Expert Witness Testifies in Jury Trial for DUI Case

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By Fabiha Zaman

The jury trial for defendant Larra Williams reconvened on Wednesday afternoon in Department 14, Judge David Rosenberg presiding.

Deputy District Attorney Alex Kian began his direct examination of the expert witness Mr. Palacek. Mr. Kian asked about regulations in blood testing in terms of determining blood alcohol content (BAC). The witness stated that the laboratory he works in is an accredited institution so they are regularly checked.

For this particular case, the sample was received by the lab and logged in. It was unlocked from storage by the witness. He recognized the sample because there was a name on the tube and the storage unit for the sample had the case number.

Mr. Kian asked Mr. Palacek to explain the process of testing the blood. Essentially, Palacek said it was an extremely complicated process that required a lot of set up and warming up of the machines. The calibration, for instance, requires the machine be filled with two types of blanks, the first one water, and the second a solution that helps further the calibration of the
instrument.

This calibration is done at the beginning and at the end of the entire process, along with a quality control sample. Other things that are found in blood are also put into the machine as a resolution standard to further prep for the actual sample.

Each sample is sampled in duplicate, and each one of the readings for both the samples must be within 5 percent of the mean of those two samples, otherwise the entire process is repeated.

After the samples are taken, there is a tedious process that follows when it comes to checking the names on the samples, the spelling, case number, time, and date. For this case, the sample that was measured yielded a result of 0.030 and 0.031 BAC levels.

After Mr. Palacek finished explaining the process, he was asked to identify a document from the forensic services department in his lab. The witness confirmed that it was the report he filed for this case that contained all the information collected from the testing results.

Mr. Kian next asked about impairments regarding blood alcohol content. The witness talked about small muscle impairments, especially in the eye – for example, the inability to control the iris, glare recovery especially at night, and the inability to merge two images in the brain.

Large muscle impairments, on the other hand, are more obvious like the inability to walk or control the gas and brake pedals while driving. Mr. Palacek added that officers conduct field sobriety tests to help determine muscle impairments. These tests are generally very fast and simple.

According to the witness, people who are more tolerant can deal with physical impairments and mask them. Additionally, based on his education, training, and experience, Mr. Palacek added that some people show impairment with a BAC of 0.01 to 0.03, a significant number of people show impairment at 0.01 to 0.05, and all persons will exhibit impairment with a BAC of 0.08 and above.

Next, Mr. Palacek was asked to explain retrograde extrapolation, a calculation that can give a possible BAC from an earlier point in time when certain information is provided.

Mr. Kian went back to the field sobriety tests, asking Palacek to explain them all in terms of the way they are conducted and what clues to look for. The witness said the most reliable of the three standardized field sobriety tests is the horizontal gaze nystagmus (HGN), and it is also accepted to be the most reliable by the scientific community.

There are six potential clues, three for each eye, that indicate impairment when conducting the HGN test. These clues include smooth pursuit, jerking at the left and right extremes, and jerking prior to moving through a 45-degree angle. This test is most reliable because these clues occur involuntarily when a person is impaired, and they are impossible to mask.

The next field sobriety test explained was the one-leg stand test. There are four clues for this test, which include hopping, putting down the foot, using hands for balance, and swaying. Observing two or more clues typically means that the person is impaired.

The last standardized test was the walk-and-turn. There are eight clues for this test, which are starting too soon, balance issues, stopping, improper number of steps, not stepping heel to toe, stepping off the line, using hands for balance, and not doing the turn as instructed. This test, like the one-leg stand, also only requires two or more clues for impairment to be exhibited by the person taking the test.

Mr. Kian then asked the witness to conduct a number of calculations, including retrograde extrapolations, with information provided from notes taken during field sobriety tests. The conclusion that Mr. Palacek made from all the calculations was the same for every hypothetical scenario he was given. The witness concluded that the person was too impaired to operate a motor vehicle each time.

The cross-examination was conducted by Deputy Public Defender Jonathan Opet, who is representing Ms. Williams. During questioning, the witness said that he had been working with the Department of Justice for just under 16 years. He was then asked whether he was ever investigated for inattentiveness in 2011 or if he was ever the subject of a corrective action order on February 8, 2011. The witness demanded to know who was making these allegations and who was accusing him before giving an answer.

After Judge Rosenberg instructed the witness to give an answer, Mr. Palacek answered “I don’t know” to both of Mr. Opet’s questions. Mr. Opet then asked about the witness’s application for the Department of Justice and whether he ever had an interview, prior to being hired, regarding a discrepancy he had failed to report in his application. The witness declined to answer this question, but this exchange was later stricken from the record.

Mr. Opet then asked about a study the witness had mentioned during direct examination that suggested peak absorption of alcohol occurred two minutes after the last drink. Mr. Palacek was unable to give any specific details of the case, regarding the year it was published or how the study was conducted, but did know the findings of the study.

Again, Palacek was asked to calculate BAC levels based on more hypothetical scenarios posed by defense counsel that all led to vague answers. The witness was also asked about possible issues with breathalyzers and margins of error provided by manufacturers of those instruments.

During re-direct, Mr. Kian asked Mr. Palacek to explain the difference between the screening mode and evidential mode of the breathalyzer.  The screening mode is used almost as another field sobriety test that just provides information and does not have to comply with the rigid standards for the evidential mode. The evidential mode has requirements that must be met because everything that is yielded from the evidential mode is admissible in court as evidence.

Mr. Kian then confirmed with Mr. Palacek that he requires the totality of clues in order to make decisions in terms of impairment. Red watery eyes alone, for instance, do not mean anything to Palacek.

After a brief re-cross, the witness was asked three questions from the jury regarding BAC, retrograde extrapolation, and the difference between standardized and unstandardized field sobriety tests.

Once the questions were answered, Judge Rosenberg instructed the jury to return the next morning at 8:30 a.m. when the testimony from expert witness Mr. Palacek will continue.



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About The Author

The Vanguard Court Watch operates in Yolo, Sacramento and Sacramento Counties with a mission to monitor and report on court cases. Anyone interested in interning at the Courthouse or volunteering to monitor cases should contact the Vanguard at info(at)davisvanguard(dot)org - please email info(at)davisvanguard(dot)org if you find inaccuracies in this report.

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