State v. Harvey, 20170733-CA
| Decision Date | 20 June 2019 |
| Docket Number | No. 20170733-CA,20170733-CA |
| Citation | 446 P.3d 125 |
| Parties | STATE of Utah, Appellee, v. Randy Lynn HARVEY, Appellant. |
| Court | Utah Court of Appeals |
Emily Adams, Attorney for Appellant
Sean D. Reyes, Salt Lake City, and Lindsey L. Wheeler, Attorneys for Appellee
Opinion
¶1 A police officer (Officer) testified at trial, based on information he received in his police training, about the human body's average rate of elimination of alcohol—the "burn-off rate." Randy Lynn Harvey, who was standing trial for driving under the influence (DUI), objected for lack of foundation. The district court overruled the objection, and a jury found Harvey guilty. Harvey subsequently filed a motion for a new trial, asserting that Officer gave expert testimony as a lay witness. The district court denied the motion. Harvey appeals, and we reverse.
¶2 Around one o'clock in the morning in late November 2015, Officer, a fourteen-year police veteran with advanced roadside impairment training and about 200 DUI arrests under his belt, spotted a pickup truck traveling without its taillights illuminated and initiated a traffic stop by turning on his overhead lights. Harvey, who was driving the truck, continued for about one block and stopped at a red light as Officer, with his patrol car's lights still flashing, followed him. Harvey proceeded through the light after it had turned green, travelled another half block, and then pulled over, bringing the truck to a stop. Officer noted that the street was "pretty dead" and that there was "quite a bit of parking [at] that time of night on the side of the road."
¶3 When Officer approached the truck, Harvey rolled down the window about two inches, but he did not look Officer in the eye. Officer observed that Harvey's left eye "appeared to be glassy and bloodshot." Officer also detected "a strong odor of an alcoholic beverage emanating from the vehicle" and saw a "passenger attempting to hide a ... half-consumed [bottle of] vodka ... in a bag behind her seat." When asked, Harvey denied that he had been drinking.
¶4 Officer requested that Harvey perform several field sobriety tests (FST). Officer recalled that Harvey appeared to have good balance when he exited his vehicle to take the FSTs. But with regard to his ability to perform the FSTs, Harvey advised Officer that (1) he had a titanium ankle replacement because he had been shot with a .40 caliber bullet in one leg and (2) he had been bitten in the calf on the other leg by a shark when he was a child.
¶5 Officer had Harvey perform three standardized FSTs. The first was the horizontal gaze nystagmus test
(HGN test). In administering the HGN test, Officer noticed six out of a possible six indicators that Harvey had alcohol in his system. Officer next administered the vertical gaze nystagmus test (VGN test), but Harvey's performance during this test did not show any indicators of the presence of alcohol. At trial, Officer testified that the VGN test detects when someone has a high level of alcohol in his blood. The third FST was the walk-and-turn test, which Harvey had indicated he could probably complete despite his injuries, but he advised Officer that "numbness" in his calf would "prevent him from feeling when his feet touched heel to toe." Officer recalled telling Harvey that he "would take that into consideration." Harvey's performance during this test showed six out of eight possible indicators of the presence of alcohol in his system. Because Harvey's prior leg injuries prevented him from performing the last standardized FST—the one-leg-stand test—Officer opted to have Harvey recite the letters of the alphabet and count backward. Harvey performed both tests without error.
¶6 Based on Harvey's performance on the walk-and-turn and HGN tests and the odor of the alcoholic beverage, Officer arrested him for DUI. After transporting Harvey to the police station, Officer requested that Harvey take a breath test to determine his blood alcohol content (BAC). Even after being warned that refusal to take the test may result in the loss of his driver license, Harvey refused to submit to it. Officer then obtained a search warrant to collect Harvey's blood for testing, and a sample was drawn at about three o'clock in the morning, two hours after Harvey was pulled over. Harvey's blood was subjected to two identical tests—a screening test and a confirmation test—with each test producing two results. The screening test measured Harvey's BAC at .075 and .076. The confirmation test yielded two BAC results of .081.
