.

19 Q. So I understand your testimony, from

20 taking the witnesses and their observations, you're

21 saying that there were witnesses who reported

22 observations that are certainly consistent with

23 someone with a blood alcohol level of .125 or

24 above; correct?

25 A. That's correct.

 

Page 68

1 Q. But then there were other witnesses who

2 didn't maybe report those same conditions?

3 A. Who did not report those same

4 conditions, who were trained peace officers, as I

5 understand it.

6 Q. Do you agree with the list of functions

7 that could be affected by alcohol that Dr. Bederka

8 had identified, peripheral vision during

9 multi-taking, color discrimination, depth

10 perception, vigilance, clear headedness, short-term

11 memory?

12 A. Yes.

13 Q. And there is some evidence in the record

14 that Mr. Rokes was affected in these ways; correct.

15 A. there is some evidence, that's correct.

16 Was he also hit in the head?

17 Q. He was involved in a motor vehicle

18 collision; correct?

19 A. Yes. And sustained an injury.

20 Q. Do you have any other opinions that we

21 haven't discusses?

22 A. No.

23 MR. LIABO: I think those are all the

24 questions I have

25 THE WITNESS: Thank you.

 

Page 69

1 (Recess taken.)

2 DIRECT EXAMINATION

3 BY MS. HALL:

4 Q. Dr. Jensen my name is Linda Hall and I

5 represent Tammy Kleinheksel in this case. And I

6 want to go back to your hypotheticals that Mr. Liabo

7 went through with you. You did some calculations

8 under a hypothetical and those calculations were

9 marked as Exhibit 64. What were the assumptions

10 that you were making in making those calculations?

11 A. I made the assumption on that that there

12 was a two and a half hour period of time from the

13 onset of drinking until the time the blood samples

14 were drawn and that the male weighed 250 pounds and

15 demonstrated an eliminations or metabolism rate of

16 0.015 per hour.

17 Q. How did those calculations differ from

18 the second set of calculations you did later on?

19 A. The only place that they differed was

20 the drinking started at 8 o'clock, so clearly

21 there's more than two and a half hours from the

22 time the onset of drinking occurred until the time

23 the blood sample was drawn. It was four and a half

24 hours. so that's the only difference.

25 Q. Okay. Dr. Jensen, I think Mr. Liabo's

 

Page 70

1 question had to do with assuming drinking started

2 at 8 o'clock and you were able to draw a sample at

3 the instant the crash occurred, how many drinks

4 would Mr. Rokes have had to have if he had a blood

5 alcohol at .05 and .087 at the instant of the

6 crash.

7 A. That's correct. And that's what we did

8 on Exhibit 65, not on exhibit 64, which you asked

9 me about. On 64, you see, I misinterpreted

10 Mr. Liabo's question in terms of the two and a half

11 hour period of drinking.

12 Q. How so?

13 A. I just did. I asked the question and I

14 believe the record will reflect the time period

15 from the time drinking started until the time the

16 blood sample was drawn and I was given two and a

17 half hours. And if that was not meant, I

18 interpreted it incorrectly and it should have been

19 four and a half hours. And if you'll recall, my

20 question was what time did drinking start.

21 Q. I think we're assuming that drinking

22 started at 8 o'clock or shortly thereafter and

23 we're assuming a collision occurring at 11 o'clock.

24 A. And I clearly understand that.

25 Q. Okay. And which one of your two

 

And Page 71

1 calculations reflects that scenario?

2 A. 65.

3 Q. So 64 would reflect a scenario where

4 somebody started drinking at 8?

5 A. Absolutely not. That is not correct.

6 It would be starting drinking at 10 if the blood

7 samples were drawn at 10:30.

