court counsel my name is amorous stanek from the office of the state of ca defender i represent the defendant appellant garland beals in this case the state told the jury ladies and gentlemen it's as simple as that point nine is higher than point eight that's how they argued they said to the jury look at the commonsense argument and yet in this case because of the judge's ruling in the motion and lemony the defense was not allowed to do the same they were not allowed to make a common sense argument drawing an alternate conclusion this issue is simple enough for the state to argue that it was simple but it was too complicated for the defense to challenge that this is the crux of this case a defendant should have every opportunity to present evidence which might tend to create doubt as his guilt this case is about the most basic right to present a complete defen including the right to present evidence and the ensuing right to argue a reasonable inference from that evidence the state brings up this issue of retrograde extrapolation the definition of retrograde extrapolation is that it's a scientific mathematical process used by chemists and talk to the colleges to estimate what a person's blood alcohol concentration was at a specific moment in time based on test results obtained at a later period of time this case is not about retrograde extrapolation the defense never sought to introduce any estimation of what his blood alcohol content was at a specific time that's because it wasn't the state it wasn't the defense's burden to do so no estimates no calculations no mass no science nothing to date the still there argument down to the simple math point nine is greater than point eight therefore he is guilty the state had no idea what mr beale's actual blood alcohol concentration was while he was driving the state based their case on an inference an assumption the jury was going to make they were going to draw from the point nine breathalyzer given an hour later at the station and the state had to call in the the jury to make this inference no one was in the car with mr bills while he was driving giving him a breathalyzer test at the time he was driving and that was what they had to prove based on the statute the state didn't have an expert either to make an actual backward calculation to say to the jury hey his blood of the whole concentration was x therefore they had to have the jury make that inference and they suggested it was simple point nine is higher than simplistic explanation would have been called into question instead they were allowed to argue ladies and gentleman it's as simple as that but this is really misleading because in reality as the trial court pointed out it wasn't actually a simple as that in the motion in limine in their ruling the court said who knows whether the concentration was rising or falling or staying the same or falling and rising or going every which way and yet the trial cour ruling cleared the way for the state to take advantage of the facts and ignore any complexity that might be present premise its argument on the idea that his guilt was as simple as the fact of that point nine  hour later therefore he must have been over the legal limit and earlier it should not of been the defense and burden to secure some kind of scientific evidence to prove beyond a reasonable doubt that there are alternate and find that there are alternate theory of the case was the one scientifically correct theory i'm going to sound kind of like a broken record but the burden was on the state they had to prove beyond a reasonable doubt and so if the state was allowed to distill that argument to commonsense argument that the defense should have been allowed to do the same i kind of think of that old idiom what's good for the goose is good for the gander but the trial court did not allow the defense to raise the inference that they sought to raise the defense never sought to skirt any of the rules of evidence as the state suggested in its response they never saw the sense never sought to argue that his blood alcohol concentration must have been lowered or that it must've been a point seven or a point six or introduce any kind of scientific calculation or estimation of his actual blood alcohol concentration the only sought to argue that when there was one test  dollars and one dollar test an hour later at point nine may have been rising it was a common sense argument to challenge the state's commonsense argument here is evidence which might tend to create doubt tend to create doubt as to his guilt this is about the right to present a complete defense this includes the right to present evidence and argue a reasonable inference from that evidence as of final matter this error wasn't harmless beyond a reasonable doubt to a jury that single station brussel as their test result may have been a strong piece of evidence left completely on challenge when the judge made a thrilling on the motion in limine and so response this issue is irrelevant to the impairment count which is the actual count westerfield's the sentence on however that's not accurate and i respectfully disagree the jury was directly advised that if they found his blood alcohol concentration above point eight while driving the set inference comes into play they could presume he was under the influence that's the way that the statute reads it shall be presumed he was under the influence if they find his concentration was point eight bile driving and a harmless error analysis is the state's burden to prove beyond a reasonable doubt the verdict what is missing because of that presumption there's just really no way to know how the jury ultimately determined to and for this reason the trial court erred when it granted the state's motion and let me and i would welcome any questions that the panel me justice bridges many questions i do thank you mr manning isn't an expert required to lead a foundation that a breath of alcohol level of point zero weight and one taking an hour later to show this reason for that is that the defense was not trying to prove what his blood alcohol content was it wasn't the defense's burden to say hey look at this it had to be linear it had to be linear from the time he was driving it had to be linear to the point nine therefore it had to be you know point seventy nine or point seventy eight that just was not what the defense was trying to do had they tried to do that had they tried to say