SCOVT affirms ruling that finds unpersuasive State’s blood alcohol relation-back testimony.

State v. Nugent, 2014 VT 4 (10-Jan-2014)

REIBER, C.J. The State of Vermont appeals from the trial court’s grant of defendant’s motion for judgment as a matter of law on his civil driver’s license suspension. The trial court held that the State did not prove by a preponderance of the evidence that defendant’s blood alcohol concentration (BAC) was 0.08 or above at the time he operated a motor vehicle. The court found the State expert’s relation-back calculation to be unreliable because her assumed alcohol elimination rate of 0.015 percent per hour was speculative. We affirm the trial court’s decision.

Because the police tested defendant’s BAC more than two hours after the time of operation, the State was required to prove through relation-back evidence that defendant’s BAC was over the legal limit while he was driving. On cross-examination, defendant questioned the State expert’s assumption that the alcohol elimination rate was 0.015 percent per hour, on the grounds that elimination rates vary between individuals and the expert could only speculate as to defendant’s elimination rate. The expert conceded that the elimination rate varies by individual and that she had no scientifically principled way of distinguishing between her assumed elimination rate and different elimination rates offered by other experts in the field.

The trial court ruled the opinion was admissible but was of insufficient weight for the court to establish BAC at time of operation. This finding is reviewed for clear error, as the trier-of-fact is in the best position to determine the weight and sufficiency of the evidence presented. The trial court’s conclusion was supported by the expert’s testimony, in which she offered no credible reason why her assumed elimination rate was reliable as applied to defendant, nor did she testify as to the likelihood that defendant’s BAC was below 0.08 while driving. The trial court’s reliability finding was not error, much less clear error.