8 Q. A half-hour period of time?

9 A. You asked me what Exhibit 65 reflects.

10 Q Right

11 A. And we have conceded that it does not

12 reflect anything that goes to the facts in this

13 case. It is based upon my question from Mr. Liabo

14 over what period of time was drinking from the time

15 it started until the time the blood samples were

16 drawn. I was given two and a half hours. It

17 reflects that. We know that's not correct. And

18 I'll be very happy to repeat the estimate of 64

19 beginning of drinking at 8 o'clock with a blood

20 sample drawn at 12:28 a.m.

21 Q. Okay. So Exhibit 64 is a calculation

22 where the drinking started at 8 o'clock and the

23 blood was drawn at 12:20?

24 A. That is not correct. And that's just

25 exactly what I answered, the same question.

 

Page 72

1 Q. Now for the criminal trial you formed an

2 opinion that at the time of the collision

3 Mr. Rokes's blood alcohol was increasing, is that

4 correct?

5 A. That's correct.

6 Q. To what extent did you rely on

7 Mr. Rokes's account of what he had to drink that

8 evening in forming that opinion?

9 A. I relied heavily upon that.

10 Q. Now I believe during questioning by

11 Mr. Liabo you stated that people tend to minimize

12 the number of drinks that they have had.

13 MR. BEVEL: I'm going to object. I

14 think it's a misstatement of the record. I think

15 the word he used was "underestimate."

16 Q. Okay. With that change, would you agree

17 with that statement?

18 A. I agree with that statement.

19 Q. But the test results that we have, the

20 objective test results we have, contradict what

21 Rokes said he had to drink; correct?

22 A. What do you mean by objective? Do you

23 mean are accurate?

24 Q. I'm talking about the two test results,

25 the one that was at Sartori and the one that was

 

Page 73

1 taken at the DCI laboratory.

2 A. That's the two numbers we have; correct?

3 Q. And you would agree those would be

4 objective?

5 A. I don't agree they are accurate and

6 reliable. I absolutely do not. That's why I asked

7 you for your definition of objective, because what

8 it means to you as a lawyer and what it may mean to

9 me as a scientist may be two different things.

10 Q. Wouldn't you agree that what Mr. Rokes

11 said he had to drink is a very subjective piece of

12 evidence?

13 A. Correct.

14 Q. And that is one that is open to all

15 kinds of errors and omissions; correct?

16 A. Just like the tests.

17 Q. But in forming your opinion on whether

18 his blood alcohol level was going up or down, you

19 just said that you relied heavily on what Mr. Rokes

20 said he had to drink?

21 A. That's correct, it was the only source I

22 had.

23 Q. So isn't it true that your assumption is

24 based on faulty information?

25 A. No, it's not. I don't know how you can

 

Page 74

1 say that. I don't believe it is.

2 Q. Now I read in you trial transcript, you

3 had some charts you were referring to in your

4 testimony. Were those charts that you brought with

5 you?

6 A. Yes.

7 Q. Do you have those her on the premises?

8 A. I don't know what I used. I may

9 have them here, but I don't even know what I used.

10 Q. I believe there was two graphs that had

11 a time line and a blood alcohol level on the

12 vertical axis.

13 A. Did I refer to an Australian study?

14 Q. Yes, you did.

15 A. The answer is yes, I do.

16 Q. Okay. Can you show those to us?

17 A. Yes. I can show you that one. I don't

18 know when you say "those".

19 Q. Okay. Now does this chart that you used

20 for the criminal trial, does that show the blood

21 alcohol level over what-- over a 300-minute period

22 of time? Is that what that purports to show?

23 A. That's exactly what that shows.

24 Q. Can you explain the reason why the line

25 has peaks and valleys like it does?

 

Page 75

1 A. You're talking about on the absorptive

2 side of the curve, which would be to the left of

3 the maximum?

4 Q. I guess my question is why does it --

5 why does the graph bounce up and down as much as it

6 does?

7 A. Well, first of all, it's because that's

8 what the readings were when they took them on this

9 individual. And number 2, the cause of that would

10 be a phenomenon known as steepling.

