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Rust v. State12/6/2000
MEMORANDUM OPINION AND JUDGMENT
[No. 4312 - December 6, 2000]
Appeal from the Superior Court, Third Judicial District, Anchorage, Milton M. Souter, Judge.
On January 9, 1995, William A. Rust was driving from Eagle River to Anchorage in a Ford Bronco. He was traveling west on DeBarr Road when he crossed into the eastbound lanes and struck Gayle Berube's car head-on. Berube died within minutes of the crash, and her son suffered a fractured pelvis.
Rust was taken to Providence Hospital for observation and testing about forty-five minutes after the accident. Two blood tests were taken which revealed that Rust's blood alcohol level was above the legal limit, at .169 and .177.
A grand jury indicted Rust on one count of manslaughter, one count of third- degree assault, one count of driving while intoxicated, and one count of driving with a suspended, revoked, or limited driver's license. The case was set for trial before Superior Court Judge Milton M. Souter.
Three days before Rust's trial, the state gave notice that it would call an expert, Dr. Michael Propst, who would testify about the number of drinks that a person would have to consume to reach certain blood alcohol levels and the physical effects of alcohol at those levels. Rust's trial attorney objected to the late notice. He told Judge Souter that, in his opinion, Dr. Propst was very conservative about the blood levels at which a person could safely operate a motor vehicle. He moved to exclude Dr. Propst's testimony, arguing that he would not have time to look for an expert. Judge Souter denied the motion to exclude Dr. Propst's testimony. The attorney did not move for a continuance.
Dr. Propst testified at the trial and Rust was convicted. Rust appealed his convictions to this court, arguing that Judge Souter erred in refusing to preclude Dr. Propst's testimony. We affirmed the convictions.
Rust then filed an application for post-conviction relief in which he claimed that his counsel was ineffective for not asking for a continuance, for conducting an inadequate cross-examination of Dr. Propst, and for not calling an expert witness to counter Dr. Propst's testimony. Rust argued that his attorney should have called Dr. Michael Hlastala to testify concerning the evidence of Rust's intoxication. Judge Souter conducted an evidentiary hearing on Rust's application. Both Rust's trial attorney and Dr. Hlastala testified at this hearing.
Rust's attorney testified that his decision to not ask for a continuance was tactical. By not asking for a continuance he was able to move to exclude Dr. Propst's testimony and was able to preserve the denial of this motion for appeal. He testified that he did not believe an expert could help him "diminish the inculpatory implications of a .17 blood alcohol test result." The attorney also testified that, having heard Dr. Hlastala's testimony, he would probably not have called him. The attorney indicated that Dr. Hlastala's testimony might have opened the door to allowing the state to prove that Rust was actively consuming alcohol as he drove. Furthermore, cross-examining Dr. Propst about absorption rates of alcohol would have raised the same problem.
The defense attorney testified that there was evidence (a beer can) that Rust was drinking in the car, and he did not want the jury to be presented with evidence which supported the conclusion that Rust had been drinking while he was driving. Dr. Hlastala's testimony that Rust's blood alcohol level might have been as low as .10 at the time of the collision appeared to have turned on an assumption that Rust might have been consuming alcohol shortly before t
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