SCOVT affirms conviction for DUI death resulting. No abuse of discretion under Rule 702 in allowing pharmacologist/toxicologist to testify that defendant’s intoxication was the cause of the accident

State v.  Sullivan, 2017 VT 24

EATON, J. Defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor (DUI) with death resulting, in violation of 23 V.S.A. §§ 1201(a)(2) and 1210(f)(1), and leaving the scene of a fatal accident, in violation of 23 V.S.A. § 1128(a) and (c). On appeal, he challenges the trial court’s jury instructions, admission of expert testimony, and denial of his motion for access to necessary services as a needy person pursuant to 13 V.S.A. § 5231(a)(2). We affirm defendant’s convictions but remand the matter for resentencing based on our conclusion that the trial court abused its discretion by not continuing the sentencing hearing to allow defendant to present the testimony of his expert witness.

Although we agree with defendant that the “death resulting” element requires a finding that defendant’s intoxication was a but-for cause of the victim’s death, we do not agree with his argument that the trial court’s jury instruction failed to convey this causation requirement

The State offered expert testimony from a board-certified pharmacologist and toxicologist who focuses on drugs and medications. Defendant argues that the witness is not an expert in alcohol, and thus his testimony as to whether defendant was under the influence of alcohol at the time of the accident was outside the scope of his expertise. Defendant also argues that his opinion as to the cause of the accident was also outside the scope of his expertise. 

Trial courts have “broad discretion to determine, on a case-by-case basis, whether some or any of the [Daubert] factors are relevant to evaluating the reliability of expert evidence before the court.” We are not persuaded that the trial court abused its discretion in determining that the testimony was sufficiently reliable for the jury to consider it. The opinions proffered by the State’s expert do not represent the type of “junk science” Daubert intended to thwart; rather, the testimony was supported by the witness’s qualifications as an experienced clinical pharmacologist and toxicologist whose work focuses on the effects of drugs and medications, including the pharmacodynamics of alcohol. Further, the witness detailed how his understanding of the effects of alcohol led to his opinion that the most likely cause of an accident under the circumstances of this case was defendant’s driving while intoxicated. This testimony was within his area of expertise, and the trial court did not abuse its discretion in so concluding.

The convictions are affirmed. The sentence is vacated and the matter is remanded for resentencing to allow defendant sufficient opportunity to present expert mitigation testimony, either at his own expense or at state expense if he is found to qualify for necessary services upon any renewed application for such services pursuant to the guidelines set forth in Administrative Order 4, § 5.