11 Q. Which means what?

12 A. During the absorptive phase where you

13 still have alcohol in your stomach, the stomach

14 through the pylorus valve allows the stomach

15 contents to go into the small intestine. Alcohol

16 is very rapidly absorbed in the bloodstream from

17 the small intestine, but not all of the stomach

18 contents go through at the same time. And what

19 occurs when a portion of the contents if it

20 contains alcohol goes through in the small

21 intestine is you see a sharp rise in the blood

22 alcohol concentration. If the stomach does not

23 dump any other contents in the small intestine,

24 then you see the effect of metabolism causing it to

25 decrease. That makes a peak until the

 

Page 76

1 opens again and you transfer a portion of the

2 stomach contents into the small intestine.

3 Q. Is that based to any degree upon a

4 person's metabolic rate?

5 A. The rate of decrease is the person's

6 metabolic rate.

7 Q. Wouldn't the rate of absorption also be

8 affected by the metabolic rate?

9 A. No. If you're talking about metabolic

10 means the destruction of alcohol, the answer is no.

11 Q. No, I'm talking about the rate of

12 absorption.

13 A. I understand that. The things that

14 effect the rate of absorption are how fast you pour

15 it down your throat, your state of health, your

16 stomach contents and your state of stress.

17 Q. Now we were talking a little bit about

18 whether a specific blood alcohol level would be

19 considered dangerous, or I think the term might

20 have been reckless. And I want to ask you, would

21 you want to encounter someone on the road traveling

22 between 45 and 50 miles an hour with a blood

23 alcohol level of .05?

24 MR. BEVEL: I'm going to object if

25 you're asking -- I'm interpreting your question is

 

Page 77

1 including the phase or asking him to incorporate

2 the term "reckless" in his answer. If that is the

3 case, I'm going to object that that calls for the

4 witness to give a legal answer or answer a legal

5 question. If that's not the case then --

6 Q. Let me rephrase my question,

7 Dr. Jensen. Knowing what you know about alcohol

8 and how it affects an individual, would you want to

9 encounter someone driving down the road at between

10 45 and 50 miles per hour with a blood alcohol level

11 of .05?

12 A. I would prefer not to.

13 Q. What about .06?

14 A. I would prefer not to. And you can keep

15 going up the line and I still prefer not to.

16 Q. Okay. Why is that?

17 A. That is simply because I would just as

18 soon not take the chance.

19 Q. And what chance do you perceive from

20 the scenario?

21 A. Of any occurrence.

22 Q. Now there was some discussion about

23 those preliminary what are called in Iowa

24 preliminary breath tests, the little boxes that the

25 officers carry out in the field to draw a

 

Page 78

1 preliminary breath sample to make a determination

2 of whether or not an individual is intoxicated

3 Are you familiar with those devices?

4 A. I am.

5 Q. Have you done testing on those devices?

6 A. I have. I don't know which device

7 specifically you're talking about, but I have on

8 those type devices, and there are a variety.

9 Q. I'm not sure I can give you a specific

10 model number or anything like that, but in general

11 don't they all operate the same?

12 A. No.

13 Q. Okay. How do they differ?

14 A. They differ in the way they take a

15 sample or the way the alcohol is detected. I think

16 the most common ones use a fuel cell and that a

17 sample is introduced into the fuel cell chamber and

18 it reacts, if you will, to give a reading. I don't

19 know in Iowa whether you use the ones that have the

20 green, yellow, and red lights or whether you get a

21 numerical readout.

22 Q. Okay. I think we probably have the ones

23 that use the numerical readout. Have you done

24 testing with those types of devices?

25 A. Yes.

 

Page 79

1 Q. And do you have an opinion as to the

2 accuracy or reliability of the results of those

3 devices?

4 A. There again, accuracy and reliability

5 are two scientific terms that are well defined and

6 it's how you use them. They can be accurate and

7 reliable and studies have shown that. But you have

8 to make sure that they're calibrated properly and

9 you have to do two tests at a minimum.

10 Q. How would one calibrate one of those'

11 little hand-held devices?

