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State v. Luber8/17/2000
cites to is the following:
QUESTION: Mr. Johnson, you indicated earlier that you did not know what Ms. Luber's absorption rate was; is that correct?
ANSWER: Correct.
QUESTION: Or her elimination rate?
ANSWER: Correct.
QUESTION: You indicated that you are familiar, however, with the idea of retrograde analysis -
ANSWER: Yes.
QUESTION: -- of someone's blood alcohol level?
If I was to give you your choice between three ways of determining a person's blood alcohol level - and I'll list them for you - could you tell me which one is the most accurate. The first would be a chemical test; the second would be a retrograde analysis based on drinking history; and the third would be a combination of the first two. Which would you consider to be the most accurate?
ANSWER: The chemical test.
QUESTION: The chemical test alone?
ANSWER: Yes.
. This testimony cannot reasonably be interpreted to mean that the BAC test result at 4:40 a.m., in itself, is the only reliable evidence of her BAC at the time of driving. Johnson consistently testified that knowing only Luber's BAC at 4:40 a.m., he could not estimate her BAC two hours earlier without either making a calculation based on averages and assumptions or having information on Luber's metabolization of alcohol. He also testified earlier that only an actual test at another time would establish a BAC for that other time that was as valid as the BAC determined for 4:40 a.m. based on the sample taken at 4:40 a.m. The only reasonable reading of the testimony to which the State cites is that Johnson is restating his earlier testimony that a chemical test of a sample is the most accurate way to determine a person's BAC at the time the sample is taken. A reasonable jury could not find, based on the above quoted testimony of Johnson, that Luber's BAC at 4:40 a.m. was, in itself, evidence that her BAC when she was driving was over .08.
. In summary we conclude that viewing the evidence most favorably to the State, and drawing all reasonable inferences from the evidence in favor of the State, no reasonable juror could determine that Luber had a BAC at .08 or above at the time she was driving. Therefore, the State is precluded from trying Luber on this charge a second time. Accordingly, we reverse the trial court's order denying Luber's motion and direct the court to enter an order dismissing the PAC charge.
By the Court. -- Order reversed.
This opinion will not be published. See Rule 809.23(1)(b)4, Stats.
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