Oregon Supreme Court 5-10-2012

by: Abassos • May 11, 2012 • no comments

DUII - Retrograde Extrapolation is Admissible

The Supreme Court explicitly finds that an expert may project backwards from blood alcohol content at the time of a breath or blood test to the likely blood alcohol content at the time of driving. I.e., testify about the rate of dissipation in what is commonly known as retrograde extrapolation. Allowing such testimony is consistent with the requirement that the state establish .08% BAC or greater because the relevant point in time for the BAC is the time of driving, not the time of the test. In this case, the state used a BAC of .064 plus expert testimony to prove that defendant had a BAC of .08 or more at the time of driving.

Below the jump is a DeMuniz dissent as well as a must-read comment by Rich Oberdorfer that starts:

The expert's "unchallenged" idea that human beings "peak" in BAC within 5-10 minutes is absolutely unsupported by the past century worth of research.

J. DeMuniz dissents, saying he would have found that the .08 prong of the DUII statute is a bright line rule, allowing the state to prove DUII if it has a test showing .08. Any additional evidence, extrapolating or otherwise, is beyond the scope of the statute and inconsistent with the intent of the legislature. State v Eumana-Moranchel