Mata v. State
| Decision Date | 06 June 2001 |
| Docket Number | No. 133-00,133-00 |
| Parties | (Tex.Crim.App. 2001) RAUL MATA, Appellant v. THE STATE OF TEXAS |
| Court | Texas Court of Criminal Appeals |
At Raul Mata's trial for driving while intoxicated, an expert witness testified that Mata's blood alcohol content two hours after his arrest showed that he was intoxicated at the time of his arrest. We must decide whether this expert's testimony met the requirements of Daubert v. Merrell Dow Pharmaceuticals, Inc.,1 and Kelly v. State.2 We conclude that it did not.
Officer Kenneth Thompson pulled Mata over at 3:05 a.m. on May 25, 1992, for a traffic violation. He smelled alcohol on Mata's breath, so he asked Mata to perform some field sobriety tests. After the tests, Officer Thompson arrested Mata for driving while intoxicated. Over two hours later, at 5:14 a.m., Mata took two breath tests in quick succession and registered a blood alcohol content (BAC) of .19.
The State charged Mata with driving while intoxicated both by driving with a BAC in excess of .10 and by driving without the normal use of his mental and physical faculties.
Mata filed a motion to suppress the results of his breath test because, among other reasons, they were obtained "from scientific techniques which have not been shown by clear and convincing evidence to be reliable and relevant." He relied on Rules 403 and 702 of the Texas Rules of Criminal Evidence - the applicable rules at the time of Mata's 1993 trial.
At the suppression hearing, George Allen McDougall, Jr., testified that he was the breath test technical supervisor for Bexar County. He explained that an individual's BAC is reflected by an alcohol concentration curve which begins at the low point when there is no alcohol in the person's blood and rises as the alcohol is absorbed into the bloodstream until it reaches the peak, that is, the maximum alcohol concentration. Then the curve falls as the alcohol dissipates from the bloodstream to the low point when there is no alcohol left. McDougall testified that he had "done some calculations like this on his own" and that to draw such a curve for an individual, he would need "more than a couple" of reference points. He would need "a lot of them." McDougall conceded that, although Mata blew into the breathalyzer twice, the readings were only two minutes apart and, for purposes of drawing an alcohol concentration curve, constituted only a single reading. That single reading did not give McDougall enough information to determine whether Mata was in the absorption phase or the elimination phase at the time of the breath test.
McDougall testified that, in order to determine an individual's BAC at the time the individual was driving, he "assume[s] several variables." He testified to several possibilities: the individual could have had a higher BAC at the time he was driving than at the time of the breath test; the individual could have had a lower BAC at the time he was driving than at the time of the breath test; or the individual could have the same BAC at both times. McDougall testified that he determines how high the BAC could have possibly been and how low it could have possibly been. Then "between those two somewhere is where the actual value will be."
McDougall agreed that the alcohol concentration curve of an individual who drank on an empty stomach would rise higher and faster than the curve of an individual who drank on a full stomach. He conceded that without a number of tests, and without knowing an individual's weight and whether he had eaten anything, he could not determine the steepness of that individual's alcohol concentration curve. He testified that, regardless of what the person had in his stomach, "an hour and a half is adequate for a complete absorption of the drinks."3 He testified that alcohol eliminates at a rate of .02 grams per 210 liters.4
When given a hypothetical case based on the facts of this case, McDougall testified that if an individual's breath test registered .19 two hours and nine minutes after that person had been driving, McDougall would say that the person had a higher BAC at the time of the test than at the time of the driving. He also testified that, nevertheless, based on those facts, he would believe the person was intoxicated at the time of the driving.
