See also: Richard Jensen Criminal Trial Deposition
See also:
Richard Jensen Civil Trial Deposition
See also: Richard Jensen Expert Witness
See also:
Toxicological Truths and Untruths

RICHARD JENSEN
EXPERT WITNESS
CRIMINAL TRIAL


State of Iowa v. Tracy Allen Rokes May, 1997
Testimony of
Richard E. Jensen, PhD.

 (70 pages approx.)

920

9 DIRECT EXAMINATION

10 BY MR. CORRELL:

11 Q. Will you state your name, please.

12 A. Richard E. Jensen, J-E-N-S-E-N.

13 Q. And what is your address?

14 A. My business address is 4690 IDS Center in

15 Minneapolis.

16 Q. And what is your employment?

17 A. I'm employed by Forensic Associates,

18 Incorporated, a company which I own. I'm employed as an

19 analytical chemist and toxicologist.

20 Q. Would you indicate for us, sir, what is your

21 age?

22 A. I'm 59 years old.

23 Q. And would you indicate to the court in what

24 area of the country was it that you grew up?

25 A. I grew up in Iowa. I was born in Des Moines.

921

1 I was raised in Ames. My mother still lives in Ames.

2 Q. Have you received any education beyond a high

3 school diploma?

4 A. Yes, I have.

5 Q. And would you indicate where you received the

6 , if you, in fact, did receive one?

7 A. I received a bachelor of science degree at

8 Iowa State University in --

9 Q. I guess it's a BS.

10 A. That's correct. In 1960 with a major in

11 chemistry.

12 Q. And did you receive any formal education

13 leading to degrees after the 1960 degree?

14 A. Yes, I did.

15 Q. And what year and what institution?

16 A. I graduated then from the University of Iowa

17 with a master of science degree with thesis and research

18 in analytical chemistry and in 1965 again from the

19 University of Iowa with a Ph.D. in analytical chemistry,

20 thesis and research in that same area.

21 Q. When you received your Ph.D., what kind of

22 chemistry was it?

23 A. Analytical chemistry.

24 Q. What's analytical chemistry mean?

25 A. That's that branch of chemistry that deals

922

1 with analysis, as you might surmise, not only deals with

2 the type of material that's present, that is identifying

3 the type of material present, but also the quantity of

4 material present, usually deals with small concentrations

5 of material.

6 Q. After you received your Ph.D. in analytical

7 chemistry in 1965, did you obtain employment generally

8 related to that field?

9 A. Yes.

10 Q. And would you indicate for the court, what

11 has been your career since the receipt of that doctorate

12 degree in 1965?

13 A. Yes. I -- I taught for one year at Mankato

14 State University in Mankato, Minnesota.

15 Q. What area?

16 A. I taught analytical chemistry, instrumental

17 analysis, clinical chemistry and conducted and directed

18 research with undergraduates and graduate students. I

19 then moved to a private liberal arts college in St.

20 Peter, Minnesota, Gustavus Adolphus College, and there I

21 taught for 13 and a half years in the same area,

22 analytical chemistry, instrumental analysis, began

23 teaching courses in developing expertise in the area of

24 criminalistics and forensic science. I was in Gustavus

25 until 1979. The last three years I was chairman of the

 

923

1 chemistry department. I left, on a leave of absence,

2 Gustavus in the fall of 1979.

3 Q. Where did you go then?

4 A. I went to the crime laboratory for the state

5 of Minnesota, and in the first six months there I

6 participated in every section of the laboratory

7 evaluating evidence, looking at methods of analysis,

8 evaluating those dealing with evidence and conducted

9 specific research in the areas of serology and evidential

10 breath testing. After six months there I was asked to

11 remain as a temporary supervisor of the alcohol testing

12 section, and that's the section that tests for alcohol in

13 all substances except breath. It would be -- that would

14 be blood, spinal fluid, vitreous humor, other

15 physiological fluids. After remaining in that position

16 for six months, I resigned my collegiate position at

17 Gustavus, applied for and was given one of the positions

18 of assistant director of the crime lab for the state of

19 Minnesota and coordinated the chemical testing program

20 for the state of Minnesota.

21 Q. And when did you receive that appointment to

22 be the, what was it, assistant director of the Minnesota

23 crime lab?

24 A. That's correct. And that was in the fall of

25 1980. It was a year after I came to the crime lab.

 

924

1 Q. And in the overall hierarchy of the state of

2 Minnesota crime lab, what was the -- what was the

3 position that you had? How would that fit into that

4 hierarchy?

5 A. It was number two position. I was

6 responsible to the director of the laboratory, and I

7 shared that number two position. By the way, there

8 was -- I was the assistant director as related to the

9 chemistry side of the laboratory, and another gentleman,

10 whom I knew quite well, was the assistant director

11 related to the biological side of the laboratory. My

12 specific duties were the day-to-day operations and the

13 analysis of evidence and procedures of analysis in the

14 areas of alcohol testing, breath testing, chemistry which

15 dealt with arson, fire debris and other chemical

16 substances and drug testing, also included toxicology, of

17 course.

18 Q. And for how long a period of time did you

19 hold that position with the state of Minnesota

20 criminalistics laboratory?

21 A. I was there for four years.

22 Q. And during that four years, did you spend --

23 describe for us the amount or portion of your time that

24 you spent, work time spent dealing with blood-alcohol or

25 alcohol related issues?

 

925

1 A. I spent the majority of my time with alcohol

2 related issues. At the time that I was there we had some

3 changes in breath-alcohol instruments. We were

4 continuing research in the areas of breath- and blood-

5 alcohol. My -- my -- sorry, my supervisory position in

6 blood-alcohol, continued my work there in training

7 individual analysts in the techniques of the analytical

8 measurement itself, was required to conduct experiments,

9 determinations when special needs would come up. I

10 remember some in the blood-alcohol area where we were

11 getting some spurious results in our analyses, and we

12 needed to determine what that was, and I took a hands-on

13 approach in all of those types of situations and

14 functions.

15 Q. When in 1984 had you -- by the end of 1984

16 approximately how much -- many years of your professional

17 career would you have spent by that time in working with

18 alcohol blood analysis?

19 A. About five years. Of course, it goes back

20 further than that if you want to talk about the

21 techniques of blood analysis, because those, of course,

22 were ones that I learned as an undergraduate and graduate

23 student and applied, but not specifically with blood-

24 alcohol.

25 Q. When you left the laboratory in 1984, would

 

926

1 you indicate to the court then where you went?

2 A. I went to a private laboratory in Boulder,

3 Colorado, called ChemaTox Laboratory, and there I

4 continued my work in alcohol and drug testing for the

5 Colorado Highway Patrol and other law enforcement

6 agencies, hands-on analyzing samples, testifying as to

7 the interpretation of a test result.

8 Q. And for how long did you remain in Colorado

9 in that position?

10 A. That was a brief period of time. That was

11 only four months.

