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Guerre-Chaley v. State4/9/2004
ependent blood test, one could infer that her blood alcohol level was significantly lower when she was stopped by the police.
We reject this claim of error for two reasons. First, Guerre- Chaley has failed to adequately brief it. Guerre-Chaley's "argument" of this point consists of four conclusory sentences - two of them found on page 4 of Guerre-Chaley's brief, and the other two found on page 9 of her brief. Guerre-Chaley does not discuss the wording of the challenged instruction, nor does she offer any explanation of why she believes that the instruction prohibited the jury from considering her theory of the case. This kind of briefing constitutes an abandon- ment of the claim of error.
Our second reason for rejecting Guerre-Chaley's claim of error is that we have examined the challenged instruction and it does not, on its face, prohibit the jury from considering the testimony of Guerre- Chaley's expert and the defense theory that Guerre-Chaley's blood alcohol level was below 0.080 percent at the time she was driving. We note that the defense attorney in fact argued this chosen theory of defense ("retrograde extrapolation") to the jury, and the prosecuting attorney never objected to the defense attorney's argument or suggested to the jury that this argument was inconsistent with the law contained in the jury instructions.
To summarize:
We hold that even though Evidence Rule 703 states that expert witnesses can sometimes rely on underlying data that would not be independently admissible, if that underlying data is derived from scientific tests or methods, those scientific tests or methods must meet the Daubert-Coon test for admissibility.
And we conclude that Guerre-Chaley's jury instruction claim is both inadequately briefed and meritless.
For these reasons, the judgment of the district court is
AFFIRMED.
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