hey look it w point seven will give some kind of extrapolation scientifically based argument then yes they would have had to have an expert but instead they were simply trying to challenge the state's inference that simple as that point nine means that he's guilty an hour earlier the point eight simply called into question and said hey there's an alternate theory here there's an alternate theory that it may have been rising it may have been less when he  this would be speculation on the part of the defendant would it not i would argue that it's no more speculation than the speculation that the state was calling on the jury to make essentially whether it's speculation or some kind of inference the state needed the jury to believe that point the point nine that his blood alcohol concentration would have been at least point would have been at least point eight while he was driving it must have been either staying the same it may have been falling the state put up this idea that required some kind of inference assumption speculation on the part of the jury and so with regard to  what the defense should have been allowed to do it's it's understood that a party against whom an adverse inference has been drawn should be allowed to argue that the inference was inappropriate and so in that sense it's no more speculation that what the what the state was already requesting the jury to do based on their argument that it was a simple issue it could be simply resolved with this single proselytizer test an hour later but didn't the defendant in fact get to make that argument the change in the blood alcohol level between the two test coupled with the ten percent margin of error created reasonable doubt so isn't this in fact he was allowed to make that argument which is the sole issue before court you're on it's x that's actually a different argument and it does not allow and it does not allow the defense to present the evidence that may have tended to support it arguments for example had they been allowed to to raise the point eight and argue the inference then that margin of error would have been that much more compelling to the jury this is about  really a criminal defendant being entitled to have that jury consider any theory of the defense and that's the case u s versus cheek that they should be allowed to consider theory supported by law which has some foundation in the evidence however tenuous and so while they may have been able to challenge the state's theory in this limited fashion of saying hey there could be this margin of error that is not nest that is not at all gets to the point of being able to really effectively call into question  i think you found so just as a crime no for the question thank you justice jorgensen do you have any questions test given at the roadside ten minutes after he was pulled over and a point nine result an hour later is blood alcohol concentration may have been rising thus it may have been less than w the because the extrapolation is a scientific argument that seeks to determine and stick to give an estimation of what a blood alcohol concentration was at a given point in time and the defense never sought to argue that his blood alcohol concentration was a point seventy eight or zero seventy nine or based on the dinner that he had beforehand he probably wasn't intoxicated or  that there was any kind of scientific attempt to state you know that this is exactly what his concentration was it was simply an attempt to counter the state's inference that they were trying to get the jury to make to argue an alternative interest an alternative and friends not that it had to be rising not that it must have been rising not that it once of been going up and down in every which way but simply to counter the is only requiring an expert when you want to pin point a blood alcohol yes our position is that you really only require an expert when you're basing it on aren't you one of saying well it had to be something less than eight and i don't sure let me let me try i think i understand your question thank you for being patient with me the defense was never saying it must have been this way the defense was never saying it must have been rising  the defense was trying to challenge the state's inference they were trying to say it may have been arising this this is evidence that might tend to call into question the state's position not that it must have been rising not that it had to have been less than point but just to call that inference into question that is that answering your question but here's the point you begin to say it's rising or it's welling there are but neither did the state have any scientific evidence to base its position on the state didn't have anything to suggest what his blood alcohol concentration actually was while he was nine was greater and the state wasn't allowed to present any evidence that tended to show tended to even indicate that it may not have been that tended to call into question the doubt of his guilt that was the error by the  court it can't be said on the one hand so simple that the state can make their argument which was allowed by the court and yet it was so complicated that the defense could keep going to call into question the certainty with which the state has been at their argument i apologize give me one minute the point you know had they been allowed to argue the inference they what as in should do step point eight test result and so presumably the defense would have then made that argument made argued it now in closing i should be able to respond to that argument i don't i don't believe so i think because the at least my understanding was that the trial court's ruling on going to point out earlier that the that the defense made a very specific offer of proof in order to preserve the issue i know at one point it was on page two hundred and forty five they they brought that up to i do not believe that they brought it up in the middle of closing arguments just based on my recollection of the transcript but it was after trooper williamson gave his trial testimony the defense made the offer of proof outside the presence of the jury that and the judge coco noted the defense counsel is continuing objection to the court's ruling and noted for the record that had he ruled differently on that motion in limine e that the defense would have presented that it is not static in so far as what alcohol level how do we know whether it