12 Q. Okay. And then where did you go?

13 A. I returned to the Twin Cities of Minneapolis/

14 St. Paul, and I started my own organization, Forensic

15 Associates. I was the sole employee at that time. I was

16 also the director of forensic toxicology at Metropolitan

17 Medical Center. I was in charge of those procedures in

18 alcohol and drug analysis that would eventually go to

19 court. I continued with Forensic Associates, continued

20 with Metropolitan Medical Center until it was bought by

21 ChemaTox Laboratories, and then I continued on my work as

22 director of forensic toxicology with ChemaTox doing the

23 same thing, and there it was just a position where it

24 only dealt with those cases that eventually went to

25 court. I have reduced my work with ChemaTox

 

927

1 Laboratories. I used to train people in alcohol testing

2 for the Department of Transportation, programs through

3 them; the Nuclear Power Plant, programs through them; and

4 now I am just director of alcohol toxicology because

5 that's all my time will allow.

6 Q. What is ChemaTox?

7 A. ChemaTox Laboratory is a private laboratory

8 in Boulder, Colorado. Medtox Laboratory is a private

9 laboratory in St. Paul, Minnesota.

10 Q. Which of those two are you now associated

11 with?

12 A. Medtox Laboratories.

13 Q. Is that doing the continuation of the same

14 type of work that you started doing back in 1984?

15 A. Only -- only from the standpoint that I do

16 not do any more hands-on work. I do not do the analyses.

17 Q. Now, what, if anything, have you done as far

18 as keeping abreast of the professional academic

19 literature in the field of blood-alcohol analysis?

20 A. I try to keep track of all of the academic

21 literature as it relates to that. That is the peer-

22 reviewed academic literature, that which is published by

23 scientists in the field. I review publications on a

24 regular basis from a variety of sources, libraries,

25 government agencies, and I collect those publications and

 

928

1 keep them for future reference.

2 Q. What have you done in recent years, if

3 anything, regarding providing continuing education for

4 people in law enforcement or in the legal community

5 relative to blood-alcohol issues?

6 A. I've given a wide variety of lectures to both

7 professionals, that is scientific professionals, lawyers,

8 judges, as related to the interpretation and the testing

9 of blood for alcohol and drugs and other substances for

10 alcohol.

11 Q. And have you ever had occasion to give

12 seminars or presentations to governmental agencies who

13 are concerned with the -- their testing procedures and

14 the -- the legitimate and illegitimate conclusions that

15 may be drawn from those?

16 A. I have. We have government agencies that

17 attend those seminars. It's been a long time since I've

18 done one specifically for government agencies, of course.

19 Q. Have you on a continual basis involved

20 yourself in keeping abreast of the literature since 1979

21 in the blood-alcohol -- on those issues?

22 A. Yes, indeed.

23 Q. And have you done that basic -- has that

24 been basically your focus of your career in those last

25 17 years?

 

929

1 A. Absolutely. It's been the absolute focus

2 we -- myself and my associates who have come on board

3 deal in some cases with the effects of drugs, the

4 measurements of drugs and the effects on the human body,

5 but that's a very small percentage of what we do. Most

6 of the work that we do relates to alcohol.

7 Q. Do you have the ability to, in a succinct,

8 lucid manner, attempt to describe for this record what

9 happens when a human being consumes alcohol, how -- what

10 is the general process?

11 A. I can do that. I can do that very simply.

12 Q. Would you do that?

13 A. Yes. There are three processes that must be

14 considered when that occurs. Normally what we do with

15 human beings is we ingest the alcoholic beverage orally,

16 although generally a diluted alcoholic beverage. When I

17 talk about alcohol, I mean ethyl alcohol, which is what

18 is found in most spirits that are consumed. That goes

19 into the stomach, and it stays, that beverage stays in

20 the stomach for a period of time. A small amount is

21 absorbed through the walls of the stomach into the --

22 into the blood system, but that's only about 5 to 7

23 percent of the total amount consumed.

24 Q. Let me ask you. If prior to the alcohol

25 going into the bloodstream from the stomach, does alcohol

 

930

1 have any influence or effect on an individual? Can it

2 have any until it gets into the bloodstream?

3 A. Not at all. As a matter of fact, it has to

4 be transported by the bloodstream. Once it gets there,

5 it has to be transported to the brain to have any

6 detrimental effect, but alcohol in the stomach has

7 absolutely no effect on an individual as it relates to

8 any measurable quantity or function.

9 Q. And I believe you just indicated that a

10 small, maybe 5 to 7 percent of alcohol in the stomach --

11 tell us what happens to that 5 to 7 percent.

12 A. That passes through the walls of the stomach

13 and gets directly into the bloodstream. The remainder of

14 the alcoholic beverage along with the stomach contents

15 passes through the pylorus valve into the small

16 intestine, and there it's rapidly absorbed into the

17 bloodstream. The bloodstream carries the alcohol, the

18 ethyl alcohol then unchanged through the system. It goes

19 to the liver. Then it goes to the heart. Then it goes

20 to the lungs. Then it goes back to the heart. Then it

21 goes out to the extremities.

22 Q. Let me -- I'll go back a minute if I can.

23 When it goes from the stomach through the pylorus valve?

24 A. That's correct.

25 Q. Does that do that all at one time, or what --

 

931

1 what happens? How does that occur?

2 A. The pylorus valve is a sphincter valve which

3 opens on occasion and allows the contents of the stomach

4 to go into the small intestine, and what occurs is that

5 it's a plug of material from the stomach passes through

6 the pylorus into the small intestine, and then the

7 pylorus closes. When that material is dealt with by the

8 small intestine, then more of the stomach contents --

9 Q. Can you wait just a minute.

10 (At which time a brief pause was taken.)

11 A. More of the contents then pass into the small

12 intestine.

13 Q. And does it warrant, when the contents go

14 from the stomach to the intestine, that that is where

15 that remaining 93, 95 percent is ultimately then absorbed

16 into the bloodstream?

17 A. That's absolutely correct. When we talk

18 about absorption, we talk about the rate of absorption,

19 and that is the time that it takes to go from the time

20 you finish your last drink until you reach a maximum

21 blood-alcohol concentration, and that's exceedingly

22 variable.

23 Q. And if a person's -- does not have that

24 absorption into the blood and then the blood ultimately

25 to the brain, does that -- is there any consequence to

 

932

1 the alcohol in the person's stomach?

2 A. No. It could serve as a irritant to the

3 stomach lining, but in terms of affecting the

4 individual's behavior, no.

5 Q. Okay. Now, would you indicate, has there

6 been any significant amount of research, investigation,

7 articles written, books written on absorption of alcohol

8 into the body?

9 A. Yes. .

10 Q. And is that a phenomenon -- for how long

11 historically has that been studied?

12 A. It was studied -- that phenomenon, in fact,

13 alcohol is the most studied drug in the world for the

14 longest time and with the highest number of articles.

15 The rate of absorption has been studied over and over and

16 over again in an attempt to try to pinpoint the time at

17 which it takes to go from the finishing your last drink

18 to maximum blood-alcohol concentration.

