Sheriff v. Burcham

• Decision Date: 24 December 2008
• Docket Number: No. 50026.,50026.
• Citation: 198 P.3d 326
• Parties: SHERIFF, CLARK COUNTY, Appellant, v. Daniel J. BURCHAM, Respondent.
• Court: Nevada Supreme Court

198 P.3d 326

SHERIFF, CLARK COUNTY, Appellant, v. Daniel J. BURCHAM, Respondent.

No. 50026.

Supreme Court of Nevada.

December 24, 2008.

Catherine Cortez Masto, Attorney General, Carson City; David J. Roger, District Attorney, and Bruce W. Nelson, Deputy District Attorney, Clark County, for Appellant.

Thomas F. Pitaro, Las Vegas, for Respondent.

BEFORE THE COURT EN BANC.

OPINION

By the Court, GIBBONS, J.:

Respondent Daniel J. Burcham was charged with felony driving under the influence (DUI) pursuant to NRS 484.3795(l)(a) and (b) following an accident that caused the death of another driver. The State appeals the district court's order granting Burcham's pretrial habeas petition and dismissing the felony DUI charge.

We primarily consider whether the definition of "under the influence," set forth in this court's 1987 decision, Cotter v. State,¹ applies to the current version of NRS 484.3795(l)(a). In 1995, the Legislature amended NRS 484.3795, delineating the various acts that may constitute violations of the statute into separate paragraphs.² Although we acknowledge that these amendments impact the analysis in Cotter with respect to NRS 484.3795(1), we nevertheless conclude that the standard set forth in Cotter is still appropriate for determining whether a defendant is "under the influence." To find someone "under the influence," a factfinder must determine that the driver was impaired "to a degree which renders him incapable of driving safely."³ We further conclude that because the State's burden at a grand jury proceeding is to present slight or marginal evidence to support a reasonable inference that the defendant committed the crime charged,⁴ the State presented sufficient evidence that Burcham was under the influence of alcohol.

Second, we consider whether the State must use expert testimony or explain retrograde extrapolation to a grand jury when a charge under NRS 484.3795(l)(b) is based on evidence that the defendant's blood-alcohol concentration (BAC) was tested twice within a reasonable time after the collision, was lower in the second test, and was below 0.08. We conclude that expert testimony regarding retrograde extrapolation or an explanation by the State is not required in grand jury proceedings under these circumstances.

Therefore, we reverse the district court's order granting Burcham's pretrial petition for a writ of habeas corpus on the felony DUI charge, and we remand this matter for further proceedings.

FACTS AND PROCEEDINGS

Sometime between 6:15 a.m. and 6:30 a.m. on April 30, 2006, Burcham rear-ended Dylan Whisman's car, which had been stopped at a traffic light for at least one minute. An expert in accident reconstruction testified that Burcham was traveling 56 to 69 miles per hour in a 45-mile-per-hour zone when his truck pushed Whisman's car through the intersection and into a ditch. Whisman's car then erupted into flames. The coroner investigator testified that the cause of death was related to the collision, but she was unable to determine at the scene whether the specific cause was blunt force trauma or fire.

At the hospital, Burcham admitted drinking one beer at approximately 8 p.m. the night before the collision, and a Nevada Highway Patrol trooper observed that Burcham's eyes were bloodshot and watery and that his breath smelled of alcohol. Blood tests confirmed that Burcham had alcohol in his blood. At 7:15 a.m., his BAC was 0.07, and at 8:22 a.m., it was 0.04.

The grand jury indicted Burcham for violations of NRS 484.3795 (DUI causing death)⁵ based on two theories: (1) that Burcham was under the influence of alcohol, pursuant to subsection (l)(a), when he collided with Whisman's car and (2) that Burcham was driving with a BAC of 0.08 or more, pursuant to subsection (l)(b).

Burcham filed a pretrial petition for a writ of habeas corpus, arguing that the State produced insufficient evidence to establish probable cause as to the felony DUI charge.⁶ In particular, Burcham argued that, as to the theory based on NRS 484.3795(l)(a), the State had failed to establish probable cause that he was under the influence at the time of the collision. As to the theory based on NRS 484.3795(l)(b), Burcham argued that the State had failed to establish probable cause that his BAC was 0.08 or higher at the time of the collision because the State's theory required expert testimony regarding retrograde extrapolation.

