By Danae Snell and Özge Terzioğlu
RIVERSIDE – What was supposed to be a fun evening out with friends took an unexpected turn when one of the men, Refugio Rosales-Torres, was placed in handcuffs and put in the back of a patrol car.
Defendant Rosales-Torres is currently being charged with Vehicle Code section 23152(a), “driving under the influence of alcohol,” and section 23152(b), “driving with a blood alcohol content of 0.08% or greater.”
The trial took place in front of a jury late last week here in Riverside County Superior Court
Deputy District Attorney Adelaida Hernandez and Defense Attorney Mario Rodriguez opened the floor to explain the night in question from two opposing perspectives.
The jury learned that the defendant and “several other friends agreed to meet out near the desert area of Desert Hot Springs” to spend the evening driving their “three off road vehicles,” and that the defendant “started driving his vehicle and later that evening before 9:02 pm—which is when someone made a 911 call reporting a rollover involving his Razor out in the open desert.”
Defendant Rosales-Torres allegedly was making a right turn when he “lost control and turned over.”
An acquaintance of the defendant, who was subpoenaed by the defense, informed the court that in that moment the defendant was “really shaken up and drank like two beers to get himself back together.”
Then one of his friends offered to give the defendant a ride “back to his truck which was some distance away, but the truck had the trailer” to carry the damaged ATV.
According to defense counsel Rodriguez, when the defendant returned to the scene of the collision, he encountered California Highway Patrol Officer Dylan White, who testified that when he arrived at the scene at 9:40 p.m. he found an abandoned ATV, then a white pick-up truck carrying the defendant and two other males arrived seven minutes later.
The officer was unable to communicate with the defendant due to “a language barrier,” but he claimed that he was able to understand the defendant insofar as another CHP Officer, Saul Zatarian, assisted him during the investigation.
When Officer White began engaging in conversation with the defendant he noticed “that his eyes were red and watery at the time” and detected the smell of “alcohol coming off his breath.”
Although Defendant Rosales-Torres held a “relatively cooperative” demeanor at the time, officer White suspected he was under the influence of alcohol due to the two indicators mentioned and the slight slur in his speech.
These indicators resulted in Officer White conducting multiple field sobriety tests on the defendant. During this time defendant Rosales-Torres informed him that he consumed “three to four Tecate beers” earlier.
Defendant Rosales-Torres informed officer White that he did not feel the effects of the alcohol; however, the findings of the field sobriety tests resulted in the defendant’s arrest and test on a portable electronic breath testing machine, which showed a blood alcohol level “at the time of the blow” was 0.096 percent and 0.093 percent for the two tests conducted.
During Officer White’s testimony, he clarified that there was a mistake in the police report, where he wrote that the defendant was driving the pick-up truck when he arrived at the scene with two other men. It really was defendant Rosales-Torres’ friend driving the truck.
The defense was concerned with the mistake in the report. Officer White said he takes notes at the scene on an index card so he can write the report later. Once he writes the report he destroys the notes.
The report was submitted a week after the incident because the sergeants reviewed it to make corrections, described as “Minor, to confirm this or that happened. Things of that nature. I would say things in general,” Officer White clarified.
However, there is no copy of the report with the mistakes, or the corrections added, and Officer White did not recall the changes he made.
Officer White did not give the defendant a walk and turn test because of the “terrain,” in that some parts of the road were “bumpy, curvy.” He said he was looking for clues during the pass-fail tests, like swaying, eyelids fluttering, swaying in a circular motion. He said defendant Rosales-Torres did not do any of these things.
Officer White couldn’t recall if he got the names of the defendant’s friends, if he considered them to be witnesses to the collision, or if that information was in his report.
The second witness called to the stand was Officer Zatarian, who said when spoke to the defendant on the scene they spoke in Spanish and he told him he was involved in the traffic collision. The officer noticed the defendant had red, watery eyes, and he could smell alcohol on him.
He did note the defendant only did one of the tests, two times, even though he instructed him to do it three times; combined with the swaying this led him to believe the defendant was under the influence. They administered a chemical breath test at the scene.
Officer Zatarian said they only cited the defendant and let him go into the custody of his friends because he was cooperative.
Defense counsel Rodriguez questioned Zatarian’s Spanish competency by asking why he read the instructions off the cards if he’s fluent in Spanish. He also wondered if his fluency in Spanish is equivalent to that of English.
Officer Gary Johnson of the California Highway Patrol was the third witness called to the stand, who testified if the machine used by the officers was working properly.
The trial resumed Thursday morning with the summoning of Senior Criminalist from the Department of Justice in Riverside County Stephanie Hopkins to “look at the hypotheticals” and explain “what the science says.”
DDA Hernandez proposed a hypothetical scenario to Hopkins involving an individual who “rolled over an ATV trying to make a turn and that person later had red, watery eyes, smelled like alcohol” and “later admitted to drinking” to receive her expert opinion.
Hopkins responded to this hypothetical by stating, “Mainly the red, watery eyes can be a lot of things, but it is consistent with alcohol. And they admit to drinking so it could be quite obvious.”
However, when asked which of these were physical or mental effects, Hopkins responded “I don’t see anything that is obvious mental impairment. Rolling an ATV can be lots of things, people crash their ATVs.”
Hopkins also informed the court that she as well used to be an owner of an ATV and even broke her back in an accident. She quickly stated after, “I was not drunk.”
DDA Hernandez asked another hypothetical involving the defendant’s height, weight, and gender regarding what his blood alcohol concentration could be at 9:00 p.m. after consuming three to four 12 oz. Tecate beers with a 4.5 alcohol concentration between the hours 4 p.m. and 8 p.m.
Hopkins stated, “I can’t do that because I do not know if that person had one drink per hour, then they would have close to a zero, or if they had four drinks in the last 30 minutes of that window.”
Although Hopkins was unable to determine the individual’s BAC after 8 p.m. she was able to conduct a back calculation after being informed that the individual’s BAC was over 0.08 percent at 10:36 p.m. Her calculation indicated that “given that scenario that person would be too impaired to operate a motor vehicle at 9 p.m.”
Defense attorney Rodriguez asked his own hypotheticals and also received the response he was searching for. His scenario involved someone having a rollover of an ATV between 8:30 p.m. and 8:45 p.m. and “thereafter drank three Tecate beers between 8:45 p.m. and 9:30 p.m.”
Rodriguez asked “if that person took a breath test at 10:11 p.m. and 10:14 p.m. would the breath test be in the absorption phase?” It was previously confirmed by Hopkins that “drug testing in the absorption phase is not recommended.”
Hopkins agreed that these breath tests could have been during the absorption phase along with the other tests conducted at 10:33 p.m. and 10:36 p.m., meaning, she said, that “if you do breath testing during the absorption phase the breath test results could overstate how much alcohol is in the blood.”
The case has now gone to the jury.
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