19 Q. Okay. Now, do you have, or have you brought

20 any what would be demonstrative aids that may be of

21 assistance in your testimony to explain the absorption

22 rate?

23 A. Yes. I have -- I have two. I have one that

24 simply describes the entire process. Both explain the

25 entire process; one for demonstrative purposes and one of

 

933

1 an actual individual.

2 Q. Would you want to show those -- let me hand

3 those -- I can show them to Mr. Wadding and see -- see if

4 he has any immediate reaction. (Complied.)

5 MR. CORRELL: I'm not going to offer these as

6 evidence, but -- they're for demonstrative purposes.

7 Q. I'm going to hand you, sir --

8 MR. CORRELL: I think I'll ask our reporter

9 to mark it so it will be referred to in the record.

10 (At which time Defendant's Exhibits "5" and

11 "6" were marked for identification.)

12 Q. I'm going to set behind you, Dr. Jensen, what

13 the reporter has marked for us as Defendant's Exhibit

14 "5". Let me first ask you, is that an exhibit that you

15 have caused to be prepared?

16 A. Yes.

17 Q. And would you indicate, what is the goal of

18 that exhibit?

19 A. The goal of this exhibit is simply to give an

20 illustrative example as to the processes that occur when

21 an individual consumes alcoholic beverages as related to

22 the rate and change of blood-alcohol concentration as a

23 function of time.

24 Q. And what, if anything, does Exhibit "5" have

25 to do with this phrase, absorption?

 

934

1 A. What it does is that it shows the area that

2 has not been labeled. It shows the area which is known

3 as absorption, and that's the first part of the curve.

4 Q. Is -- I suppose we've all heard the term

5 absorption as used not in a scientific way but just in

6 our everyday understanding. What correlation does the

7 term, in your area of analysis, how does that compare to

8 just the general understanding of the term?

9 A. The general understanding of the term is very

10 close to what we talk about in terms of absorption, and

11 that is alcohol is absorbed into the bloodstream

12 unchanged. There is no chemical reaction. It simply is

13 absorbed into the bloodstream and then moved by the

14 bloodstream. It's the very common definition of

15 absorption.

16 Q. And for the purposes of blood-alcohol

17 analysis, by the term absorption, what are you attempting

18 to define?

19 A. Only that time period. When you talk about

20 absorption, you must talk about a rate of absorption, and

21 that's the time period it takes from the time you finish

22 your last drink until the time you reach maximum blood-

23 alcohol concentration.

24 Q. And would you -- by turning and standing and

25 perhaps using the pointer, would you make reference to

 

935

1 Exhibit "5," please. Tell us what line on -- going up

2 and down and the line on the bottom show?

3 A. This -- this shows blood-alcohol

4 concentration in the normal units that are used on the --

5 on the -- that axis. On the horizontal axis is time.

6 Just in arbitrary units, they are minutes, but, of

7 course, the time in and of itself absolutely doesn't mean

8 anything. That's -- it's immaterial to any discussion

9 except to show that's a time line.

10 Q. Okay. Now, the one that I guess is the

11 vertical, that would purport to show what again?

12 A. Blood-alcohol concentration.

13 Q. And down at the right angle where those two

14 meet, that's where that curve starts; is that correct?

15 A. Starts here. There's no alcohol consumption

16 and a zero blood-alcohol concentration.

17 Q. And would you explain what is happening when

18 that curve is going up?

19 A. Excuse me. That's absorption. And this

20 is -- as I said, this is a free-hand idealized curve in

21 which one -- it shows that the alcohol concentration

22 rises until one finishes their last drink. Then there's

23 continued absorption for a period of time through this

24 region and going past the maximum as a matter of fact.

25 The alcohol distributes itself through all the water

 

936

1 tissues of the body, and even though the body is capable

2 of eliminating alcohol from the time we start consuming

3 it, once it's all absorbed, we see the effect of

4 elimination, and that is this part of the curve right

5 here. So the curve attempts to show, in a manner that's

6 not related to any specific individual, that the

7 absorption rate is much more rapid than the rate of

8 elimination, that once achieved we see the effect of the

9 rates of elimination.

10 Q. Okay. Now, could you set that down, and I

11 think up there is Exhibit "6". And I would again ask

12 you, is -- Exhibit "6" is an exhibit that you prepared,

13 sir?

14 A. I did. I took this from an Australian D.O.T.

15 Study, Department of Transportation study as an example

16 of an individual.

17 Q. Okay. And what -- how do you refer to that

18 Exhibit "6"?

19 A. This is also a blood-alcohol curve of a

20 specific individual.

21 Q. Okay. And the first one was just more or

22 less a visual aid to show how it would be generally, not

23 related to any specific individual or specific set of

24 circumstances?

25 A. Absolutely correct.

 

937

1 Q. Okay. Now, on the Exhibit "6," does -- at

2 the bottom of that horizontal line, is that -- again, is

3 that divided into the time line?

4 A. That's correct. This is the same axis we saw

5 on the previous exhibit, both the concentration axis and

6 the time axis.

7 Q. It's obviously, when we look at "5" as

8 opposed to "6," Exhibit "5" is a smooth curve. Exhibit

9 "6" seems to have some irregular movement in it. Would

10 you explain why that is?

11 MR. WADDING: Your Honor, I'm going to object

12 at this point to testimony with reference to this exhibit

13 as being -- not being relevant. As Mr. Jensen has

14 indicated, it is a specific individual, you know,

15 obviously somebody from Australia, not relevant to this

16 situation or this defendant in particular, and I don't

17 think it would be relevant.

18 COURT: Overruled. You may answer.

19 A. Each of the points are specific measured

20 blood-alcohol concentrations that appear on this chart.

21 And the purpose of this graph compared to the first one

22 is to show the individual variations, being quite broad

23 in boast, the absorption part of the curve up to here and

24 continuing in the elimination part of the curve. These

25 particular portions that we see in which it goes up and

 

938

1 comes down on the absorption side is a process called

2 steepling. Here we see it, and here we see it where the

3 pylorus valve opens, allows the food and stomach contents

4 to go into the small intestine, the alcohol is rapidly

5 absorbed. Then we see an increase in concentration. If

6 no other food content or stomach content go into the

7 small intestine which contain alcohol, then it goes back

8 down. The purpose of showing this individual curve is to

9 show that an individual, any individual, this one in

10 particular, does not have a smooth curve as it relates to

11 alcohol absorption and elimination.

12 Q. And is that Exhibit "6," does that replicate

13 a -- the actual grafting -- or graphing of the test as it

14 appeared in scientific literature?

15 A. Absolutely. It's exactly what it was. I

16 took it directly from that.

17 Q. And those various, I guess what I would call

18 dots or periods where it goes to a line and then there's

19 a period, what do those represent?

20 A. That's the actual measured concentration.

21 Every time you see a dot, that was what created the curve

22 because it was measured -- a sample was taken from the

23 individual and analyzed to determine that concentration.

24 Q. Okay. And in -- in that situation, can

25 you -- is it demonstrated by Exhibit "6," can you tell us

 

939

1 what that generally shows in lay language, not scientific

2 language, but lay language?

