Evans v. State


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Docket Number: 2007-KM-00443-COA
Linked Case(s): 2007-KM-00443-COA ; 2007-CT-00443-SCT ; 2007-CT-00443-SCT

Court of Appeals: Opinion Link
Opinion Date: 10-28-2008
Opinion Author: BARNES, J.
Holding: Reversed and Remanded

Additional Case Information: Topic: DUI first offense - Exclusion of expert testimony - M.R.E. 702
Judge(s) Concurring: King, C.J., Lee, P.J., Irving, Ishee, and Roberts, JJ.
Non Participating Judge(s): CHANDLER, J.
Dissenting Author : Carlton, J., with separate written opinion.
Dissent Joined By : Myers, P.J., and Griffis, J.
Procedural History: Bench Trial
Nature of the Case: CRIMINAL - MISDEMEANOR

Trial Court: Date of Trial Judgment: 02-20-2007
Appealed from: MONROE COUNTY CIRCUIT COURT
Judge: Thomas J. Gardner
Disposition: CONVICTED OF DUI (FIRST OFFENSE) AND SENTENCED TO FORTY-EIGHT HOURS IN THE CUSTODY OF THE SHERIFF OF MONROE COUNTY, SUCH SENTENCE SUSPENDED IF DEFENDANT DOES NOT VIOLATE ANY FEDERAL OR STATE LAWS FOR SIX MONTHS; FINE OF $1,000
District Attorney: ROBERT DON BAKER
Case Number: Cr07-042

Note: This opinion was later affirmed by the Supreme Court on 1/21/2010, but the SCT found error in part of the COA's reading of a particular case. See the SCT opinion at: http://www.mssc.state.ms.us/Images/Opinions/CO58995.pdf

  Party Name: Attorney Name:  
Appellant: MARY REED EVANS




JOSEPH JOSHUA STEVENS



 

Appellee: STATE OF MISSISSIPPI OFFICE OF THE ATTORNEY GENERAL BY: LADONNA C. HOLLAND  

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Topic: DUI first offense - Exclusion of expert testimony - M.R.E. 702

Summary of the Facts: The Justice Court convicted Mary Evans of driving under the influence, first offense. Evans appealed to circuit court which came to the same result. Evans appeals.

Summary of Opinion Analysis: Evans argues that the trial court erred in excluding expert testimony and that the case of Porter v. State, 749 So. 2d 250 (Miss. Ct. App. 1999) precludes testimony relating to the amount and timing of the consumption of alcohol that would provide the necessary basis for the expert’s opinion on the possible BAC of Evans at the time she was operating her vehicle. The officer pulled Evans over at 12:50 a.m., but Evans’s BAC was not tested on the Intoxilyzer 8000 until 1:58 a.m., resulting in an approximate one-hour delay since the time she was pulled over. The machine determined Evans’s BAC to be .09%, or .01% over the legal limit. Her expert proffered testimony on retrograde extrapolation, which has been explained as a scientific method of making a determination of the BAC at a particular point in time by predicting an earlier unknown value by calculating a known later value with a series of generally used average values, and projecting that result back in time. The expert described it as a “mathematical relationship” related to whether Evans was in the absorption or metabolism phase of ethanol ingestion. The defense sought to establish, through the expert’s testimony, that from the time she was stopped by the officer until the time of the test, Evans’s BAC was rising, as she was in the absorption phase of ethanol ingestion. The circuit court judge erred in excluding evidence of Evans’s alcohol consumption and the expert testimony. The expert’s testimony was relevant where there was approximately a one-hour delay between the time she was pulled over and the time she was tested, and her BAC level was only .01% over the legal limit. In addition, the circuit court misapplied Porter as the basis for excluding the evidence. In that case, there was no issue regarding a lapse of time between the defendant’s arrest and the test. Porter stands for the proposition that in a DUI per se case, the defendant cannot offer evidence regarding whether or not he was under the influence which would impair his ability to drive a vehicle. Porter does not hold that in a DUI per se case, evidence regarding the consumption of alcohol cannot be introduced to prove whether or not the defendant was at a certain BAC when he was driving a motor vehicle. In the instant case, Evans was not offering evidence of her consumption of alcohol and the expert’s testimony on retrograde extrapolation for the purpose of proving she was not impaired when she was pulled over. Instead, she offered it for the purpose of proving that she did not have a BAC of .08% or over when she was pulled over; thus, she did not violate section 63-11-30(1)(c). The State argues that the expert was not qualified. However, the prosecutor made no attempt to challenge the expert’s qualifications as an expert in either “ethanol ingestion in the body” or “retrograde extrapolation,” and the State is not allowed to litigate a new issue on appeal. In addition, the expert was qualified under M.R.E. 702. He is a registered mechanical engineer with a bachelors and masters of science in mechanical engineering, has taught courses in internal combustion engines and statistics at Mississippi State University for approximately forty-four years, has engaged in scientific studies of the effect of ethanol on the body, and has served as an expert witness in DUI cases on blood alcohol content methods and calculations.


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