U.S. v. Tsosie

• Decision Date: 13 June 2011
• Docket Number: No. CR 10–0773 JB.,CR 10–0773 JB.
• Parties: UNITED STATES of America, Plaintiff,v.John Leonard TSOSIE, Defendant.
• Court: U.S. District Court — District of New Mexico

791 F.Supp.2d 1099

UNITED STATES of America, Plaintiff,
v.
John Leonard TSOSIE, Defendant.

No. CR 10–0773 JB.

United States District Court, D. New Mexico.

June 13, 2011.

[791 F.Supp.2d 1100]

Kenneth J. Gonzales, United States Attorney, Kyle T. Nayback, Mark T. Baker, Assistant United States Attorneys, Albuquerque, NM, for the Plaintiff.Samuel L. Winder, Albuquerque, NM, for the Defendant.MEMORANDUM OPINION AND ORDER JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on: (i) the Plaintiff's Notice of Intent to Introduce Expert Witness Testimony Pursuant to Rules 702, 703 and 705, filed on October 6, 2010 (Doc. 37); and (ii) Defendant's Motion in Limine for Daubert¹ Ruling Regarding the Admissibility and Scope of Ms. Nancy's Drez's Expert Testimony, filed on April 20, 2011 (Doc. 86) (“Motion”). The Court held an evidentiary hearing on April 28, 2011. The primary issue is: (i) whether, despite amendments to N.M.S.A.1978, § 66–8–102C, retrograde extrapolation ² remains viable under New Mexico law; and (iii) whether Plaintiff United States of America's retrograde extrapolation is admissible under rule 702 of the Federal Rule of Evidence. The Court agrees with the parties that New Mexico law controls the analysis of “influence of alcohol.” The Court concludes, however, that New Mexico law allows use of the retrograde extrapolation. The Court further concludes that the United States has met its burden of showing its retrograde extrapolation is reliable. The Court therefore denies the Motion.

FACTUAL BACKGROUND

The charges in this case arise from a fatal crash that occurred sometime before 5:11 a.m. on October 17, 2009. Defendant John Leonard Tsosie was driving one of the vehicles involved in the crash. He told law enforcement and medical personnel who treated him at the hospital that he fell asleep at the wheel, and a test the hospital administered following a blood draw at 6:15 a.m. revealed that Tsosie had a blood alcohol concentration (“BAC”) of .07 mg/mL at that time. Tsosie stated that he had three beers the night before and had stopped drinking at 11:00 p.m. Manuel Johnson was driving the other vehicle, and his wife, Loretta, was the passenger. The crash occurred approximately seven minutes from their home. Neither of the Johnsons survived.

PROCEDURAL BACKGROUND

On March 24, 2010, a Federal grand jury returned a two-count indictment

[791 F.Supp.2d 1101]

charging Tsosie with two counts of involuntary manslaughter for killing M. and L. Johnson while operating a motor vehicle while under the influence of alcohol, contrary to N.M.S.A.1978, § 66–8–102, and driving recklessly, contrary to N.M.S.A.1978, § 66–8–113, in violation of 18 U.S.C. §§ 1112 and 1153. See Indictment, filed March 24, 2010 (Doc. 1).

On October 6, 2010, the United States filed its Notice of Intent to Introduce Expert Witness, notifying Tsosie, in part, that it plans to call Nancy Drez as an expert witness at trial under rule 16 of the Federal Rules of Criminal Procedure, and under rules 702, 703, and 705 of the Federal Rules of Evidence, and that it intends to offer expert testimony in its case-in-chief. See Doc. 37. Dr. Drez is a forensic toxicologist. The United States intends to call Dr. Drez as an expert witness to testify about two opinions. First, she will offer opinion testimony regarding the impairment humans suffer as their BAC increases, which includes drowsiness and significant impairment of motor skills, reaction time, and other functions critical to safe driving. Tsosie does not challenge this testimony. Second, Dr. Drez will testify regarding the rates at which the human body absorbs and eliminates alcohol. Applying these principles to the evidence in this case through retrograde extrapolation, she will testify that Tsosie's BAC would have fallen within the range of .08 to .09 mg/mL at the time of the crash. Carrying the extrapolation back earlier into the night before the crash, she also will show that Tsosie's BAC would have been in the range of .12 to .17 mg/mL at the latest point he could have been expected to start strictly eliminating alcohol from his system. The United States contends Dr. Drez' testimony will show Tsosie failed to tell the truth when he stated that he drank only three beers the night before he took the wheel. According to the United States' Notice:

3. Nancy G. Drez is the Implied Consent Supervisor, Toxicology Bureau, Scientific Laboratory Division of the New Mexico Office of the Medical Investigator. Her CV is attached as Government's Exhibit 3. As an expert in blood and breath analysis, alcohol impairment, blood alcohol content (BAC)/ breath alcohol content (BrAC) extrapolation and other issues related to chemical testing for alcohol, Drez will testify regarding the alcohol content of defendant's blood. A summary of her opinions is attached as Government's Exhibit 3. Drez will explain the nature of impairment at that level of alcohol concentration for an average individual and then for the defendant, given the characteristics known to her about the defendant.