3 A. What this shows is that anybody's alcohol

4 curve is irregular. We see this in individual curves

5 when measured as a function of time with multiple points

6 as opposed to measuring one point. We see quite a

7 variation in the -- particularly in the absorption side

8 of the curve, and we see also variation in the

9 elimination side of the curve. And that's the purpose of

10 this is to show that it's not just a smooth line.

11 Q. And in -- in that, and I realize that is just

12 one individual example, but in that example, for how long

13 a period of time is a person continuing to absorb alcohol

14 into their blood after they have finished their last

15 drink?

16 A. The rate of absorption is exceedingly

17 variable.

18 Q. But in this one, does it show in this one?

19 A. In this particular case it took just over two

20 hours for the individual to reach maximum blood-alcohol

21 concentration. Now, the fault with that is that I can't

22 tell you where the individual stopped for sure, so it's

23 something less than two hours. They stopped consuming

24 the -- this one -- this Australian rugby player consumed

25 Boston Lager beer.

 

Santamaria, J. N., Ethanol ingestion studies, Department of Community Medicine, St. Vincent's Hospital, Fitzroy, Australia Department of Transport, Office of Road Safety, 1979.

940

1 Q. Now, is the literature where there have been

2 independent tests, do those tests confirm that the

3 absorption rate can go on for how long a period of time

4 after the last drink is consumed?

5 A. It can go on for quite some time. There

6 is --

7 Q. And -- what would be towards the longer

8 range?

9 A. Well, the longest we've seen is about six

10 hours. That's an extreme situation in which an

11 individual consumed alcoholic beverages on a meal of

12 three pounds of potatoes. It took that long for the

13 alcohol to be absorbed and reach maximum blood-alcohol

14 concentration, but is not unusual to find the time that

15 it takes the blood-alcohol concentration to reach its

16 maximum to reach levels of an hour to two hours.

17 Q. Okay. And is that recognized in the

18 literature?

19 A. It's recognized all over the literature.

20 Every study shows that there is an extreme variable.

21 Some of the studies show 30 to 60 minutes is the time.

22 Some studies show 15 minutes to two hours or more is the

23 time of absorption. Some show 60 minutes to 90 minutes.

24 What they have in common is that it's all about an hour

25 for the rate of absorption. That is from the time you

 

941

1 finish your last drink until you reach your maximum

2 blood-alcohol concentration is about -- is about an hour

3 simply because of the variables that are involved in that

4 physiological process.

5 Q. Now, does a person have -- one individual

6 person, speaking of those variables, will they always

7 absorb at the same rate, or is that unique to the person,

8 or is it unique to the circumstances?

9 A. It's unique to the circumstances and the

10 person as a matter of fact, but it's more unique to the

11 circumstances.

12 Q. So we can't test one individual and say

13 individual A has a specific absorption rate and we will

14 know that that will be in place anytime, anyplace? That

15 wouldn't be right, would it?

16 A. Can't be right. There's no way that that can

17 be replicated. We can come close to replicating the

18 elimination rate, but we can't even come close in

19 replicating the absorption rate.

20 Q. Knowing that, as you have indicated, that

21 there are variables in this absorption rate, do you have

22 an opinion as to what those variables are that can cause

23 and affect the absorption rate?

24 A. Yes.

25 Q. Would you indicate what those variables are?

 

942

1 A. There are a whole variety of them, but the

2 most important ones are food, that is the amount and type

3 of food in an individual's stomach, the type of alcoholic

4 beverage consumed, the state of the individual's health,

5 particularly as it relates to their stomach, the rate, of

6 course, at which they consume the alcoholic beverage

7 since it cannot be absorbed any faster than it's

8 consumed, and what's most important than anything else is

9 the stress that an individual's under. All of those

10 things are variable. Those are the major factors to be

11 considered. There are others including medications, et

12 cetera. Those can't be replicated from one drinking

13 session to another, and that's why the rate of alcohol

14 absorption is different in an individual from time to

15 time.

16 Q. Okay. And as far as the -- on the issue of

17 some of those and how they may affect, how is the -- how

18 does stress -- why does that have any impact?

19 A. We tend to keep things in our stomach longer

20 under stress is what the impact is, and that simply means

21 that the pylorus doesn't open. Oftentimes we'll be upset

22 with a rolling stomach. We can feel our stomach roll.

23 It's keeping food in it. Where other times after some

24 period of eating we can -- if we happen to -- to bring up

25 a little stomach gas, we can taste what we had for lunch

 

943

1 or for dinner, and that indicates it's still in our

2 stomach. And stress does that to us as human beings. We

3 tend to keep things in our stomach longer under stress.

4 Q. With regard to the situation of the rate of

5 consumption, how does that have any impact on this

6 absorption rate?

7 A. There are two things. One is that, of

8 course, if you consume an alcoholic beverage very, very

9 slow, then, of course, your rate of absorption can't be

10 any faster than the rate at which you consume it. The

11 other thing, however, is if you consume alcoholic

12 beverages relatively rapidly, we tend to keep those, the

13 beverage in our stomach for a longer period of time.

14 Q. With regard to, how is it that food in the

15 stomach can play a role, if any, in the absorption rate?

16 A. Food stays in the stomach to be processed,

17 and it has to be processed in the stomach before it's

18 passed on into the small intestine. And when you combine

19 alcohol with food, and particularly drinking with or

20 drinking on top of a meal, then because of the food you

21 tend to keep the beverages and the food in your stomach

22 longer. It just simply has to be processed before it

23 passes on.

24 Q. Okay. Now, you mentioned in your previous

25 testimony the elimination rate. Tell us what that is.

 

944

1 A. Elimination rate is, once we reach -- well,

2 once alcohol, I'm sorry, gets into the bloodstream, the

3 first place that it gets to is to the liver, and that's

4 the organ that detoxifies the body. We can eliminate

5 alcohol in the liver, and it's done by a chemical

6 reaction. That's a relatively set chemical reaction for

7 an individual depending upon their experience with

8 alcoholic beverages. People who are abusers of alcoholic

9 beverages eliminate alcohol more rapidly than, for

10 instance, a social drinker would. That stays the same

11 relatively speaking for an individual. There's some

12 variation, of course, from individual to individual. And

13 we get a little variation within an individual from time

14 to time. We can eliminate alcohol also by it coming out

15 on our breath, by coming out in perspiration. We also

16 lose it through the urine. But by far the most important

17 is the elimination that is done by the liver.

18 Q. Now, is there any elimination rate that is

19 generally recognized in the literature as opposed to the

20 absorption rate which has great variance?

21 A. Yes, there is.

22 Q. And would you explain that -- that rate?

23 A. That rate is determined, and it's an average

24 because all individuals are different. There's an

25 average rate, but it falls within ranges, and that

 

945

1 standard would eliminate at a rate of approximately .012-14

2 percent per hour, where a social drinker would be

3 approximately .015 percent per hour with a range between

4 .01 and .02. In an alcoholic or an abuser of alcoholic

5 beverages would eliminate at approximately -- I'm sorry,

6 at an average rate of .03 percent per hour with a range

7 on that also. So it depends upon your experience with

8 alcoholic beverages what your elimination rate is. It's

9 much more definable than the rates of absorption.

