Opinion
No. 14-02-00621-CR
Memorandum Opinion filed September 25, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the County Criminal Courtat Law No. 12, Harris County, Texas, Trial Court Cause No. 1048785.
Panel consists of Justices YATES, HUDSON, and FROST.
MEMORANDUM OPINION
This is a driving-while-intoxicated case in which appellant challenges the trial court's denial of his motion to suppress the State's expert testimony regarding retrograde extrapolation of his breath-test result. We affirm the trial court's judgment.
I. Factual And Procedural Background
Appellant was charged by information with misdemeanor driving while intoxicated. Upon learning that the State planned to use expert testimony regarding retrograde extrapolation of appellant's breath-test result, appellant filed a motion to suppress this evidence. At the hearing on appellant's motion, appellant and the State agreed that the issues on the motion to suppress were limited to whether the named expert, Ricky Viser, was qualified to apply the theory of retrograde extrapolation and whether he properly applied retrograde extrapolation to the issues in this case — that is, whether Viser had sufficient factors under Mata to provide reliable testimony. For the purposes of the hearing, the parties agreed to the following set of facts:(1) Appellant weighed 215 pounds at the time of the offense;
(2) Police officers stopped appellant while he was driving at 3:54 a.m.;
(3) Appellant took a breath test at 4:52 a.m. that showed an alcohol level of .082;
(4) Appellant took a second breath test at 4:55 a.m. that showed an alcohol level of .081;
(5) Appellant had his first drink at 9:30 p.m. and his last drink at 2:00 a.m.; and
(6) Appellant ate pancakes at 3:30 a.m.Viser, who was the only witness at the suppression hearing, testified as follows:
* Viser has a bachelor of science degree from Prairie View A M University.
* Viser has worked as a technical supervisor for the Houston Police Department's breath-test program for seven years.
* As part of his duties, Viser protects the integrity of the breath-test program.
* Viser is a certified technical supervisor as well as a certified breath-test operator.
* In the course of his training, Viser has learned about the effects of alcohol on a person's mental and physical faculties.
* At annual meetings of the technical supervisors, Viser has participated in tests in which men and women of different weight and height are given different amounts of alcohol, breath tests are performed on the subjects, and the technical supervisors perform retrograde-extrapolation calculations on the test subjects.
* Retrograde extrapolation is "a back estimation of a measured amount of ethanol related back to the time of driving."
* In performing retrograde extrapolation, one must take into account absorption and elimination.
* Absorption describes the process by which a person takes alcohol into his body and the alcohol is distributed throughout the body. During absorption the alcohol concentration is usually increasing.
* Elimination is the process by which the body metabolizes the alcohol in the liver. During elimination, the alcohol concentration is decreasing.
* In performing retrograde extrapolation, one needs to have some of the following factors: the time of the stop, the time of the test, the amount of alcohol measured in the test, the subject's gender and weight, whether the subject had eaten, and the times of the subject's first and last drink.
* There are some risks of error with extrapolation; however, the risk depends on the number of facts available.
* A subject with the stipulated characteristics of appellant would have had a breath alcohol concentration from 0.09 to 0.10 at the time he was stopped, if he was in the elimination phase at the time of driving.
* A subject with the stipulated characteristics of appellant would have had a breath alcohol concentration of 0.08 at the time he was stopped, if he was in the absorption phase at the time of driving.
* If a subject has recently eaten, the food tends to slow down the rate of alcohol absorption into the body.
* Viser used a constant 0.02 elimination rate in his calculations.
* The relevant literature indicates that a person's elimination rate may range from 0.0125 to 0.025 and that the average elimination rate is 0.18; however, most experts use a 0.02 elimination rate, which is equivalent to one drink per hour.
* Based on the number of factors given in the hypothetical concerning the stipulated characteristics of appellant, Viser has a high degree of confidence in his calculation.
* A hypothetical 215-pound man would have an absorption rate of 0.14 per hour.
* Viser uses a standard elimination rate but varies the absorption rate based on the characteristics of the subject.
* Viser did not base his calculations on the type of alcohol consumed or the number of drinks consumed.
* Viser would take it into consideration if the subject had consumed 10 ounces of grain alcohol and was stopped an hour later.
* The quantity of alcohol consumed is a major factor.
* The quantity of food consumed is irrelevant; however, the presence and type of food are relevant.
* Viser has done extensive studies in extrapolation.
* Viser does not believe he receives The Journal of Toxicology and Environmental Health.
* The more food ingested by the subject, the more the food will slow the absorption rate; however, Viser still believes his calculations are reliable even if he does not know the amount of food eaten because, if the subject ate food, he believes he can reliably take the food into account, as long as he knows when the subject ate the food.
* Although two breath tests were taken, the results were "pretty much the same."
* Viser believes the man in the hypothetical, based on the stipulated facts regarding appellant, was in the elimination phase, and Viser believes he can determine whether a subject is in the elimination or absorption phase even if he only has a single breath test.
* Viser does not know the actual amount of water that was in appellant's body at the time in question; however, Viser took this into account based on average amounts of water in men and based on appellant's weight.
* Retrograde extrapolation is not difficult; one cannot make an exact prediction, but one can definitely estimate within reason.
* Viser did not take appellant's mental state into consideration in making his calculation, and Viser believes mental state has nothing to do with this calculation.
* Even without knowing the amount of alcohol and food ingested, and without knowing the subject's drinking history or mental state, Viser believes he can establish an accurate rate of absorption.At the conclusion of the suppression hearing, the trial court denied appellant's motion to suppress. Under appellant's agreement with the State, appellant pleaded guilty with an agreed recommendation that punishment be assessed at confinement in the Harris County Jail for three days and a fine of $1,000. The trial court assessed punishment in accordance with the plea agreement and expressly permitted appellant to appeal its denial of appellant's motion to suppress.