State v. Sercey

• Citation: 825 So.2d 959
• Decision Date: 17 June 2002
• Docket Number: No. 1D00-1334.,1D00-1334.
• Parties: STATE of Florida, Appellant, v. Rachel Louise SERCEY, Appellee.
• Court: Court of Appeal of Florida (US)

825 So.2d 959

STATE of Florida, Appellant, v. Rachel Louise SERCEY, Appellee.

No. 1D00-1334.

District Court of Appeal of Florida, First District.

June 17, 2002.

Robert A. Butterworth, Attorney General, and Charmaine M. Millsaps, Assistant Attorney General, Tallahassee, for Appellant.

Nancy A. Daniels, Public Defender, and Fred Parker Bingham, II, Assistant Public Defender, Tallahassee, for Appellee.

BARFIELD, J.

In this prosecution for DUI manslaughter and other related offenses, the State of Florida appeals the trial court's order which excludes all evidence of marijuana in the defendant's blood. Applying the principles enunciated in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), and its Florida progeny, we reverse the order in part.

About noon on April 19, 1998, Rachel Sercey was driving a van carrying disabled persons on State Road 121 in Alachua County. The vehicle was traveling at a high rate of speed when the right rear tire began to come apart. According to witnesses, Sercey failed to brake and eventually lost control of the vehicle, which overturned. Three of the ejected disabled passengers died of their injuries. The injured Sercey was taken to a hospital, where it was noted that she smelled of alcohol and she admitted, "I had a couple beers before work" and "I smoke a little weed."

A medical specimen of Sercey's blood, drawn about one hour after the accident and tested in the hospital lab, indicated that her blood alcohol concentration (BAC) was "below detectable limits" (i.e., less than .02 grams/deciliter). A legal specimen of Sercey's blood, drawn almost three hours after the accident at the request of the Florida Highway Patrol (FHP) and tested by the Florida Department of Law Enforcement (FDLE) crime laboratory, indicated a BAC of .068 grams/deciliter.

The legal blood specimen was sent to the Chemical Toxicology Institute in Foster City, California, a private clinical and forensic toxicology lab directed by Dr. Randall Baselt, Ph.D. The lab received the blood specimen, and an accompanying letter from the FHP requesting analysis for marijuana, by express mail on May 27, 1998. The blood specimen was analyzed for marijuana on June 11 and 12, 1998. It was initially subjected to a preliminary radioimmunoassay (RIA) which indicated the presence of cannabinoids (chemical compounds found in marijuana) including tetrahydrocannabinol (THC), the psychoactive component of marijuana. The blood specimen was then subjected to GC/MS analysis to confirm and quantify the amount of THC and its more stable primary inactive metabolite, carboxytetrahydrocannabinol (referred to variously as cTHC, carboxy-THC, THCCOOH, or THC acid). Briefly stated, GC/MS analysis involves solvent extraction of the cannabinoids from the blood matrix, evaporation of the solvent and chemical reaction of the residue with a derivatizing agent to obtain a compound that can be directly injected into the GC/MS instrument, and separation of the individual cannabinoids by gas chromatography (GC), using a connecting mass spectrometer (MS) as the detector.¹ This confirmation test indicated that the blood specimen contained 5.5 ng/ml THC and 91 ng/ml cTHC.

Sercey was charged with three counts of DUI manslaughter, three counts of vehicular homicide, and two counts of DUI with serious bodily injury. Her coworker, Evertice Cole, was charged with seven counts of abuse or neglect of disabled persons, and pled no contest to seven counts of culpable negligence. Cole was expected to testify at Sercey's trial that she was with Sercey the entire day of the accident, but did not see Sercey consume marijuana, and that Sercey did not appear to be impaired. The state apparently does not have an eyewitness willing to testify that Sercey consumed marijuana prior to the accident.