10 Q. Okay. And what would be the generally

11 accepted in the scientific community of the absorption

12 rates for a social drinker?

13 A. Absorption rates or elimination rate?

14 Q. Excuse me. I misspoke. I meant to say

15 elimination rate.

16 A. Generally speaking, we use .015 percent per

17 hour.

18 Q. Now, are you familiar with a procedure which

19 is utilized sometimes by some people called retrograde

20 extrapolation?

21 A. Yes, I am.

22 Q. And would you tell us, what is retrograde

23 extrapolation?

24 A. Yes. Can I use the graphic material?

25 Q. Please

 

946

1 A. The practice of retrograde extrapolation is

2 to only be applied to the elimination side of the curve

3 where one has a test value at a particular time and wants

4 to predict the blood-alcohol concentration at some time

5 prior. That process is done by assuming the elimination

6 rate of the individual and adding that to the value

7 measured to obtain the -- a blood-alcohol concentration

8 at some time prior. That's the way it's done in terms of

9 very simple practice.

10 Q. I'm going to hand to you, sir, what's been

11 marked as received into evidence as Defendant's Exhibit

12 "2". I'd like you to take a moment and familiarize

13 yourself with that.

14 A. (Complied.)

15 Q. Have you had an opportunity to do that?

16 A. Yes.

17 Q. Now, there is a -- what would appear to me to

18 be a formula on that. Do you recognize that formula?

19 A. Yes.

20 Q. And what formula is that? 15

21 A. That's a formula that's oftentimes used in an

22 attempt to retrograde extrapolate. It's an alcohol

23 concentration at a time two, which would be this time

24 right here, related to -- equaled to an alcohol

25 concentration, a time one, times the time period between

 

947

1 the two and the elimination rate, and that's exactly what

2 I just described.

3 Q. Is there any doubt in your mind that Exhibit

4 "2" is the retrograde extrapolation formula?

5 A. No doubt in my mind.

6 Q. What is the acceptance of retrograde

7 extrapolation in the scientific community?

8 A. It's rarely accepted in the scientific

9 community where you only have two time periods and a

10 single measurement.

11 Q. And why is that?

12 A. The reason's because there are far too many

13 variables in terms of the alcohol curve and the

14 parameters that come in relationship to the formation of

15 that alcohol curve. There are far too many things we

16 don't know about individuals in order for scientists to

17 be able to predict things at the level of -- of

18 reasonable doubt, and that's the problem we have with it.

19 Q. Has there been a significant amount of

20 literature and discussion in the scientific community

21 about the viability and reliability of retrograde

22 extrapolation?

23 A. There has been, yes. In fact, one author in

24 particular has been quite vocal about retrograde

25 extrapolation.

 

948

1 Q. And who is that author?

2 A. That would be Dr. Kurt Dubowski of the

3 College of Medicine, University of Oklahoma.

4 Q. And as far as the issue of that methodology

5 called retrograde extrapolation, would he be considered

6 the preeminent expert in the United States on that issue?

7 A. He's the preeminent author and researcher,

8 and he includes that, that's absolutely correct.

9 Q. Are you -- have you made yourself familiar

10 with his works over the years?

11 A. Yes.

12 Q. And have you, in fact, kept as part of your

13 library, your research library, have you maintained

14 professional articles that he has written on that very

15 issue?

16 A. Yes, I have.

17 Q. And do you have those articles with you

18 today?

19 A. Yes, I do.

20 Q. And could you make those available to

21 yourself?

22 A. (Complied.)

23 Q. Would you first make reference to the

24 article, the publication in which the article appeared?

25 A. The -- the first article which I have is

 

949

1 Alcohol Technical Reports in 1976 by Kurt M. Dubowski.

2 Q. And in that article of 1976, what conclusions

3 or what statements does he make regarding the

4 reliability, the reliability of retrograde extrapolation?

5 MR. WADDING: Well, I'm going to object, Your

6 Honor. It's obviously hearsay. He's not testifying to

7 his own opinions. He's testifying to another person's

8 opinion. If he wanted Mr. Dubowski here, he could

9 apparently have hired him to be here, because we know

10 he's still alive. This is simply hearsay.

11 COURT: Mr. Correll?

12 MR. CORRELL: Your Honor, the witness is

13 being asked to basically address the issue of the

14 research in the scientific community, which happens all

15 the time in courtrooms where individuals utilize and make

16 reference to identifiable authors and treatises.

17 COURT: I'll consider it, but why don't we

18 also take a short break here. We'll reconvene -- let's

19 meet back at 3 o'clock and start up again. Thank you.

20 (At which time a recess was taken at

21 3:00 p.m., May 21, 1997; and proceedings commenced at

22 3:15 p.m., May 21, 1997, with the court, counsel and

23 defendant present.)

24 COURT: I wasn't certain that Rule 803

25 allowed treatises in that manner on direct examination.

 

950

1 I've reviewed the rule. The objection is overruled.

2 MR. CORRELL: If I can just rephrase the

3 question? Is that agreeable with everyone?

4 COURT: Go ahead.

5 CONTINUED DIRECT EXAMINATION

6 BY MR. CORRELL:

7 Q. Dr. Jensen, would you indicate the names of

8 the three treatises authored by Dr. Dubowski that you

9 have in your possession here this afternoon?

10 A. A Human Pharmacokinetics of Ethanol. Roman

11 Numeral I. Peak Blood Concentrations and Elimination in

12 Male and Female Subjects is the first one published in

13 1976. The second one also published in 1976 in the

14 Journal of Forensic Sciences is called Breath-Alcohol

15 Analysis, Uses, Methods and Some Forensic Problems,

16 Review and Opinion, by Mason and Dubowski. And in 1985

17 by Dr. Dubowski in the Journal of Studies on Alcohol,

18 Absorption, Distribution and Elimination of Alcohol,

19 Highway Safety Aspects.

20 Q. With regard to those three articles, do you

21 consider those to be in generally accepted scientific

22 journals on the issue of blood-alcohol?

23 A. Yes, they are. They are also peer reviewed.

24 Q. Okay. And what is the consequence of peer

25 review? What does that phrase mean to us?

 

951

1 A. What that means is that they're published --

2 they are submitted to a panel of scientific peers, that

3 is people who are conducting research in the same area

4 and decided whether it's worthy of publication.

5 Q. Without going into each of those three

6 articles, what is the thrust of those articles by Dr.

7 Dubowski relative to the reliability of retrograde

8 extrapolation?

9 A. The thrust is that he refers to it as

10 speculative retrograde extrapolation, and the biggest

11 error involved in it among others is that it is unknown

12 an individual's state of absorption, whether they're

13 still absorbing alcohol or not.

14 Q. Do you agree or disagree with that conclusion

15 of Dr. Dubowski?