4. Drez will also testify regarding BAC/BrAC extrapolation since the blood samples of the defendant were approximately two hours after the fatal crash with the Johnson vehicle. Based on her training and experience, Drez will opine regarding what range of alcohol levels were likely sustained by the defendant at the time of the collision. Given the facts that will be presented at trial, Drez will present expert testimony that the defendant's BAC/BrAC was between .07 and .13 g/100ml at the time of the collision, depending on the time of the blood draw.

5. The United States anticipates that Drez will testify regarding the effects of alcohol on the human ability to operate motor vehicles, including the impairment of motor skills, vision impairment and drowsiness. In this case, the defendant admitted on more than one occasion that after a night of drinking alcohol, he had fallen asleep at the wheel of his moving

[791 F.Supp.2d 1102]

SUV. In addition, Drez can explain principles underlying alcohol absorption, metabolism, and elimination for forensic purposes. The United States anticipates that the expert opinion will include the conclusion that the defendant's BAC/BrAC level was in excess of the legal limit at the time of the fatal crash given the evidence in the case.Notice at 2–3 (emphasis added). The United States made Dr. Drez available to Tsosie's counsel. See Notice at 1. The United States attached Dr. Drez' July 1, 2010 expert report to the Notice. See Dr. Drez Report, filed October 6, 2010 (Doc. 37–3). Because Dr. Drez did not know the exact time of the blood draw when she drafted her July 1, 2010 report, she used a range of possible times, between 6:00 a.m. and 8:00 a.m., that gave a range of possible BAC values at the time of the crash, between .07 and .13 mg/mL.

On April 14, 2011, Dr. Drez provided an updated report to United States Attorney Kyle T. Nayback. See Dr. Drez Report at 3 (United States Exs. D–2, D–2(a)). Six days later, on April 20, 2011, Mr. Nayback sent Dr. Drez' updated report by electronic mail to Mr. Winder. The updated report contains information that was not set forth in the July 1, 2010 report. Specifically, Dr. Drez updated her report to reflect that Tsosie's blood sample was taken at 6:15 a.m. and now provides a specific conclusion based upon a 6:15 a.m. blood draw. Having learned the time of the blood draw, Dr. Drez, based on the average rate at which individuals process alcohol, uses retrograde extrapolation to conclude that Tsosie had a BAC between .08 and .09 mg/mL at the time of the accident.

Tsosie moves the Court to order that Dr. Drez not be allowed to submit any expert testimony with regard to his BAC based on the use of retrograde extrapolation. Based upon the substance of the motion, Tsosie correctly presumed Mr. Nayback opposes this motion. Tsosie contends that retrograde extrapolation is not permitted under New Mexico law. Tsosie requests that the Court not allow the United States to elicit from Dr. Drez any expert testimony with regard to his BAC with the use of retrograde extrapolation.

At the April 28, 2011 Daubert hearing, Tsosie initially stated that he challenged the admissibility of retrograde extrapolation as a matter of law and not Dr. Drez' analysis. See Transcript of Hearing at 6:20–7:3 (taken April 28, 2011)(“THE COURT: So your problem with Ms. Drez's testimony is not that she didn't do these tests right? ... Your argument is that as a matter of law it's just it's just legally inadmissible in New Mexico State courts? ... MR. WINDER: That's my reading of the law.”); ³ id. at 7:9–13 (“THE COURT: ... [I]f I say, well, from a legal standpoint I think this analysis can come in, you don't have any other problem with Ms. Drez? You're just saying that as a matter of law her entire analysis shouldn't come in. MR. WINDER: That's correct.”). The United States pointed Tsosie and the Court to the Supreme Court of New Mexico's opinion in State v. Day, 143 N.M. 359, 176 P.3d 1091 (2008), which not only permits retrograde extrapolation, but states that, in some circumstances, “the party seeking to prove a BAC at an earlier time must use scientific retrograde extrapolation evidence.” 143 N.M. at 367, 176 P.3d at 1099. In light of this case, Tsosie agreed that retrograde extrapolation is relevant and may be admissible, abandoning his argument that retrograde extrapolation is not permitted under New Mexico law. See Tr. at 113:3–8 (“[The Court:]

[791 F.Supp.2d 1103]

[T]he original basis for the motion ..., that [retrograde extrapolation is] irrelevant ... [,] [y]ou don't raise that issue anymore? MR. WINDER: That's correct. THE COURT: You believe it's legally relevant? MR. WINDER: Yes.”). Tsosie further stated that he does not contest that retrograde extrapolation is a valid methodology that is widely accepted in the scientific community. See Tr. at 113:9–13 (“THE COURT: Do you also agree...