State v. Miller

Citation683 Ariz. Adv. Rep. 49,234 Ariz. 289,321 P.3d 454
Decision Date28 March 2014
Docket NumberNo. 1 CA–SA 13–0132.,1 CA–SA 13–0132.
PartiesSTATE of Arizona ex rel. William G. MONTGOMERY, Maricopa County Attorney, Petitioner, v. The Honorable Phemonia L. MILLER, Commissioner of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Commissioner, Suzanne Racquel Madrid, Real Party in Interest.
CourtCourt of Appeals of Arizona


Maricopa County Attorney's Office By Lisa Marie Martin, Phoenix, Counsel for Petitioner.

Law Offices of Neal W. Bassett By Neal W. Bassett, Phoenix, Shell & Nermyr PLLC By Mark A. Nermyr, Chandler, CoCounsel for Real Party in Interest.

Presiding Judge ANDREW W. GOULD delivered the opinion of the Court, in which Judge MARGARET H. DOWNIE and Judge PATRICIA A. OROZCO joined.


GOULD, Judge.

¶ 1 The State seeks special action relief from the trial court's order granting Defendant's motion in limine. The trial court's order precluded the State's expert from testifying that, based on his retrograde extrapolation calculation, Defendant's blood alcohol concentration (BAC) was above the legal limit within two hours of driving. Because we conclude the expert's testimony is admissible under Arizona Rule of Evidence 702, we accept jurisdiction and grant relief.

Facts and Procedural Background

¶ 2 In May 2009, Suzanne Racquel Madrid (Defendant) was stopped by the police on suspicion of driving under the influence of alcohol. The traffic stop occurred at 2:20 a.m. Defendant was arrested, and at 6:15 a.m. her blood was drawn. Defendant's blood test showed her BAC was .127.

¶ 3 Defendant was eventually indicted on two counts of aggravated driving while under the influence of alcohol (“DUI”). Count One charged Defendant with driving under the influence of alcohol while her ability to drive was impaired by alcohol “to the slightest degree.” Arizona Revised Statutes (“A.R.S.”) section 28–1381(A)(1) (2012).1 Count Two charged Defendant with driving while her BAC was .08 or greater within two hours of driving. A.R.S. § 28–1381(A)(2) (2012).2

¶ 4 Because Defendant's blood was drawn almost four hours after she was stopped by the police, the State did not have a blood test showing her BAC within two hours of driving. A.R.S. § 28–1381(A)(2). In order to prove what Defendant's BAC would have been within two hours of driving, the State was required to perform a retrograde extrapolation. See State v. Claybrook, 193 Ariz. 588, 590, ¶ 14, 975 P.2d 1101, 1103 (App. 1998) (stating that [w]hen a defendant's BAC test does not occur within two hours of driving ... the State may still meet its burden of proving that the defendant had a BAC” above the legal limit within two hours of driving by using retrograde extrapolation).3

¶ 5 A retrograde, or retroactive extrapolation, is a method by which a person's BAC at an earlier point in time is calculated based on his BAC from a later blood test. Claybrook, 193 Ariz. at 590, ¶¶ 14–15, 975 P.2d at 1103;Ring, 141 Ariz. at 69, 685 P.2d at 134. Here, the State's expert planned to use retrograde extrapolation to calculate Defendant's blood alcohol content within two hours of the stop based on the blood draw taken at 6:15 a.m.

¶ 6 Prior to trial, Defendant filed a motion requesting an evidentiary hearing to determine the admissibility of the State's proffered retrograde extrapolation testimony. The trial court held an evidentiary hearing on the motion, during which the State's expert, John Musselman, and Defendant's expert, Chester Flaxmayer, testified about the science of retrograde extrapolation.

¶ 7 Both Musselman and Flaxmayer agreed on the validity of the basic science underlying retrograde extrapolation. The experts testified that when individuals drink alcohol, it is absorbed into their blood stream. After they stop drinking, their blood alcohol concentration will continue to rise until it reaches a “peak,” or maximum concentration in their blood. After a person's BAC reaches its peak, it will then begin to fall as their body eliminates alcohol faster than it absorbs it.