16 A. I agree with Dr. Dubowski's position as it

17 relates to matters that are criminal matters in

18 attempting to do retrograde extrapolation, yes.

19 Q. And is that because the result cannot be

20 relied upon?

21 A. It cannot be relied upon, or you have to make

22 so many assumptions that it may be applicable to other

23 matters in terms of making predictions but not where

24 you're looking at a specific number.

25 Q. The fact that the last of these articles is a

 

952

1 1985, does that mean anything relative to his present

2 position?

3 A. Simply means that he has maintained his

4 position in this. In fact, the transcripts of Dubowski

5 that I have indicates that he continues to testify in

6 this same manner.

7 Q. Okay. With regard to a situation, I'm going

8 to ask you some general questions, I'm going to ask you

9 to assume certain facts. If you don't understand those

10 facts, ask me to repeat them, will you, please?

11 A. All right.

12 Q. I would ask you to assume that Mr. Rokes had

13 three 12-ounce beers in his last hour of drinking. I'd

14 like you to assume that he finished the last of those

15 beers within ten minutes of an automobile accident.

16 Thirdly, I'd like you to assume that that automobile

17 accident occurred at approximately 10:58 p.m. Fourth,

18 I'd like you to assume that blood was withdrawn from him

19 at 12:28 a.m. Five, that the blood withdrawal was tested

20 by the Iowa criminalistic laboratory and determined to

21 have a blood-alcohol content of .087. Do you understand

22 the facts in that hypothetical?

23 A. Yes.

24 Q. Based on that hypothetical set of facts, do

25 you have an opinion as to whether Mr. Rokes' blood-

at he continues to testify in

 

953

1 alcohol was rising after the accident at 10:58 p.m.?

2 A. Yes, I do.

3 Q. And what is your opinion?

4 A. His blood-alcohol concentration was rising.

5 MR. WADDING: I guess, Your Honor, I'm going

6 to object and ask the objection precede the answer --

7 maybe perhaps I'm not understanding this correctly, but

8 this witness just testified that that type of assumption,

9 this type of opinion was unreliable in the literature

10 that he is aware of and -- and that being the opinion

11 means nothing and is irrelevant and immaterial.

12 COURT: You'll be able to test that on

13 cross-examination. The objection is overruled. Do you

14 have an opinion?

15 WITNESS: Yes, I do have an opinion.

16 COURT: Mr. Correll.

17 Q. And what is your opinion?

18 A. My opinion is that he -- because of the time

19 between the last consumption of alcoholic beverage and

20 the accident is the -- is a much less amount of time than

21 the most rapid absorption of alcohol that we see,

22 therefore, he is clearly absorbing alcohol at the time of

23 the accident and afterwards.

24 Q. Assuming that same set of facts, do you

25 have -- in your opinion, could the maximum blood-alcohol

 

954

1 level of Mr. Rokes have been .087?

2 A. Certainly could have been, yes.

3 Q. Again, assuming the same facts in that

4 hypothetical, in your opinion, can anyone determine what

5 the exact blood-alcohol level was of the person at the

6 time of the accident at 10:58?

7 A. No.

8 Q. And is that what would be the utilization of

9 the so-called formula, the retrograde formula that would

10 be used?

11 A. That's the application of that formula is not

12 applicable in this particular situation. I can show you

13 on this graph.

14 Q. Okay. Would you do that?

15 A. When an individual is still absorbing

16 alcohol, there's a very short period of time between the

17 last drink, and there's been rapid consumption up until

18 the last drink, means that one was still absorbing

19 alcohol. And if a blood sample is taken, for instance,

20 in this particular -- at this particular time and you

21 predict back to the time of an accident or some incident,

22 what you will do is that you will overestimate that

23 individual's blood-alcohol concentration because the only

24 thing that we know is that they're lower at some time

25 prior. Some of this consumption is very close to the

 

955

1 time of an incident or an accident, and retrograde

2 extrapolation fails completely.

3 Q. Okay. Thank you. Again, assuming the same

4 facts that I've given you in that hypothetical, Dr.

5 Jensen, do you have an opinion as to whether or not Mr.

6 Rokes' blood-alcohol level could have been as low as .05

7 at the time of the accident of 10:58?

8 A. Could have been.

9 Q. In your opinion, again, assuming the same

10 facts that I've given you in that hypothetical, in your

11 opinion, is it more probable that at 10:58 his

12 blood-alcohol level was less than .087?

13 MR. WADDING: I'm going to object, Your

14 Honor. That is leading. More probable. I think that

15 the answer is contained within the question, and it's

16 obviously leading.

17 COURT: Overruled.

18 A. Yes.

19 Q. Yes what?

20 A. His blood-alcohol concentration is more

21 probable less than zero-eight-seven than above

22 zero-eight-seven at the time of the accident.

23 MR. CORRELL: That's all the questions I have

24 of this witness at this time, Your Honor.

25 COURT: Mr. Wadding?

 

956

1 CROSS-EXAMINATION

2 BY MR. WADDING:

3 Q. You indicated that you currently work for

4 Forensic Associates; is that correct?

5 A. That's correct.

6 Q. And you're the owner of that company?

7 A. That's correct.

8 Q. And what is -- how would you -- do you have a

9 title?

10 A. I'm president.

11 Q. Okay. And then you're also owned by

12 somebody?

13 A. No.

14 Q. You're not owned by --

15 A. No. I'm not owned by anybody, no.

16 Q. And you -- currently your duties include

17 consulting and testifying; is that correct?

18 A. Absolutely correct. We do some training in

19 terms of breath testing and alcohol and drug testing as

20 related to the D.O.T., but most of the duties, most of

21 the duties are concerned with consulting with attorneys

22 or organizations and testifying, yes.

23 Q. Okay. And you describe that as being about

24 98 percent of what you do?

25 A. In terms of the active business of alcohol

 

957

1 and drug toxicology, yes. The rest of the time is simply

2 running a business.

3 Q. Didn't you tell me that 98 percent of your

4 time that you do consulting and testifying?

5 A. That's correct.

6 Q. Okay. So that would be just a yes --

7 A. That's a yes.

8 Q. -- is that correct? And are you indicating

9 that anybody who would engage in retrograde extrapolation

10 is just simply incorrect in doing so?

11 A. Well, if we have enough information, we can

12 certainly do it in terms of making an estimate, and I --

13 I've said that before, if we have enough information.

14 And if the information indicates we can't, then we can't,

15 and it shouldn't be done.

16 Q. And your Forensic Associates is engaged in

17 that as well, aren't they?

18 A. I don't know that we have. We have made

19 estimates of blood-alcohol concentration based upon

20 Widmark's formula.

21 Q. Now -- well, when you talk about -- do you

22 know Anne Rummel Manly?

23 A. Yes, I do.

24 Q. And is she employed with Forensic Associates?

25 A. Yes, she is.

 

958

1 Q. And she is formerly with the Minnesota

2 Division of Criminal Investigation or DCI; is that

3 correct?

4 A. She's with the BCA.

5 Q. She was with the BCA; is that correct?

6 A. That's correct.

7 Q. And now she's with your firm; is that

8 correct?

