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State v. Larson12/7/2004
the three phases a person would be in at the time of a BAC test, assuming the person quit drinking at 2:00 a.m., was in a wreck at 3:30 a.m., and was tested at 5:43 a.m, Kurtz testified an individual in such a scenario would be in the elimination phase, having totally absorbed the alcohol into his or her system earlier. Moreover, Kurtz stated a person's peak alcohol level would be reached sometime within a half hour to an hour and a half after the person stopped consuming alcohol. Kurtz refused to ascribe a specific number to Larson's blood alcohol concentration at the time of the accident.
On cross-examination, Kurtz agreed with Larson's counsel it was not scientifically possible to state what Larson's blood alcohol levels would have been two hours before the test. Kurtz stated using the results of a delayed test to determine a person's blood alcohol at an earlier time by adding on the average metabolic destruction of alcohol during the period of delay was against state crime lab policy. Kurtz testified he did not engage in this retrograde extrapolation but, given the time intervals, he could state Larson would have been in the elimination phase at 5:43 a.m., nearly four hours after the last consumption of alcohol.
At the conclusion of the trial but before deliberations, the parties submitted proposed jury instructions to the District Court. During the settling of jury instructions, Larson objected to the State's Instruction 19 which defined criminal negligence as follows:
A person acts negligently with respect to the death of a human being or to a circumstance when an act is done with a conscious disregard of the risk that death of a human being will occur or that the circumstance exists or when the person disregards a risk of causing the death of another human being which the person should be aware that the result will occur or that the circumstance exists.
The risk must be of a nature and degree that to disregard it involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation. 'Gross deviation' means a deviation that is considerably greater than lack of ordinary care.
Larson objected to the instruction on the grounds the word "consciously" should have been inserted before the word "disregards" in defining criminal negligence. The court rejected Larson's objection, stating, "I believe the Court's Instruction is the definition, as provided by the Statute."
After its deliberations, the jury returned verdicts of guilty on all counts. Judgment was entered on April 25, 2003, convicting Larson to seven years in prison, all suspended under certain terms and conditions. Larson appeals.
ISSUE ONE
Whether the District Court erred in its ruling admitting the testimony of the State's blood alcohol expert.
Larson argues the District Court abused its discretion when it permitted evidence concerning his blood alcohol at trial. Larson maintains the District Court violated its own order by allowing the State's expert to offer an opinion Larson, at the time his blood draw was taken, had reached and passed "peak alcohol." Larson contends all evidence involving retrograde extrapolation was prejudicial, against the State Crime Lab's own policy and in direct contravention of the District Court's motion in limine.
The State counters its expert did not engage in back extrapolation because he did not attempt to use the results of the delayed blood draw to specifically determine Larson's blood alcohol at an earlier time. The State maintains its expert stated only that, given the time intervals, Larson would have been in the elimination phase after the accident.
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