McDougall testified that, given Mata's BAC of .19 two hours after his arrest, he believed Mata was impaired at the time of driving and had lost the normal use of his mental or physical faculties at the time he was driving. But he emphasized that he was not saying that Mata's BAC at the time of driving was .10 - only that it was at least .08. He said Mata's BAC range was between .12 or .13 all the way up to .25. He testified that these figures were based on Mata having an empty stomach. If he had a full stomach, the range would be more narrow -- that is, from a low end of .16 up to a high end of .21 or .22. Then, when asked if Mata's BAC could have been less than a .10, McDougall said "there was an "extreme situation" in which that was possible.5
McDougall conceded that he did not know how much Mata weighed, how much Mata had to eat or drink before taking the breath test, or when Mata's last drink was.
Defense counsel argued that McDougall's testimony was unreliable insofar as it attempted to extrapolate Mata's .19 breath test result back to the time of his arrest. The trial court denied the motion to suppress.
At trial, McDougall testified to his background again. When the prosecutor asked McDougall to give the jury a range for a person's BAC at the time of driving if two hours later his breath test showed a BAC of .19, defense counsel examined McDougall outside the presence of the jury "concerning the underlying facts or data upon which he relies to render this opinion, so that the Court may determine that the expert has a sufficient basis for his opinion."
During voir dire examination, McDougall testified that, while elimination rates are standard, absorption rates vary from person to person. He testified that the absorption phase does not last more than one hour. He then testified that it could last up to an hour and a half if the person had a full stomach. But he maintained that it was not possible for a person's BAC to peak two hours after he quit drinking. When presented with an exhibit showing a person's BAC peaking two hours after drinking stopped, McDougall testified that that case involved a very small amount of alcohol, which was not the norm. He later testified that he had "tested thousands of individuals" and, "with all of the studies that [he had] read," it was his experience that the BAC will not rise for more than one and a half hours after the first drink, whether the person has a full or empty stomach.6
McDougall acknowledged that he did not know when Mata began drinking or when he stopped or when Mata reached his peak BAC. He explained that, without knowing when Mata peaked, he considers all the possible peak points to calculate the BAC range for Mata at the time of the arrest. He testified that the normal or average person eliminates alcohol at a rate of .02 per hour, that he uses the .02 elimination rate,7 and that he bases his calculations on a "normal drinking pattern." According to McDougall, an individual who "chug-a-lugs" shots of hard liquor in a short period of time is not engaging in a "normal" drinking pattern. He admitted that, if he were to include the chug-a-lug situation in his calculations, there would be "a lot of variability." He conceded that a study by the National Highway Traffic Safety Administration (NHTSA) reflected that a person's BAC can rise 10 points in one hour in the chug-a-lug situation, but he repeated that this was not a "normal" drinking pattern.8
At the conclusion of the voir dire, defense counsel argued that McDougall was only qualified to testify about the "average" or "normal" person, but he could not apply his calculations to Mata, because he did not know if Mata engaged in "normal" drinking patterns, and he did not know if Mata had been eating, how much he had been eating, how much he had had to drink, or his weight. The trial court allowed McDougall to offer his opinion before the jury.
Before the jury, McDougall testified that, given a .19 BAC two hours after driving, he would estimate a person's BAC while driving to be between .13 and .23.9 He also testified that the person's BAC could be lower than .10 if he chug-a-lugged a lot of hard liquor just before being stopped.10 He first testified that it would take five shots to increase from a .10 to a .19 in two hours. He later testified that it would take seven to twelve shots.11
In performing a hypothetical calculation, McDougall utilized a .02 or .03 elimination rate. He later testified that the elimination rate could range from .018 to .025.12
McDougall again testified that he based his calculations and estimates on "normal drinking patterns" and he did not know if Mata followed such patterns.13 He also testified that he did not believe a person's peak BAC could occur more than an hour and a half after the arrest.14
The jury convicted Mata of driving while intoxicated and the court sentenced him to 90 days in jail, probated for two years, and a fine of $400. Mata filed a motion for new trial arguing that the trial court erred in overruling the motion to suppress and in allowing into evidence "the opinion of . . . McDougall . . . because that opinion was non-scientific and unreliable." After hearing argument, the trial court denied Mata's motion.
In his first two points of error on appeal, Mata argued that the trial...
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