updated 01/02/10
See also: Richard Jensen
Criminal Trial Deposition
See also: Richard Jensen
Criminal Trial
See also: Richard Jensen PhD.
See also: Toxicological Truths and
Untruths
Deposition February 26, 1999, Forensic Associates, Inc. 4690 IDS Center, 80 South Eight Street, Minneapolis, Minnesota.
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 01/02/10