ERRORS IN THE JUDGEMENT
TODD GEER'S DECISION
The state's witness, Michael Rehberg, of the DCI, testified that Rokes' BAC would have been no less than .087 plus or minus .004, (page 504 , line 21) "A. .004, or plus or minus 5 percent of the number, (line 22) whichever is smaller". Rehberg's opinion is based on the BAC test. Rehberg testified he believed Rokes' BAC was .115 or greater at the time of the crash (page 477, line 22 THE WITNESS: Yes, the opinion would be that the (Line) 23 person's alcohol level by the hypothetical you've (Line) 24 described would be at .115 or so at the 11:00 p.m. time.
Calvin Rayburn never stated Rokes' BAC was less than the standard deviation of plus or minus .004 when added or deleted to .087 BAC which would make the BAC .083/.091.
DeWayne Brasfield stated he believed
Rokes was intoxicated to Officer Michael at the scene, and also in
his report to the police. Page 71, Lines 20-5: Q. Did you make
any other observations about
their gait or their walk or anything like that? A. I -- I remember the wife trying to -- they were trying to hold each other up. I remember I smelled alcohol on her breath as well, and they were trying to hold each other up, and she kept telling him to shut up.
Officer Robert Michael testified he smelled alcohol on Tracy Rokes at the scene (page 107, lines 4-25).
Rokes stated to Martha Lamb, at the hospital, he was going 50
miles per hour (page 792, line 20).
Testimony of Martha Lamb.
Rokes was unable to account for all of his time. Rokes stated he got home about 5 p.m., however the witnesses at his house said he came home about 6 or 6:30 p.m. (Testimony of Tracey Braun Page 735, Lines 20-5: Q. With regard to observing Tracy Rokes in the home, first of all, about what time do you think it would have been that he got there?; A. I would say maybe around 6 o'clock or so.) (Testimony of Scott Braun Page 717; Q. What time would it have been approximately when you arrived over at the Rokes home on Friday October 4, 1996? Page 718, Lines 1-2: A. About 6 -- 5:30, 6 o'clock; Q. And would have you gone over to that home.)
No field sobriety tests were done because Rokes has a slight head injury. Testimony of Officer Robert Anderson--Page 142, Lines 14-24: Q. Did you perform any standard field sobriety tests on him?; A. No, sir, I did not.; Q. And why not?; A. In my -- we normally do three standard sobriety tests, one being -- the first one is the horizontal gaze nystagmus. With him having one eye covered, I didn't feel that was appropriate. Also with the activity in the emergency room at that time and with him being just in an accident, I didn't feel that the tests should be performed. Page 141, Line 6-21: Q. Did you make any other observations about his person?; A. He -- just basically, I mean, sitting there he seemed to be consoling his wife at the time. I just noticed there was a real strong odor of an alcoholic beverage coming from his person.
Officer Todd Wilson did not speak with the defendant until approximately 1:00 a.m., nearly two hours after the crash. He noticed evidence of alcohol, blood shot watery eyes, etc. Page 318, Lines 23-5, Page 319, Lines 1-12: Q. And at the time that -- at the time that you had contact with the defendant at the hospital, did you form any opinion at all about his state of intoxication?, A. Did I form an opinion?, Q. Yeah., A. It's like I said to Mr. Correll, I didn't --I really didn't -- you know, I observed the signs of alcohol, the red, watery eyes and so forth, but it wasn't my job to specifically target -- not target. That's a bad word. It wasn't my job to investigate Mr. Rokes' sobriety.; Q. And if you -- if it -- if it were your position, do you think you would have gotten to him a little earlier than 1 o'clock in the morning?; A. Well, sure. Sure, I would have.
David Zarifis spent about 3 minutes with
the defendant and he made no determination about Rokes' condition.
Page 784, Lines 7-16: Q. So you didn't form an opinion that he was
intoxicated or wasn't intoxicated?; A. That's correct, I didn't; Q.
How long would you say that you spent with the defendant?; A. At the
most maybe three minutes; Q. And is that the extent of the
conversation that you've just testified to, I'm okay, how are the
people in the other car?; A. Pretty much, yes.