9 A. That's absolutely correct.

10 Q. Are you aware of her testimony with regard to

11 State of Iowa versus Merle E. Shatzer?

12 A. No.

13 Q. Do you know that she testified on --

14 MR. CORRELL: Excuse me, Your Honor. If he

15 is not familiar with the testimony, anything else is

16 irrelevant, and it's irrelevant because we don't know the

17 factual situation of that specific case.

18 COURT: He's allowed to finish his question.

19 Go ahead.

20 MR. WADDING: I withdraw it.

21 Q. Do you recognize her as an expert in the area

22 of alcohol -- alcohol elimination, absorption, use

23 alcohol?

24 A. Yes. In terms of alcohol toxicology, yes.

25Q. And do you -- are you aware that she has, in

 

959

1 fact, testified with respect to retrograde extrapolation?

2 A. I don't know what she has. I don't know that

3 she has. She may have done Widmark's, but I'm not aware

4 of it, no.

5 Q. Now --

6 MR. WADDING: May I approach, Your Honor?

7 COURT: You may.

8 Q. Does this --

9 MR. WADDING: Well, let me mark it.

10 MR. CORRELL: May I see the cover sheet of

11 that?

12 (At which time State's Exhibit "T" was marked

13 for identification.)

14 Q. I'm going to show you what's been marked as

15 State's Exhibit "T," marked for identification, and do

16 you recognize that as a transcript?

17 A. It appears to be a transcript. Certainly

18 it's not a certified copy, but I recognize it as

19 certainly a transcript.

20 Q. Okay. Now, it says down here that it's Beth

21 Wright, Certified Shorthand Reporter. You don't know who

22 that is, do you?

23 A. No, I don't.

24 Q. If I told you it was the woman sitting in

25 front of you, would you have any reason to doubt me?

 

960

1 A. I wouldn't doubt you.

2 Q. That's actually taking your testimony right

3 now?

4 A. That's fine.

5 Q. And does that indicate it's a transcript of

6 testimony of Anne Rummel Manly during jury trial of state

7 of Iowa versus Merle Shatzer?

8 A. That's what it says, that's correct.

9 Q. Okay. And I want to refer you to the --

10 to --

11 MR. CORRELL: Your Honor, I don't want to

12 interrupt him, but I want to interpose an objection that

13 I would like to have the opportunity to pose now at this

14 point in time.

15 COURT: Go ahead.

16 MR. CORRELL: Your Honor, we would object to

17 the effort to attempt to incorporate as evidently

18 impeachment type of testimony testimony given by another

19 party, not this witness. You cannot impeach somebody

20 with the statement of another individual, and there's

21 been no showing that this person has the foundational

22 prerequisites that are recognized in the rules of

23 evidence, and you cannot use the testimony of an

24 individual in another -- another individual in another

25 trial in an effort to impeach this witness. If he has

 

961

1 testimony from this witness, that is one thing, but it is

2 improper -- we have no record, and we would object to --

3 it's improper impeachment.

4 COURT: I'm not sure, Mr. Wadding, where

5 you're going with this or how you intend to use the

6 transcript. I'm not aware of any rule of evidence that

7 would allow it to be used in the manner in which I think

8 you're going to be using it. The other concern I have is

9 that -- that I presided over that trial, I'm the fact

10 finder in this case, and depending on how far you're

11 going to -- going to carry this, it begins to put me in a

12 difficult position too. I just want to make sure that an

13 issue isn't brought in that is going prejudice either

14 party.

15 MR. WADDING: Well, I'm -- then I'm not sure

16 what the court's alluding to. I'm simply asking if

17 anybody from his organization -- organization in which

18 he's the president of has engaged in retrograde

19 extrapolation. And I believe that he has indicated that

20 is not a -- a proper procedure to follow and that, in

21 fact, people from his own organization engage in the use

22 of retrograde extrapolation. And that's -- I think

23 that's an impeachment point. I think that I can use

24 that -- I think I can use any writing and that if the --

25 MR. CORRELL: May I see the front sheet

 

962

1 before you look --

2 MR. WADDING: No, not right now.

3 COURT: Mr. Wadding, Mr. Correll has a -- has

4 a right to see what you've already shown the witness and

5 the witness has reviewed already and you're asking him

6 questions about --

7 MR. WADDING: I don't have any problem with

8 him seeing it, Your Honor. I haven't been allowed to let

9 him testify off it yet.

10 COURT: Right. Well, I thought Mr. Correll

11 just asked to see the cover sheet of the document, and

12 you refused to allow him to see it.

13 MR. WADDING: Yes, I did. Is the court

14 ordering me to allow him to see it?

15 COURT: Yes.

16 MR. WADDING: All right. (Complied.) I

17 believe that the Rule of Evidence would include Rule 611,

18 also the use of authority under -- I think in general --

19 generally speaking in terms of the recognition of Ms.

20 Rummel Manly as an expert in that area and as well as an

21 employee of that firm.

22 COURT: Go ahead and ask your question, Mr.

23 Wadding.

 

963

1 CONTINUED CROSS-EXAMINATION

2 BY MR. WADDING:

3 Q. Well, isn't it true in state of Iowa versus

4 Merle E. Shatzer that Anne Rummel Manly considered

5 herself qualified in the area of retrograde

6 extrapolation?

7 A. I'd have to read it.

8 Q. I refer you to page 14, sir. The --

9 MR. CORRELL: Your Honor, if he's going to

10 take the time, he's been handed a document that consists

11 of approximately 50 pages, I'd like to have -- take a

12 break so the witness has an ample opportunity to examine

13 the document.

14 COURT: I think in fairness to the witness,

15 again, I'm not sure where you're going with it, Mr.

16 Wadding, or how far you intend to pursue it, but if

17 you're going to be asking this witness what that witness

18 was testifying to, I believe he's entitled to review the

19 document entirely before -- before giving any answers.

20 So we'll stand in recess until such time as the witness

21 has had an opportunity to review it.

22 WITNESS: Thank you, Your Honor.

23 COURT: Thank you. Please let me know when

24 you're ready to proceed.

25 (At which time a recess was taken at

 

964

1 3:28 p.m., May 21, 1997; and proceedings commenced at

2 3:40 p.m., May 21, 1997, with the court, counsel and

3 defendant present.)

4 COURT: Are we ready to go, Mr. Wadding?

5 MR. WADDING: Yes.

6 COURT: Mr. Correll?

7 Mr. CORRELL: Yes.

8 COURT: Mr. Wadding?

9 CONTINUED CROSS-EXAMINATION

10 BY MR. WADDING:

11 Q. Mr. Jensen, have you had an opportunity to

12 review that transcript then?

13 A. Yes, I have.

14 Q. And does Ms. Rummel Manly --

15 A. Ms. Manly, that's correct.

16 Q. -- engage in retrograde extrapolation?

17 A. She does do that for purposes --

18 MR. CORRELL: Excuse me. I'm going to make

19 the objection, Your Honor, first of all, I think it is

20 irrelevant what another individual testified about in

21 another case. That is not a recognized way to impeach

22 people. There's limited ways you can impeach people.