rises or falls or remains linear and then just disappear we don't know we don't know well we know supposedly because experts get on the stand to tell us that do they not yes yes they do and so in order to lay a foundation for the premise that it is even possible or in this reality of this world that you will have a rise or a following trend has to be established by an expert because i can't if i were the trial judge well maybe i could maybe i could take judicial notice of extrapolation but you you are almost begging the question to the extent that the premise that you're raising is based upon a scientific theory that is established by expert testimony and so without the expert testimony it's pure speculation for juries to decide whether or not it's going up and if so to what extent and that's what justice circling around like indians attacking a wagon train is that your premise is that if things rise or fall the jury is supposed to be able to take that into consideration and the point is that without expert testimony we don't know what that means we don't even know if it's valid you see the problem with your argument that you need an expert to stablish the existence of the theory that there is such a thing as give me an ocean of blood levels over time your honor if i may respond to that just with regard to the foundation issue when the state called trooper williamson to the stand he did testify that blood alcohol concentration is a dynamic state it's not static and that it changes over time so no there was no scientific evidence presented by either the state or the defense saying that it had to stay the same that it's been namak that it goes every which way and yet the trial court seems to put the burden on the defense to say you needed to have brought in the scientific expert were in order to prove your case when williamson laid that sort of basic idea that basic foundation in the minds of the jury presumably that it's a dynamic it's not that it could change he didn't say how it could change he didn't say which way it could go he didn't stay the same or going all over the place and yet the state's argument in closing was it simple point nine is greater than point zero if it's simple it's simple and so the the the the crux of the argument is really that the defense should have been allowed to introduce that point and argue the alternate inference it's not that simple even based on the state's own witness it can change and this is one suggestion of the way it might be changing this calls into question the idea of his guilt based on that sole point nine breathalyzer from an hour later and so that's kind of the crux of the argument you know there was a possibly of any kind of scientific evidence in this case  that's the son that's understood we absolutely understand that but it should not have been the burden on the defense to produce that scientific bas sure and the defense's theory is no more or less viable than the state's theory that they were allowed to argue that in fact it's potentially more viable because they're using two points in time as opposed to simply the one brussel as a test and that all goes to the weight of the oven and so it all goes to what might be in the minds of the jury in terms of are they just got to think it's as simple as that point nine or can they take a look at williams's testimony is say hey it might have been changing and based on the difference between these two numbers it might have been changing and going up and that was that's all the defense was trying to say i have no further questions and will have any questions in response to the questions  sentenced to court supervision and the a two impairment count this court should not rule at the defendant's issues because he was never convicted under driving under the influence of driving under the influence of alcohol and he was opposing counsel did give the definition brush great extrapolation is the scientific process typically used by cas toxicologist to a point opine on what a person's blood alcohol content was at a specific time based on test results obtained later in time and at trial the defendant raised issue with the trial court evidentiary ruling saying that foundation was not required to argue with scientific method what alcohol content is a complicated scientific manner that requires expert testimony factors like age weight alcohol tolerance type of food the person's eaten type of alcohol  consumed length of time he was drinking the time between his last strengthen the test the the way and to what extent those factors and packed a person's absorption and elimination of alcohol that's not common knowledge and that's why the trial court was correct when it required the foundation for a defendant to argue this complex scientific process and just as george mentioned touched on and he was not trying to pinpoint the defendant be a c u while he was driving but was relying on the substantially similar scientific basis necessary to conclude what the defendant was calling this upward a one per se tell case was well settled that we may use the press testers circumstantial evidence to prove that a defendant was driving with the ac of quite a weight or greater and that the timing of the test goes to the w viewed in light of the surrounding circumstances here we had a point nine at the station now defendant was free to introduce and argue his own circumstantial evidence but he didn't call an expert for whatever reason and without calling an expert the only evidence the defendant was not allowed to admit was opinion testimony and argument that required the jury to estimate the defendant's what alcohol concentration at the time he was driving was able to great that he attacked their reliability of the b a c results he pointed out that the results were from almost an hour after being pulled over and he argued that sapped the possible know even if their owners accept the defendant's argument that any error was harmless the evidence showed beyond reasonable doubt that the jury would have come to the seeing conclusion after an error that the defendant was driving under the influence of alcohol ray o'clock in the morning the defendant was speeding in front of a fully murs was that driving that the jury had the opportunity to see drinking the jury found those circumstances prove that he was driving while impaired and the additional evidence of the defendant blowing a point nine at the station does