State v. Eighth Judicial Dist. Court of Nevada

• Decision Date: 29 December 2011
• Docket Number: No. 55918.,55918.
• Parties: The STATE of Nevada, Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT OF the STATE of Nevada, in and for the COUNTY OF CLARK, and The Honorable Stefany Ann Miley, District Judge, Respondents,andBobby Armstrong, Real Party in Interest.
• Court: Nevada Supreme Court

127 Nev. Adv. Op. 84

267 P.3d 777

The STATE of Nevada, Petitioner,

v.The EIGHTH JUDICIAL DISTRICT COURT OF the STATE of Nevada, in and for the COUNTY OF CLARK, and The Honorable Stefany Ann Miley, District Judge, Respondents,andBobby Armstrong, Real Party in Interest.

No. 55918.

Supreme Court of Nevada.

Dec. 29, 2011.

Catherine Cortez Masto, Attorney General, Carson City; David J. Roger, District Attorney, Steven S. Owens, Chief Deputy District Attorney, and Bruce W. Nelson, Deputy District Attorney, Clark County, for Petitioner.

Daniel J. Albregts, Ltd., and Daniel J. Albregts, Las Vegas; Mueller, Hinds & Associates and Craig A. Mueller and Michael J. Morey, Las Vegas, for Real Party in Interest.

Before the Court En Banc.

OPINION

By the Court, DOUGLAS, J.:

In this original writ proceeding, we consider the admissibility of retrograde extrapolation evidence to estimate a defendant's blood alcohol level at a point in time based on a blood sample taken at a later point in time. We conclude that although retrograde extrapolation evidence is relevant in a prosecution for driving under the influence, under certain circumstances such evidence may be unfairly prejudicial and therefore inadmissible. Because the prosecution in this case had to rely on the results from a single blood sample and a number of the factors that affect the mathematical calculation necessary to a retrograde extrapolation were unknown, we cannot conclude that the district court manifestly abused or arbitrarily or capriciously exercised its discretion in concluding that the evidence would be unfairly prejudicial in this case. We therefore deny the petition.

FACTS AND PROCEDURAL HISTORY

The State charged real party in interest Bobby Armstrong with driving under the influence causing death and/or substantial bodily harm under two theories of liability: that he (1) was “under the influence of intoxicating liquor” or (2) had “a concentration of alcohol of 0.08 or more in his ... blood or breath” and did “any act or neglect[ed] any duty imposed by law while driving or in actual physical control” of a vehicle. NRS 484C.430(1) (formerly NRS 484.3795). According to the indictment, Armstrong was driving when his vehicle collided with another vehicle, causing substantial bodily harm to the other driver. The collision occurred at approximately 1:30 in the morning. A single blood sample was taken from Armstrong at 3:51 a.m., more than two hours after the collision. That blood sample had an alcohol level of .18. Armstrong filed a pretrial motion to exclude the blood alcohol test result. He argued that his blood was drawn outside the statutory two-hour window provided in NRS 484C.430(1)(c) ¹ and that the test was inadmissible because only one blood sample was obtained. He further argued that the retrograde extrapolation that the State would have to use to determine his blood alcohol level at the time he was driving was unreliable and therefore irrelevant and unfairly prejudicial. The State opposed the motion, arguing that retrograde extrapolation was not required to determine Armstrong's blood alcohol level at the time of the collision because his alcohol level was sufficiently high that a jury could determine that it was above .08 while he was driving, but even if the State were required to do so, any variables in the retrograde extrapolation go to the weight of that evidence rather than its admissibility. The State also argued that the blood alcohol test was admissible to show that Armstrong was driving under the influence of intoxicating liquor.

After a lengthy evidentiary hearing involving the conflicting testimony of two expert witnesses, the district court granted Armstrong's motion in part. The district court excluded retrograde extrapolation as a means of determining Armstrong's blood alcohol level at the time he was driving and the numerical result of the blood alcohol test but allowed the State to present more generalized evidence that the blood test showed the presence of alcohol. This original petition for a writ of mandamus followed.²