In response, the State asserted that sufficient evidence supported the indictment for felony DUI because only slight impairment is required for a defendant to be "under the influence" pursuant to NRS 484.3795(l)(a). The State also argued that "simple arithmetic" supported the inference, based on the two blood tests taken after the collision, that Burcham's BAC at the time of the collision was 0.085 and therefore expert testimony was not required on this issue for the State to meet its burden before the grand jury for purposes of NRS 484.3795(l)(b).⁷ Burcham responded that the State offered no evidence regarding retrograde extrapolation and, therefore, did not meet its burden of proof.

The district court granted the petition and dismissed the charge of DUI causing death for two reasons. First, the district court concluded that the term "under the influence" as set forth in NRS 484.3795(l)(a) has the meaning ascribed to it in Cotter and that the State had failed to present evidence to establish "a connection between [Burcham's] intoxication and his inability to exercise physical control over his vehicle." Second, the district court ruled that the State was required to present expert testimony on retrograde extrapolation in order to support its theory that, based on the BAC in the two blood samples taken from Burcham after the collision, Burcham had a BAC of 0.08 or higher at the time of the collision for purposes of NRS 484.3795(l)(b). According to the district court, the process of retrograde extrapolation "is more complex than the State would have this [c]ourt believe," and the State was required to present some evidence to explain the process. Therefore, the district court concluded that the State had failed to present sufficient evidence to support a reasonable inference that Burcham violated NRS 484.3795(l)(b). The State appealed the district court's order granting the writ petition as to the felony DUI charge.⁸

DISCUSSION

NRS 484.3795(1)(a): "under the influence"

The district court held that Cotter states the correct interpretation of "under the influence," requiring a connection between the defendant's "intoxication and his ability to exercise physical control over his vehicle." The State initially argued that NRS 484.3795(l)(a) and Cotter require that it show Burcham's driving was only slightly impacted by the ingestion of alcohol to establish that he was under the influence of alcohol.⁹ But the State conceded in its reply brief and oral argument that Cotter is probably still the correct standard. Thus, the State and Burcham essentially agree that Cotter still requires that the State prove that the alcohol impaired Burcham to a degree that rendered him incapable of driving safely. The issue remaining for this court is whether the Cotter holding is still sound considering the subsequent amendments to NRS 484.3795.

This court reviews questions of law and statutory interpretation de novo, and we only look beyond the plain language of the statute if that language is ambiguous or its plain meaning clearly was not intended.¹⁰ Therefore, where the legislative intent is clear, we must effectuate that intent.¹¹ "Additionally, statutory construction should always avoid an absurd result."¹²

NRS 484.3795(1) sets forth six alternative means of violating the statute. The three alternatives set forth in subsections (l)(a)-(c) are relevant to this case. Under paragraph (a), a person must be "under the influence of intoxicating liquor," whereas under paragraphs (b) and (c), a person must have a BAC of 0.08 or more, under different circumstances. Thus, paragraphs (b) and (c) establish per se violations based on a specific BAC regardless of whether the person is impaired, whereas paragraph (a) does not require a specific BAC.¹³

This court addressed the meaning of "under the influence" in a prior version of NRS 484.3795 in Cotter, a case involving a defendant convicted of DUI causing substantial bodily harm based on being under the influence of a controlled substance.¹⁴ When Cotter was decided in 1987, NRS 484.3795(1) set forth the offense and alternative means of committing it in a lengthy single sentence:

Any person who, while under the influence of intoxicating liquor or with a 0.10 percent or more by weight of alcohol in his blood, or while under the influence of a controlled substance, or under the combined influence of intoxicating liquor and a controlled substance, or any person who inhales, ingests, applies or otherwise uses any chemical, poison or organic solvent, or any compound or combination of any of these, to a degree which renders him incapable of safely driving or exercising actual physical control of a vehicle, does any act or neglects any duty imposed by law while driving or in actual physical control of any vehicle on or off the highways of this state, if the act or neglect of duty proximately causes the death of, or substantial bodily harm to, any person other than himself, shall be punished by imprisonment....

(Emphasis added.) Based on this provision, the State argued that the phrase "to a degree which renders him incapable of safely driving or exercising actual physical control of a vehicle" applied only to the clause immediately preceding it, dealing with "any chemical, poison or organic solvent, or any compound or combination of any of these," and not to the clause under which the defendant had been convicted—being under the influence of a controlled substance.¹⁵ Consistent with that interpretation, the State insisted that "any person who drives a...