support that he was up when a waiter grader at the time who was driving the people would submit that these issues they're not appealable before your honor's but even if you do consider them the trial court out of these discretion when it requires a defendant to lay the foundation for an expert we ask that you uphill the trial court's ruling thank you was on the ri inference jury could make is the situation without the bar and he gives an example of and i'm looking at the records are ninety about the sun shining he said that you don't need an expert to say that the sun comes off but you need an expert to say that this should sun shine so brightly and i think that's the difference between what the what would be required and this case here did defendant have an opportunity to make that argument in closing argument  in i would note that van opportunity was also discussed at length and it was clearly demonstrated throughout the record that he understood that he had that opportunity he could have introduced the point eight st at the beginning there was a motion to suppress he was able to suppress the point eighty four p b t he later decided that it might be something that he wanted to enter into nearly an hour earlier i would not i would not agree with that i i don't think we're asking the jurors to use of scientific process i think we're asking them to use their common sense and we don't have to put on an that you mean be a to analysis the impairment analysis to verify the analysis of being won by i think that it's important and vital for the jurors to be able to take into consideration the circumstances and i think that so they can use sir tom and sent to determine if they believe that the   don't have a blood alcohol it's the time of the stop the best to have a circumstantial evidence an hour later fifty six minutes yet here is a look at that and say well because what we have to prove as they say is that it was over in no way at the time he was driving right yes your honor and i would agree that that is the best evidence that we have we are not allowed to bring in the p b t under all the defendant chose not to so we don't argue that i would say that shy of nine then it's but that doesn't mean that he was over and always an hour earlier in other words you use circumstantial evidence to establish one of the elements but here the trial court said defense you can't use the same circumstantial evidence and make its counter arguments and i don't understand why that here in the course of an hour how much for liable i understand it could have done but what they asked to do was simply make the inverse arguments and why is it that the defense be precluded from simply making the inverse of the arguments of the statement am believe that the state was the people were very pointed and how they use the point nine an argument the statements that were made in the evidence the p b t the dependent it's up to the defendant whether or not he wants to and i know that it's up to the defendant my point is what's what's the rationale normally the point that i'm making and i'd like you to explain you know expand on it is a fact is a fact and they have one side can present it i mean this is what the defendant is arguing that if the state can make the argument then why why can't the defendant and i'm asking you a similar question relative to the admission of the onsight what is the reason why the state couldn't presented  i presented the nine and then there would be no issue about extrapolation unless the defendant put up a nine but then put up some expert to explain what the relevance is between eight  think in that case it would be too prejudicial p b t the reason why the state camp at mit into evidence the p b t is because it's prejudicial as opposed to not reliable as opposed to that the defendant wasn't given the opportunity to refuse i mean what's you know what the reason is or the reasons are this was discussed in me and initial motions in limine a hearing that the cli to the point that you were discussing that he didn't have the opportunity to refuse in in this situation that was the case why it was a sensually motion to suppress with grant so in this situation i would say that that would be the so reliability for the p b t is an equivalency for the  could you rephrase your question i'm sorry well the reason you gave doesn't necessarily include or exclude the differences in reliability and so far as the two tests are concerned  instance a field test for marijuana may be a lot looser or a lot less reliable or be much more sensitive than the test in a lab and so my question or the the point that i'm trying to get at is whether or not the p b t is less or more reliable are the equivalent is there any differentiation between the two that would indicate that one needs it a better foundation or a more extensive foundation than the other in order to present it as admissible evidence in your honor i if you don't know i said i don't know  were accurate of course i think that when it's on the street it's not it's not as reliable as something like that but to your point i i think that you know with our familiarity with these types of cases you know we get to know the lingo all more or less just by being around types of cases like the harbor i don't think that everybody is and so just because i'm not a scientist in a person that has common knowledge for people to know about these process  i have no further questions thanks state made and kind of the stadia that somehow the initial test was not as reliable i guess i just want to point out that there isn't anything in the record that would suggest that that would be the case  states motion to the defense motion to suppress was based on a th amendment violation the fact that he was not placed under arrest was not done incident to arrest and he was not given the opportunity to decline the breath test and so that was the basis i just i just wanted to clarify that that there's nothing in the record that says this was less reliable therefore it can't come in rather it was based on a th amendment violation the nd thing i just wanted to make clear is that no the defense did not have the opportunity to make that inference and argue their case in the closing i was able to find justice jorgensen the page in the record it was r two hundred and eighty three the state did make that statement in their opening argument of their closing and their initial argument for their