23 They're all spelled out the in Iowa Rules of Evidence,

24 and you cannot impeach somebody with the testimony given

25 by a third-party. It is irrelevant.

 

965

1 COURT: Sustained. It's not a proper method

2 of impeachment. You can call that witness as a rebuttal

3 witness if you feel that's appropriate, Mr. Wadding.

4 Q. During the break did you have an opportunity

5 to speak with Mr. Correll?

6 A. Yes.

7 Q. And is that in reference to review of this

8 transcript?

9 MR. CORRELL: Excuse me, Your Honor. I'm

10 going to object to that. This is the work product,

11 attorney/expert work product.

12 COURT: Overruled. You may answer.

13 A. Yes.

14 Q. And what was that in reference to?

15 A. He asked me what qualification, what her

16 degree was in.

17 Q. And her degree is in --

18 A. Chemistry.

19 Q. -- and biology?

20 A. And biology, that's correct.

21 Q. And there are persons that are involved in

22 alcohol and qualified -- can be qualified as experts that

23 engage in retrograde extrapolation; is that correct?

24 A. That is correct. People do engage in

25 retrograde extrapolation. That is absolutely correct.

 

966

1 Q. And have you -- we took your deposition on

2 May 9th, 1997; is that correct?

3 A. I believe that's correct, yes.

4 Q. And have you received any further -- further

5 information with reference to this case since May 9th of

6 1997?

7 A. Yes, I have.

8 Q. And what kind of information was that?

9 A. That was the information that was essentially

10 given to me in the hypothetical that Mr. Correll just

11 gave me.

12 Q. And you consider that to be a hypothetical?

13 A. Well, he gave it to me as a hypothetical. I

14 asked him -- we discussed this, of course, before here,

15 and asked him -- I asked him, of course, what the -- what

16 the alcohol consumption was, in particular the time of

17 the last drink is what I was most interested in.

18 Q. And when did you get that information?

19 A. I believe that was last night.

20 Q. So up until last night, you didn't have that

21 kind of information about the defendant's drinking or

22 anything of that nature?

23 A. I did not.

24 Q. So on May 9th I could not have made any

25 inquiry of it to you; is that correct?

 

967

1 A. That's correct.

2 Q. And the -- and on May 9th you had no opinion

3 as to whether or not the defendant was intoxicated; is

4 that correct?

5 A. That's correct.

6 Q. And do you agree that persons do exhibit

7 signs of impairment at .087?

8 A. Yes. People can. Yes. People can show that

9 that possibility clearly exists.

10 Q. Okay. And you would -- you would also agree

11 that alcohol is a central nervous system depressant?

12 A. Yes, I do.

13 Q. And when we say that, then it affects pretty

14 much all -- everything that we -- everything that we're

15 able to do; is that correct?

16 A. It --

17 MR. CORRELL: Excuse me, Your Honor. I

18 object to the form of the question. It's -- contains

19 multiple questions and ask that it be rephrased.

20 COURT: Did you understand the question?

21 WITNESS: I understood the question.

22 COURT: You may answer it.

23 A. It can affect almost all of our functions,

24 that's correct.

25 Q. Because it affects our brain?

 

968

1 A. That's correct.

2 Q. Okay. And, I mean, our brain pretty much

3 controls everything about us; is that correct?

4 A. That's absolutely right.

5 Q. So it can affect motor skills?

6 A. Yes.

7 Q. Affect vision?

8 A. Yes.

9 Q. Including clarity and peripheral vision?

10 A. That's correct.

11 Q. Can affect judgment?

12 A. Yes.

13 Q. Reason?

14 A. Yes.

15 Q. Perception?

16 A. Yes.

17 Q. And to sit there and describe someone as

18 being intoxicated, I mean, obviously you can't open up

19 their head and point to a particular area, correct?

20 A. That's correct.

21 Q. I mean, you'd have to interpret the factual

22 circumstances; is that fair to say?

23 A. That's fair, that that certainly would be

24 part of the input that we would need to have, I agree.

25 Q. And how much do you get paid for your

 

969

1 testimony?

2 A. We don't get paid anything for my testimony.

3 My time is $275.00 an hour.

4 Q. Okay. And is that what you're being paid

5 today?

6 A. That's correct.

7 Q. And how many hours so far did you accumulate?

8 A. I don't know. It's something over ten or

9 twelve hours, if I remember correctly.

10 Q. And that's inclusive of everything you've

11 done on this?

12 A. Up until last night, that's correct.

13 MR. WADDING: That's all the questions I

14 have. Thank you.

15 REDIRECT EXAMINATION

16 BY MR. CORRELL:

17 Q. Dr. Jensen, based on the hypothetical that I

18 gave you, is it your opinion that it is equally possible

19 that Mr. Rokes' blood-alcohol level was less than .087 at

20 the time of the accident?

21 A. Oh, yes, as I testified before.

22 Q. And with regard to the fact that some people

23 may have some influence of alcohol at .087, does that

24 mean that all people are -- have influence of alcohol at

25 that level?

 

970

1 A. No, not necessarily and not in the same way.

2 Q. Thank you.

3 MR. CORRELL: That's all.

4 COURT: Mr. Wadding?

5 RECROSS-EXAMINATION

6 BY MR. WADDING:

7 Q. We recognize influence of alcohol at lower

8 levels than that even; isn't that correct?

9 A. That's correct.

10 MR. CORRELL: Excuse me, Your Honor. I would

11 object to that. That is -- ask that my objection precede

12 the start of the witness' answer. That is an effort

13 apparently to allude to other state's different types of

14 testing for -- it's irrelevant.

15 COURT: That's not the way I understood the

16 question, but perhaps you could rephrase it, Mr. Wadding,

17 to make it more specific.

18 MR. WADDING: All right.

19 Q. Does alcohol affect you at lower levels than

20 .087?

21 A. It can, yes.

22 Q. And as low as a .05?

23 A. That's correct, depending upon certain

24 differences in an individual's experience with alcohol,

25 et cetera, it can, yes, that low.

 

971

1 Q. And, I mean, you know, that's what alcohol

2 does, doesn't it?

3 A. It affects you.

4 MR. WADDING: I don't have anything else.

5 Thanks.

6 MR. CORRELL: Nothing further.

7 COURT: Thank you.

8 WITNESS: Thank you, Your Honor. May I ask

9 you about these exhibits? Did you want those kept?

10 COURT: Ask Mr. Correll about that. They're

11 not entered into evidence in this case.

12 MR. CORRELL: I did not offer them. I used

13 them as demonstrative, and we do not need them.

14 COURT: Thank you. Take those with you.

15 WITNESS: Thank you, Your Honor.

16 COURT: Mr. Correll?

17 MR. CORRELL: Your Honor, at this time the

18 defendant rests.

19 COURT: Okay. Any rebuttal evidence, Mr.

20 Wadding?

21 MR. WADDING: No, Your Honor.

updated 12/22/16