The Minnesota DWI Case of the Week is State v. Pexa (Minnesota Court of Appeals, Unpublished, decided February 24, 2013) which stands for the proposition that in order to convict someone of having an alcohol concentration of .08 or more, the State must prove either that: the test sample was obtained within 2 hours of driving or have expert testimony concerning retrograde extrapolation of a person's blood-alcohol concentration. Since the State in Pexa failed to do either one of the above, the Court of Appeals reversed the conviction.
In Pexa, the Defendant was driving his car when he hit an ATV and severely injured the ATV driver. The accident occurred shortly before 10 p.m. When the police arrived at the scene, the officer noticed the Defendant exhibited indicia of alcohol consumption. The officer gave the Defendant field sobriety tests and placed him under arrest for DWI. The Defendant was subsequently taken to a hospital where he submitted to a blood test. The blood sample was not collected until 12:05 a.m. and revealed an alcohol concentration level of 0.09.
The Defendant was charged, with two counts of Criminal Vehicular Operation (i.e. Causing injury while operating a vehicle with an alcohol concentration of 0.08 or more, and; Causing injury while operating a vehicle with an alcohol concentration of 0.08 or more within two hours of driving).
On the first day of trial, the District Court found that the State violated the rules of discovery by failing to disclose that its expert would be testifying about retrograde extrapolation of a person's blood-alcohol concentration. The court concluded that because of the discovery violation, the state's expert could not testify on that topic.
The Defendant was subsequently convicted of the criminal vehicular operation statute that required the State to prove he caused "injury to another as a result of operating a motor vehicle while having an alcohol concentration of 0.08 or more".
On appeal, the Defendant argued that because his alcohol concentration was shown to be 0.09 more than two hours after he struck the victim and because the state did not introduce any retrograde-extrapolation evidence, the jury could not infer that appellant's alcohol concentration was at least 0.08 at the time of the accident. The Minnesota Court of Appeals agreed with the Defendant and reversed the conviction.
The Court of Appeals explained:
"The state argues that the evidence was sufficient to sustain his conviction because a jury could reasonably infer from the evidence presented that appellant had an alcohol concentration of at least 0.08 at or within two hours of driving. But disputes about alcohol consumption are different from alcohol concentration. Assuming sufficient foundation, a lay witness could testify that a person seems 'drunk' based on any commonly observed indicia of drinking. Thus, factual disputes about alcohol consumption could be resolved by a jury hearing such a lay witness. But specific numerical alcohol concentration is a scientific matter. In order to determine alcohol concentration, specific levels of alcohol concentration are introduced through experts who have specific knowledge of anatomy, chemistry, physiology, and timing. For example, what may not be commonly known is that an individuals's alcohol concentration may actually rise for a short time after the individual has stopped drinking. See, State v. Favre ('Because it takes time for alcohol to reach the blood stream, blood alcohol concentration typically peaks some time after drinking.'). And there are countless variables and scenarios apart from the amount of alcohol consumed that affect a person's alcohol concentration at any given time. Therefore, it would be impossible for a lay jury to infer a precise level of alcohol concentration at a specific point in time-here the exact time of the accident-without the aid of qualified expert testimony."
Since the State's expert was precluded from testifying because the State failed to abide by the Minnesota Rules of Criminal Procedure and because the blood sample was not obtained within two hours of the accident, the Minnesota Court of Appeals correctly reversed the conviction.
Moral of the Story: When The State Does Not Play By The Rules, It Deserves To Lose!!