DISCUSSION

A writ of mandamus is available to compel the performance of an act that the law requires as a duty resulting from an office, trust, or station, NRS 34.160, or to control a manifest abuse or arbitrary or capricious exercise of discretion, see Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 603–04, 637 P.2d 534, 536 (1981). The writ will not issue, however, if a petitioner has a plain, speedy, and adequate remedy in the ordinary course of the law. NRS 34.170. Ultimately, the decision to entertain an extraordinary writ petition lies within our discretion, and we must “consider[ ] whether judicial economy and sound judicial administration militate for or against issuing the writ,” Redeker v. Dist. Ct., 122 Nev. 164, 167, 127 P.3d 520, 522 (2006), limited on other grounds by Hidalgo v. Dist. Ct., 124 Nev. 330, 341, 184 P.3d 369, 377 (2008), including whether “ ‘an important issue of law needs clarification and public policy is served by this court's invocation of its original jurisdiction,’ ” Diaz v. Dist. Ct., 116 Nev. 88, 93, 993 P.2d 50, 54 (2000) (quoting Business Computer Rentals v. State Treas., 114 Nev. 63, 67, 953 P.2d 13, 15 (1998)). The instant petition challenges the district court's exercise of discretion, and the State has no other remedy at law because it cannot appeal the final judgment in a criminal case. NRS 177.015(3) (“The defendant only may appeal from a final judgment or verdict in a criminal case.”). Because the petition raises an important issue of law that needs clarification, we exercise our discretion to consider its merits.

The admission or exclusion of evidence rests within the district court's sound discretion. Thomas v. State, 122 Nev. 1361, 1370, 148 P.3d 727, 734 (2006). In the context of mandamus, this court considers whether the district court's evidentiary ruling was a manifest abuse or arbitrary or capricious exercise of its discretion. See NRS 34.160; Round Hill, 97 Nev. at 603–04, 637 P.2d at 536. An arbitrary or capricious exercise of discretion is one “founded on prejudice or preference rather than on reason,” Black's Law Dictionary 119 (9th ed. 2009) (defining “arbitrary”), or “contrary to the evidence or established rules of law,” id. at 239 (defining “capricious”). See generally City Council v. Irvine, 102 Nev. 277, 279, 721 P.2d 371, 372 (1986) (concluding that “[a] city board acts arbitrarily and capriciously when it denies a license without any reason for doing so”). A manifest abuse of discretion is “[a] clearly erroneous interpretation of the law or a clearly erroneous application of a law or rule.” Steward v. McDonald, 330 Ark. 837, 958 S.W.2d 297, 300 (1997); see Jones Rigging and Heavy Hauling v. Parker, 347 Ark. 628, 66 S.W.3d 599, 602 (2002) (stating that a manifest abuse of discretion “is one exercised improvidently or thoughtlessly and without due consideration”); Blair v. Zoning Hearing Bd. of Tp. of Pike, 676 A.2d 760, 761 (Pa.Commw.Ct.1996) ( “[M]anifest abuse of discretion does not result from a mere error in judgment, but occurs when the law is overridden or misapplied, or when the judgment exercised is manifestly unreasonable or the result of partiality, prejudice, bias or ill will.”).

The evidence at issue in this case involves retrograde extrapolation. Retrograde extrapolation is a “mathematical calculation used to estimate a person's blood alcohol level at a particular point in time by working backward from the time the blood [sample] was taken.” Com. v. Senior, 433 Mass. 453, 744 N.E.2d 614, 619 (2001). The calculation requires information regarding the rates at which alcohol is absorbed and excreted. Those rates can vary based on a number of factors, including: the amount of time between a person's last drink and the blood test, the amount and type of alcohol consumed, the time period over which alcohol was consumed, and personal characteristics such as age, weight, alcohol tolerance, and food intake. See Mata v. State, 46 S.W.3d 902, 915–16 (Tex.Crim.App.2001), overruled on other grounds by Bagheri v. State, 87 S.W.3d 657, 660–61 (Tex.App.2002).

Relevance is the first question in determining whether retrograde extrapolation evidence is admissible. See NRS 48.025 (providing that “[a]ll relevant evidence is admissible” unless otherwise excluded by statute or constitutional provision and that “[e]vidence which is not relevant is not admissible”). “ ‘[R]elevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.” NRS 48.015. The district court appears to have concluded that retrograde extrapolation evidence had some relevance to the State's theories that Armstrong was driving under the influence or had a blood alcohol concentration above the legal limit at the time he was driving.³ Although we have not addressed the admissibility of retrograde extrapolation as a matter of law, we have alluded to its relevance in prosecutions for driving under the influence. See, e.g., Sheriff v. Burcham, 124 Nev. 1247, 1261, 198 P.3d 326, 335 (2008) (holding that State was not required to present retrograde extrapolation evidence to obtain grand jury indictment where grand jury could reasonably infer from two blood alcohol tests taken within reasonable time after driving that defendant's blood alcohol concentration was .08 or higher when he was driving); Anderson v. State, 109 Nev. 1129, 1135, 865 P.2d 318, 321 (1993) (pointing to retrograde extrapolation evidence in concluding that State presented sufficient evidence to support conviction). We take this opportunity to expressly recognize the relevance of retrograde extrapolation evidence. Retrograde extrapolation evidence is relevant to the two theories of driving under the influence charged in this case, as it has a tendency to make the...