12 A. Well, you would do it with something

13 called a simulator. A simulator in evidential

14 breath test areas is a vapor of a known alcohol

15 concentration at the temperature of exhaled breath

16 or approximately thereof at 34 degrees.

17 Q. And you would have to do that

18 immediately prior to testing the questioned sample;

19 correct?

20 A. Certainly you ought to do it as close as

21 possible to that time. I absolutely agree.

22 Q. And if for some reason you can't

23 properly calibrate the instrument prior to

24 administering a test of the questioned sample, then

25 would you consider any results of the questioned

 

Page 80

1 sample to be flawed?

2 A. They certainly could be, yes, I agree.

3 Absolutely. If you don't check the calibration at

4 or about the same time as the unknown, I absolutely

5 agree with you.

6 Q. Have you provided any testing -- or not

7 testing, but testimony, have you provided any

8 testimony to any government entity such as state

9 legislatures in studying or recommending testing

10 procedures and blood alcohol levels and that type

11 of thing?

12 A. No, I have not.

13 Q. We talked a little bit about the effects

14 that alcohol has on the human body and some of the

15 signs and symptoms of intoxication and impairment.

16 Has it been your experience, Dr. Jensen, that

17 experienced drinkers are better able to compensate

18 for the effects of high levels of alcohol that

19 would otherwise impair social drinkers?

20 A. No, that's not my experience. If you

21 will allow me to rephrase you question, only from

22 the standpoint of can people -- can experienced

23 drinkers mask some of the outward signs and

24 symptoms of intoxication, the answer is yes. You

25 asked about being affected by alcohol. Even though

 

Page 81

1 they may not show signs and symptoms, they can

2 still be affected by alcohol, and I didn't want to

3 confuse your question.

4 Q. Okay. So even an experienced drinker,

5 although he or she may not be stumbling or have

6 slurred speech or some of the common signs and

7 symptoms, that person's ability to safely operate a

8 motor vehicle would be the same as a social

9 drinker?

10 A. Essentially correct. It depends upon

11 the task, because we talked earlier also about the

12 task orientation. But we see this -- we see this

13 in alcoholics. You have to practice the tolerance

14 and practice hiding signs, and you can do that up

15 to a certain level, yes.

16 Q. But their level of impairment is the

17 same: correct?

18 A. Yes, they are still impaired in the

19 operation of a motor vehicle.

20 Q. Wonderful. Now as I indicated earlier,

21 I read through your trial testimony from the

22 criminal case, and Mr. Correll went through in

23 rather great detail your educational background and

24 your experience. As I understand it, you received

25 your Bachelor of Science degree in chemistry in

 

Page 82

1 1960 from Iowa State University?

2 A. That's correct.

3 Q. What course did you take at Iowa State

4 to earn that degree?

5 A. Whatever was the chemistry major program

6 at that time. Analytical chemistry, general

7 chemistry, organic chemistry, physical chemistry.

8 I don't recall at that time whether there was an

9 inorganic chemistry course.

10 Q. Did you have any courses in biology or

11 human physiology?

12 A. Biology, yes. I don't recall human

13 physiology. And I don't know that I've ever had a

14 specific course in human physiology.

15 Q. And the your received your Master's

16 degree in analytical chemistry form the University

17 of Iowa. And what year was that?

18 A. '64.

19 Q. And what did you do to earn that degree?

20 A. Took the required coursework that's

21 related to the Master of Science degree and also

22 conducted research and wrote a thesis.

23 Q. Okay. Can you tell us specifically what

24 those covered?

25 A. I couldn't possibly tell you what they

 

Page 83

1 covered. They were all chemistry courses. There

2 were probably -- I don't recall whether we were

3 talking four language courses at that time or not as

4 part of the requirements, but I don't remember any

5 other courses other than chemistry courses.

6 Q. Did you have any biology or human

7 physiology courses in connection with your receipt

8 of that Master's degree?