¶ 8 Musselman and Flaxmayer agreed that there are two key factors in making a retrograde calculation: (1) the amount of time it takes a person to fully absorb alcohol and reach a “peak” BAC, and (2) the rate at which a person eliminates alcohol from his body. Flaxmayer agreed that the alcohol elimination rate used by Musselman in his retrograde analysis was scientifically valid.4 Both experts also agreed that in order to make a valid retrograde analysis, an individual must have been “fully absorbed,” or have reached a peak BAC at the relevant time period.5 Otherwise, the retrograde analysis may overestimate a person's BAC. Finally, both Musselman and Flaxmayer testified that a number of variables affect how long it takes an individual to reach their peak BAC, including drinking history (time of last drink, how much they drank and over what time period, what type of alcohol they drank, whether they are a heavy or social drinker), eating history (when they ate, what they ate and how much food they consumed before they were stopped), and personal characteristics (height, weight, gender).

¶ 9 One area addressed by the experts was the application of retrograde extrapolation to the “time of test” and the “time of driving.” The phrase “time of driving” refers to the last point in time when a defendant is driving or in actual physical control of a vehicle. Kurt M. Dubowski, Article: Time–of–Test DUI Laws vs. BAC Extrapolation, December 2006, pp. 3–13 (Presented at The Robert F. Borkenstein Course on Alcohol and Highway Safety, Indiana University/Bloomington). In this case, the time of driving was 2:20 a.m., when Defendant was stopped by the police. The phrase “time of test” refers to a defendant's BAC measured at a specific time interval after the time of driving, e.g., after the time of the traffic stop/arrest. Id. In many states, this time interval is set by statute. Id. Such statutes are referred to as “per se” DUI statutes, because a defendant is presumed to be impaired from alcohol if his BAC is above the legal limit at the specified time interval. Id. at 3. The statutory interval for a per se DUI offense in Arizona is designated as “within two hours of driving or being in actual physical control” of a vehicle. A.R.S. § 28–1381(A)(2). Here, the time of the test refers to Defendant's BAC within two hours of driving, or immediately before 4:20 a.m.

¶ 10 Musselman agreed with Flaxmayer that a scientifically valid retrograde analysis could not be related back to Defendant's time of driving without knowing what she ate and drank, and when, before she was arrested. However, Musselman testified that a valid retrograde analysis could be performed to within two hours of Defendant's driving even without information concerning Defendant's eating and drinking history. Musselman's opinion was based on three assumptions: (1) Defendant consumed no alcohol or food in the two hour interval after she was stopped; (2) the average person is fully absorbed and reaches peak BAC within two hours after consuming their last drink, which in this case would have been no later than the time of the traffic stop; and (3) a range of BAC is used rather than a specific value. Based on these assumptions, Musselman testified that Defendant's BAC within two hours of driving was .127 to .177, well above the legal limit of .08.

¶ 11 Flaxmayer testified that a valid retrograde analysis could not be performed to within two hours of driving without knowing Defendant's eating and drinking history prior to the traffic stop. He opined that it is not reasonable to assume the average person reaches peak BAC within two hours of consuming their last drink, because “large numbers of individuals” do not reach peak BAC within this time period. Flaxmayer stated that it is critical to know a person's eating and drinking history in order to determine when a person reaches his peak BAC and that any assumptions about a person's peak BAC without this information are speculative.

¶ 12 The trial court granted Defendant's motion in limine, finding that Musselman's retrograde analysis was not reliable under the Daubert standards set forth in “amended Arizona Rules of Evidence 702.” The trial court found that Musselman failed to account for important unknown variables affecting Defendant's BAC, such as Defendant's eating and drinking history before the traffic stop. The trial court also relied on literature authored by Dr. Alan Wayne Jones for the proposition that alcohol absorption differs among individuals and that many factors play a role in when an individual's “peak BAC” occurs. It also found persuasive State v. Armstrong, 267 P.3d 777 (Nev.2011), in which the Nevada Supreme Court held that a retrograde extrapolation is unreliable if it is insufficiently tied to important variables affecting the calculation, such as the drinking and eating history of a defendant. The trial court concluded that the State's retrograde analysis was “unreliable and highly prejudicial,” and [t]hough relevant, the probative value is outweighed by the prejudicial effect.” Based on these findings, the trial court issued an order “precluding the retrograde extrapolation and any testimony that the defendant was above the legal limit within two hours of driving.”

¶ 13 The State filed this special action challenging the trial court's order and requesting a stay of the jury trial. We previously granted the State's stay request.


¶ 14 We accept jurisdiction of this special action because the State has no immediate right to appeal the trial court's preclusion order; as a result, the State has no “equally plain, speedy, and adequate remedy by appeal.” Ariz. R.P. Spec. Act. 1(a); State v. Bernstein, 234 Ariz. 89, 93, ¶ ¶ 6–7, 317 P.3d 630, 634 (App.2014) (State has no immediate right to appeal from an order precluding evidence at trial); State v. Bejarano, 219 Ariz. 518,...

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