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Seifert v. State8/5/1999
cal question regarding ingesting different types of alcohol and which drinker would "have the strongest odor of alcoholic beverage on their breath?" The State objected that the question was irrelevant. The trial court sustained the objection. Later, the defense again questioned Hiney on whether he knew if the odor from an alcoholic beverage was a "good or poor indicator of how much alcohol . . . a person has consumed . . . ." Hiney answered he did not know.
In his fourth, fifth, and sixth points of error, appellant contends the trial court erred in sustaining the State's objections to his questioning Hiney about absorption and elimination rates. On recross, appellant questioned Hiney on his knowledge of the absorption and elimination rates of alcohol consumption. With each question, Hiney answered that he was familiar with the absorption rate, but didn't know about an elimination rate. He consistently stated he did not know whether "a person's blood alcohol level" was going up or down at any given time.
The first complained-of excluded testimony occurred as follows:
[COUNSEL]
"Now, Mr. Hiney, you don't have any idea whatsoever based on training and experience as to whether a person's blood alcohol level is going up or down in the 30 minutes to hour between the time they are arrested and the time they take the test or they are on the video. You don't have any knowledge about that?"
[STATE]:
"Your Honor, I will object. It's irrelevant to this case."
THE COURT:
"Sustained."
Next, appellant complains that the trial court erred in sustaining the State's objection to the following:
[COUNSEL]:
"All right. Would you know if I explained it to you this way, that that indicates a person's blood alcohol level is going down?"
[HINEY]:
"If you say that is what it is."
[COUNSEL]:
"All right. Would you know whether or not an individual at any given point in time is in the absorption phase or elimination phase?"
[STATE]:
"Your Honor that calls for speculation."
THE COURT:
"Sustained."
When appellant proposed a hypothetical question on when the blood alcohol level would be the highest, he concluded with " o you think at 12:
05 I would be intoxicated?", the State objected to speculation. The trial court sustained appellant's objection. Later, outside the presence of the jury, appellant perfected his bill of exceptions as follows:
[COUNSEL]:
"Do you have any information or knowledge -- let me give you an example. Do you remember the example I gave you while ago? Let's say I take that bottle of vodka up there, and it's full, and I chug-a-lug it at 12:00 noon. And you stop me driving a car at 12:05. You know, five minutes after noon?"
[HINEY]:
"Uh-huh."
[COUNSEL]:
"I go and take a breath test or a blood test at 1:00, an hour later. When do you think my blood alcohol level is going to be highest? When you stopped me at 12:05 or when I take the blood test or breath test at 1:00 p.m.?"
[HINEY]:
"That I don't have any knowledge about."
[COUNSEL]:
"Okay. And on the occasion in question you don't know whether or not my client was in the -- assume that the absorption phase means your blood alcohol level is going up. Okay?"
[HINEY]:
"Uh-huh."
[COUNSEL]:
"And assume the elimination phase means your blood alcohol level is going down. At the t
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