9 A. No.

10 Q. And then you received your Ph.D. again

11 in analytical chemistry from the University of

12 Iowa. Was that in 1965?

13 A. Yes, it was.

14 Q. And what did you have to do to earn that

15 degree?

16 A. Again, it was completion of coursework

17 and research. It was more research than anything

18 else. Research and the publication and defense of

19 thesis.

20 Q. And what research work did you do to

21 earn your Ph.D.?

22 A. I did research in method development.

23 That is in method -- I developed a method for the

24 analysis of small concentrations of zinc and

25 cadmium, I believe. That is defining the

 

Page 84

1 analytical methods to assure an accurate, reliable

2 test result.

3 Q. Did that work have anything to do with

4 the effects of alcohol on the human body?

5 A. Oh, no.

6 Q. It had nothing to do with what you are

7 now specializing in?

8 A. No. Well, the specialty that I have

9 here you realize is related to analytical chemistry

10 as we're talking about testing, so the answer is

11 yes, it does have something to do with what I am

12 testifying to. It doesn't have anything to do at

13 that time with the effects of alcohol, but it

14 clearly has something to do with the measurement.

15 Q. But I guess my question, Dr. Jensen, is

16 your Ph.D. did not come from any work or expertise

17 in the area of alcohol and how it is metabolized by

18 the human body or any of this?

19 A. That's absolutely correct.

20 Q. And as I understand your testimony form

21 the criminal case, your work experience has been

22 primarily in determining what substances are

23 present in body fluids and the quantity of those

24 substances?

25 A. And the interpretation of the test

 

Page 85

1 results, that is correct.

2 Q. Have you performed any test or trials

3 on human subjects in terms of alcohol consumption?

4 A. Yes.

5 Q. And in connection with what work did you

6 do that?

7 A. Well, I did that when I was teaching at

8 Gustavus Adolphus College. I also did that as

9 Assistant Director of the crime lab of the State of

10 Minnesota. We continue to do it today. And that

11 is where we dose the individual to specific levels

12 and measure their blood alcohol concentrations and

13 observe their behavior.

14 Q. Have you taken any special courses or

15 seminars in the area of human biology or human

16 physiology?

17 A. I'm sure it was incorporated in biology

18 courses that I had, but specific courses, no.

19 Q. Would those have been more basic biology

20 courses rather than advanced biology courses?

21 A. I'm sure that's probably true.

22 Q. Would those have been more basic biology

23 courses rather than advanced biology courses?

24 A. I'm sure that's true. I certainly don't

25 have a biology minor, I'll tell you that.

 

Page 86

1 Q. And you're not a practicing physician, I

2 take it?

3 A. Of course I'm not.

4 Q. Would you agree that alcohol is a

5 central nervous system depressant?

6 A. Yes.

7 Q. Then finally, maybe more for the sake of

8 curiosity than anything, I noticed in your trial

9 testimony from the criminal case there was some

10 reference to Widmark's formula. Is that the

11 formula that you used in your calculations here

12 today?

13 A. Yes, I did.

14 Q. And what information do you need in

15 order to come up with an answer?

16 A. It depends upon the question you're

17 asking as to what the answer will be. Widmark's

18 equations which are referred to in the references

19 of Dr. Bederka is a publication in 1932 that

20 allowed us to be able to make an estimate of

21 somebody's blood alcohol concentration if we knew

22 what they consumed over what period of time, as

23 well as the alcohol that was absorbed at that time

24 if you wanted to know. conversely, his development

25 of his equations allowed us to make a prediction of

 

Page 87

1 how much alcohol was consumed if we know the

2 concentration of alcohol in the blood knowing

3 the same parameters. So it depends on the question

4 that you ask.

5 MS. HALL: I believe that's all I have.

6 Thank you, Doctor.

7 THE WITNESS: Thank you.

8 MR. LIABO: I don't have anything.

9 Thanks.

10 (Deposition concluded at 12:42 p.m.)

updated 12/22/16