Sercey filed motions in limine seeking to exclude opinion testimony by the state's toxicology experts, Dr. Baselt and Dr. Bruce Goldberger, regarding the results of the RIA screen and GC/MS analysis, as well as their opinions regarding the recency of her use of marijuana prior to the blood specimen being drawn, the method of ingestion (i.e., that she had smoked marijuana as opposed to ingesting it by other means), and whether she was impaired by alcohol and marijuana at the time of the accident. She asserted that Dr. Baselt's testing procedures "are not reliable and not generally accepted in the relevant scientific field," that the general principle or theory underlying the expert opinions "is not sufficiently established to have gained general acceptance in the relevant scientific fields," and that "application of the scientific principles to the facts of this case and the conclusions drawn by the State's experts are not reliable and not generally accepted by the scientific community." She argued that no conclusions regarding impairment could be drawn from the THC/cTHC test results because there was only one blood specimen and because there is "no consensus in the scientific community as to any specific level of THC in blood that correlates with impairment." She asserted that impairment is an element of the state's proof of DUI manslaughter, an ultimate issue which is for the jury to decide by applying a legal standard to the facts, and that any opinion regarding impairment by the state's experts "is speculative and is not based on scientific principles" because the scientific tests upon which the state's experts rely "only show whether a driver consumed alcohol or drugs" and "do not measure impairment," and because there is "no consensus in the scientific community that the use of marijuana necessarily impairs a person's ability to drive" and "no consensus in the scientific community as to any specific level of THC or THC metabolites in the blood that correlates with impairment."

Sercey argued that "opinions as to the time of usage of marijuana" based on mathematical models developed in studies conducted by Dr. Huestis and others (the Huestis models) are not sufficiently established to have gained general acceptance in the relevant scientific community for several reasons. She asserted that the Huestis models were developed using "naive users of marijuana," that they were based on smoking marijuana (as opposed to other routes of ingestion), that they were based on "analysis of plasma concentrations of THC, as opposed to analysis of whole blood" (asserting that conversion between plasma and whole blood test results is more complex for THC than for alcohol), and that they "have not yet been widely peer reviewed for use in a forensic, legal setting." She argued that application of the Huestis models to the facts of this case is improper and unreliable because Dr. Baselt's calculations erroneously assumed that the partition coefficient for cTHC was the same as for THC, because there was evidence that she was a chronic marijuana user, but no evidence that she smoked marijuana on the date of the accident, and because the ranges of possible times of use based on the Huestis models "are too broad, and there is too much uncertainty as to the accuracy of those ranges in this case." The state contended that because there was no serious controversy with regard to the relevance of the challenged testimony or the qualifications of the experts, the only issue was whether the expert testimony was based on a scientific principle or discovery that is "sufficiently established to have gained general acceptance in the particular field in which it belongs." It conceded that "the burden is on the proponent of the evidence to prove the general acceptance of both the underlying scientific principle and the testing procedures used to apply that principle to the facts at hand," but pointed out that a Frye hearing "is not necessary for areas of science well established over the years." The state did not dispute "that the scientific basis and methodology underlying the determination that an identifiable quantity of either alcohol or marijuana was in the defendant's blood is arguably subject to a Frye determination," but it challenged the suggestion by defense counsel "that once the ability of an expert to testify as to the presence of alcohol or marijuana in blood is established and meets the Frye test, an additional Frye determination must be made as to the opinion that flows from the data concerning the presence of alcohol or marijuana in the blood." It asserted that "the mere fact that the defense will produce testimony challenging the conclusions and methodologies employed by the State's experts does not require suppression when the Court nonetheless finds those conclusions to be generally accepted in the scientific community," citing Coppolino v. State, 223 So.2d 68 (Fla. 2d DCA 1968),appeal dismissed,234 So.2d 120 (Fla.1969),cert. denied, Coppolino v. Florida, 399 U.S. 927, 90 S.Ct. 2242, 26 L.Ed.2d 794 (1970).

Citing Florida Power & Light Co. v. Tursi, 729 So.2d 995 (Fla. 4th DCA 1999), the state asserted that "there is nothing new or novel about an expert who possesses the requisite background to do so rendering an opinion as to impairment based on the presence of intoxicants such as alcohol and marijuana," and that "under Section 90.704, the facts or data relied upon by an expert to support an opinion need not be admissible so long as those facts or opinions are of a type reasonably relied upon by experts in that field." Citing State v. McClain, 525 So.2d 420 (Fla.1988), and other cases, it contended that "evidence of the presence of intoxicants is relevant and admissible in a prosecution of the sort involved in this case even if no quantitative analysis is possible because even a small amount of drugs can explain impaired conduct." It asserted that the expert opinions on impairment were scientific, not legal, and challenged the argument that the opinions "would invade the ultimate province of the jury," citing Gutierrez v. State, 739 So.2d 1175 (Fla. 3d DCA 1999). It stated that...