closing argument i just wanted to let you know i was able to find  that but the state could not have argued that inference without going directly to the sense could not have argued that inference without directly going counter to the judge's ruling in the motion and limiting and the judge even pointed out why on earth would you introduce this point eight ruling if i'm not allowing sure kind of argue that inference what does that mean to the jury right and so the defense really was precluded from making this argument you know i  addressed in our reply this idea that the defense's argument is barred on appeal certainly this argument goes directly to the per se count but it absolutely affects both counts based on the presumption that the that the jury is allowed to make  as to the under the influence if the jury were just find that asked the time he was driving it was above the point eight the jury then can presume that he was under the influence and so this is not a harmless error specifically for that reason we have no idea of the weight that the jury gave that evidence that the state presented and so this entire issue you know both of these counts were tried together the jury found him guilty on both counts and how it and how much weight they gave that in determining the under the influence i think is absolutely critical because as a state pointed out there was evidence both ways certainly yes there was evidence of some bad driving but that's exactly the point there was also evidence that he knew where he was he didn't for his speech he wasn't confused you know he was he was correct about the date he noted it was me the middle of the night  it just changed the day three hours prior there was evidence on both sides and that's precisely the point that the state can't prove beyond a reasonable doubt that this idea that the that the defense is inability to argue their case asking the jury to agree that his blood alcohol concentration was over a point eight an hour earlier that's exactly what they have to prove for the per se count and again they're trying him on both  s if the state is not expected to prove a common sense argument why is this a common sense argument for the state it's common sense because they want to rely you know potentially on a late person's assumptions that  blood alcohol content maybe is highest when you're drinking and then go straight down from there we don't know what the jury's knowledge is we don't know what they're thinking but certainly the state wants to try to potentially take advantage of this idea that it is quote common sense maybe that it just goes straight down or that it stays the same etc but that's no more common sense than what the defense is trying to argue what the defense is trying to bring up and say hey just like the status think point nine is i think that i think that that's all i have your honour's in rebuttal just this bridge's do you have any questions i do not think you justice that's per quarter hour forty orders times four quarters equal one point or one digit and since it was less than one quarter hour from the test at the scene and the driving that would mean that at best the blood alcohol would be point  are going to go and get more significant figures seventy five dollars ways is that a reasonable conclusion that a jury might come to your honor i think it's a it's a reasonable conclusion that the jury could come to that there's some question there's some question that it's not as certain as the state wants to suggest i that's more math than i did and in reality we don't know how much his concentration went up in those ten minutes from when he was driving but at the risk of sounding like a broken record and i hope i am answering your question the defense doesn't have to know that because it was the state's burden of proof the defense again was not trying to say this is a directly linear correlation it went up exactly this amount based on his weight or height or or what have you they were only trying to say and it is a reasonable thing for the jury to infer that it may have been increasing based on the trajectory between these two numbers well you claim that  this is prejudiced your client that he couldn't argue with out an expert what the amount was just that there was an amount an x amount  mile and accepting the argument as presented if it's reasonable to assume that it was a quarter of a dispute based upon a linear degradation as opposed to a degradation that it would mean that the defendant blood level most assuredly was at least seven and a half and if it was seven and a half plus what the allegations or the factual evidence that was presented why wouldn't that in any reasonable doubt establish that impairment actually existed which means that what's the harm was there in this situation because i think it's unreasonable to accept the argument that because we don't know what the amount of in incremental increases that the jury could reasonably reasonably conclude that the blood alcohol level was point sure if i may we aren't arguing that the evidence may have been sufficient to convict him the question as to whether it was harmless error is not about whether there may have been sufficient evidence there may have been sufficient evidence but with a harmless error analysis the status to show beyond a reasonable doubt the verdict would have been the same the problem with this is we don't know how much weight that brussel lies are without being challenge that the jury might have determined his guilt they might not have even looked at the roadside test they might not have looked at the the trigger williamson's testimony about how he was coherent and no glassy eyes that cetera et cetera  there was evidence in this case the cut both ways and certainly you know again we're not saying we're not challenging that the state could not possibly have proven this beyond a reasonable doubt but the the prejudice to him is that the the nature and the weight that the jury may have given this breathalyzer test that went completely on challenge the state admitted in there and they're responding argument just now that this was their strongest piece of evidence the strongest piece of evidence and for the defense not to be able to call it into question not to be able to say hey there's some there's some doubt here not to be able to introduce that that was the president that was the one that was the what made this error not harmless for the