All of Rokes' witness friends has been drinking that evening with him. Deposition of Tracey Braun Page 17, Line 20-5: Q. Okay. Did either of you have anything alcoholic to drink? A. Yes. I believe we were drinking. We each had a beer. Q. Connie, yourself and Delonna? A. Yes. Page 23, Line 13-21: Q. Okay. Was everybody drinking some sort of alcoholic beverage, from what you could observe? A. I believe so. Q. All right. Do you recall what people were drinking? Start with the gals. A. I believe all of the girls had beer, but I'm not positive on that. Q. All right. And that would have been Delonna, Lisa Bradford, Connie Young? A. Yes.
Judge Geer did not include any testimony of Amy Abels, Jennifer Girsch, and Emily Brasfield.
Defendant Rokes told many different stories about the lights and
the crash to eight different people.
(1) 10-4/5-96 11:05 p.m. Officer Michael at scene, Rokes stated "I didn't see flashing red light because I was consoling my wife";
(2) 10/5/96 1:00 am to Officers Wilson and Venenga "I thought I had a green light";
(3) 10/5/96 8-9:00 a.m. told Scott Braun, "I thought I had a green light."
(4) 10/5/96 at between 10:00 am and 11:00 am to Tracey Braun thought he had a "blinking or flashing light".
(5) 10/5/96 7:54 p.m. CFPD (Wilson) in a signed police report his statement was "saw east west traffic light was green, thought I had sufficient time to proceed, said I was going 40-45 mph,
(6) Told hospital nurse, Martha Lamb he was going 50 mph.
(7) 5/21/1997 "didn't see the light because I was turned and didn't see the road" (Tracy Rokes);
(8) 5/21/97 "didn't know--didn't see the light" (criminal trial)
(9) 11/10/98 deposition "saw the red light go off and did not see the green light. Didn't see a green light. Was driving near the speed limit."
(10) There is a difference between 40 and 45 and 50, however, all are at or near the speed limit.
Richard E. Jensen, expert witness for the defense misused the research he testified to as being relevant. Three of the four journal articles were not peer reviewed. The research he based his conclusions on was NOT PEER REVIEWED, was not based on blood alcohol research , and he misconstrued the information contained in "Ethanol Ingestion Studies" by Joseph Santamaria, MD to his client's advantage. The Santamaria study was not peer reviewed.
Richard Jensen's contention that Rokes' BAC could have been as low
as .06, had it been that low at 11:00 p.m., how could it become .087
one and a half hours later? The only way for this to happen is to
ADD more alcohol to Rokes' body.
Richard E, Jenses Criminal Trial Deposition
Richard E. Jensen Criminal Trial Testimony
"For some unexplained, and physiologically improbable reason, the alcohol ingested during the evening remained unabso ffic offense, and in this connection is arrested for DUI. The defendant then claims that between the time of being apprehended and the time of taking the blood or breath-alcohol test, the alcohol in the stomach has become absorbed into the blood bringing the person over the legal limit.
"Obviously, this scenario is unreasonable because alcohol, unlike many other drugs, starts to become absorbed from the stomach immediately following ingestion. Gastric emptying accelerates this process and leads to a rapid onset of the effects of alcohol on the brain. Indeed, people indulge in drinking primarily to experience alcohol's enjoyable pharmacological effects such as euphoria, relaxation and diminished social inhibitions. In order for this to happen, the alcohol must become absorbed into the blood and transported to the brain. The intoxicating effects of alcohol are more pronounced during the rising limb of the BAC profile, and people would surely be surprised if they had been consuming drinks for several hours without experiencing any effect! Unfortunately, only a handful of studies have looked at the pharmacokinetics of alcohol under real world drinking conditions to establish, for a large number of subjects, the degree of rise in BAC and the time needed to reach the peak after the last drink, Jones, A. W.; "DUI defenses"; In: Steven B. Karch, Ed.; Drug Abuse Handbook, CRC Press, 1998, 1138p.