¶7 The State charged Harvey with DUI. Under Utah law, Harvey could be found guilty of DUI if (a) a subsequent chemical test showed that he had a BAC of .08 or greater at the time of the test, (b) he was under the influence of alcohol to a degree that rendered him incapable of safely operating a vehicle, or (c) he had a BAC of .08 or greater while operating a vehicle. Utah Code Ann. § 41-6a-502(1) (LexisNexis 2014). In Harvey's case, the DUI was charged as a third-degree felony based on two prior DUI convictions within the last ten years. See id. § 41-6a-503(2)(b).
¶8 The State's forensic scientist testified that he could not "rule out the possibility" that Harvey's BAC was below .08 at the time it was tested. He stated that the tests he ran indicated that Harvey's BAC would have been "around [.07 or .08] and probably within those two numbers."
¶9 In addition to recounting the details of the arrest, Officer testified that "the average burn-off rate [for alcohol] is approximately .015" per hour. Harvey's counsel immediately objected to this testimony for lack of foundation. The court asked the State to "lay some foundation with respect to how [Officer] would know" about alcohol burn-off rates. Officer testified that he learned about how the body burns off alcohol in his training at the police academy. Harvey's counsel again objected, but the court overruled the objection, stating, On cross-examination, Officer stated that he could not calculate Harvey's precise alcohol burn-off rate and could provide only the average because rates depend on weight, gender, and what someone has eaten.
¶10 At the close of the State's case, Harvey moved for a directed verdict because the State's forensic scientist testified that Harvey's BAC may have been below .08 and because Officer did not notice a pattern of unsafe driving. Based on the forensic scientist's testimony, the district court determined that there was "a real probability" that Harvey's BAC was under .08. Thus, the court granted the motion in part, finding that a reasonable jury could not find Harvey's BAC was .08 or higher at the time of the blood test. But the district court allowed the case to proceed to the jury on the other two prongs of the statute, namely (1) whether Harvey was under the influence of alcohol to a degree that rendered him incapable of safely operating a vehicle or (2) whether Harvey had a BAC of .08 or greater while operating a vehicle. See Utah Code Ann. § 41-6a-502(1)(b)–(c). The jury found Harvey guilty.
¶11 Subsequently, Harvey moved for a new trial, arguing that Officer's burn-off-rate testimony was improper expert testimony from a lay witness. The district court denied the motion, explaining that Officer had "sufficient training and expertise to relay the information" that he had learned in the police academy "about the average blood alcohol dissipation rate." The district court imposed a suspended prison sentence and placed Harvey on supervised probation. Harvey appeals.
¶12 The issue presented on appeal is whether the district court erred in admitting Officer's burn-off-rate testimony. "A decision to admit or exclude expert testimony is left to the discretion of the [district] court, and that decision will not be reversed unless it constitutes an abuse of discretion." Belnap v. Graham , 2016 UT App 14, ¶ 8, 366 P.3d 852 (cleaned up). And "[e]ven if we determine the testimony was erroneously admitted, the defendant must show that the error was prejudicial." State v. Peraza , 2018 UT App 68, ¶ 23, 427 P.3d 276, cert. granted , 429 P.3d 460 (Utah 2018).1
¶13 The State makes no effort to defend the district court's ruling on the admissibility of Officer's burn-off-rate testimony. Rather, the State's theory is that Officer's burn-off-rate testimony—even if erroneously admitted—was harmless because there was overwhelming evidence to convict Harvey under the alternative impairment theory of DUI, namely, that Harvey was under the influence of alcohol to a degree to render him incapable of safely operating a vehicle. See Utah Code Ann. § 41-6a-502(1)(b) (LexisNexis 2014). In other words, for the burn-off-rate testimony to be harmless, we must conclude that the other evidence presented at trial demonstrating that Harvey was incapable of safely operating a vehicle was so strong that there is no reasonable likelihood that the admission of the burn-off-rate testimony affected the jury's verdict. Thus, the State's argument is a delicate house of cards built on the foundation of showing there was ample evidence of Harvey's incapacity.
¶14 We first consider the admissibility of Officer's burn-off-rate testimony. Then, having determined that his testimony was improperly admitted, we consider whether its admission was harmless based on the strength of the evidence showing that Harvey was under the influence of alcohol to a degree rendering him incapable of safely operating a vehicle.
¶15 We agree with Harvey that Officer was not a qualified expert on the subject of alcohol burn-off rates and therefore should not have been allowed to testify about this subject. The Utah Rules of...
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