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Guerre-Chaley v. State (04/09/2004) ap-1924
Guerre-Chaley v. State (04/09/2004) ap-1924
NOTICE
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opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
UTE GUERRE-CHALEY, )
) Court of Appeals No.
A-8473
Appellant, )
Trial Court No. 4FA-02-670 Cr
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1924 April 9, 2004]
)
Appeal from the District Court, Fourth Judi
cial District, Fairbanks, Raymond M. Funk,
Judge.
Appearances: Michael A. Stepovich,
Fairbanks, for the Appellant. Jason
Gazewood, Assistant District Attorney,
Jeffrey OBryant, District Attorney,
Fairbanks, and Gregg D. Renkes, Attorney
General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Ute Guerre-Chaley1 was arrested for driving while
intoxicated.2 During her encounter with the police, Guerre-
Chaley submitted to a preliminary breath test i.e., a breath
test on a portable testing device carried by the police officer.
According to this preliminary breath test, Guerre-Chaleys blood
alcohol content was 0.079 percent. (The legal limit is 0.080
percent; see AS 28.35.030(a)(2).)
Later, at the police station, a breath test conducted
using a DataMaster showed that Guerre-Chaleys blood alcohol
content was 0.091 percent. Guerre-Chaley then requested an
independent blood test; this blood test yielded a blood alcohol
level of 0.095 percent.
At Guerre-Chaleys trial, the defense attorney wished to
present the testimony of an expert witness who had concluded
that, even though Guerre-Chaleys blood alcohol level exceeded the
legal limit of 0.080 percent when her breath was tested on the
DataMaster at the police station and when her blood was tested a
little later, her blood alcohol level had been less than 0.080
percent at the time she was driving. But a problem arose because
the expert witness proposed to base this opinion on the results
of the preliminary breath test.
The State argued that the results of the preliminary
breath test device did not meet the standard for admissibility of
scientific evidence under the Daubert-Coon test (the test used in
the courts of Alaska).3 For this reason, the State asked the
trial judge to exclude all evidence of the preliminary breath
test result (thus effectively prohibiting the defense expert from
relying on it).
The trial judge, District Court Judge Raymond M. Funk,
agreed that the preliminary breath test result constituted
scientific evidence for purposes of the Daubert-Coon rule. The
judge further ruled that the defense expert witness could not
testify about, or rely on, the result of Guerre-Chaleys
preliminary breath test unless the defense first established that
the preliminary breath test device produced results that met the
Daubert-Coon test for admissibility.
After Judge Funk made this ruling, the defense attorney
declined a hearing on this issue and offered no other support for
the scientific validity of preliminary breath test results.
Accordingly, Judge Funk refused to allow the defense expert
witness to rely on the result of the preliminary breath test.
(Despite this ruling, the expert witness, Dr. Lawrence
K. Duffy, did testify for the defense. Based on the result of
Guerre-Chaleys DataMaster breath test (0.091 percent) and the
result of her later blood test (0.095 percent), Dr. Duffy
concluded that Guerre-Chaleys blood alcohol level was rising
throughout her encounter with the police, and that her blood
alcohol level had been slightly below the legal limit when she
was first stopped.)
On appeal, Guerre-Chaley argues that Judge Funk should
have allowed her defense expert witness to testify about, and to
rely on, the result of the preliminary breath test even though
Guerre-Chaley failed to prove that this result was scientifically
valid under the Daubert-Coon standard. Guerre-Chaley bases her
argument on Alaska Evidence Rule 703, which reads:
Basis of Opinion Testimony by Experts.
The facts or data ... upon which an
expert [witness] bases an opinion or
inference may be [either] perceived by or
made known to the expert at or before the
hearing. [These] [f]acts or data need not be
admissible in evidence, but [they] must be of
a type reasonably relied upon by experts in
[that] particular field in forming opinions
or [drawing] inferences upon [that] subject.
Guerre-Chaley asserts that this rule exempts the proponent of
expert testimony from the restrictions on scientific
evidence established in Daubert and Coon.
It is true that Evidence Rule 703 declares that the
data underlying an expert witnesss opinion need not be
independently admissible, so long as it is the type of
data that experts in that field reasonably rely on for
that purpose. But in practice, Rule 703 normally means
that the proponent of expert testimony need not show
that the underlying data could independently survive a
hearsay objection or an objection based on the expert
witnesss lack of first-hand knowledge. See the fifth
and sixth paragraphs of the Commentary to Alaska
Evidence Rule 703.
Guerre-Chaleys contention that Rule 703 exempts the
underlying data from the Daubert-Coon rule governing
the admissibility of scientific evidence is an
extension of the rule that we doubt was ever
contemplated by its drafters. Moreover, Guerre-Chaley
is advocating a seemingly paradoxical application of
Rule 703: one that would allow expert witnesses to
testify about, and base their opinions on, data that
has no demonstrable scientific validity.4
Federal authority rejects this suggested interpretation
of Rule 703. Four years ago, Congress amended Federal Evidence
Rule 702 to clarify and emphasize the trial courts gate-keeping
role with regard to scientific evidence under the Daubert test.
Federal Evidence Rule 702 now reads:
If scientific, technical, or other
specialized knowledge will assist the trier
of fact to understand the evidence or to
determine a fact in issue, a witness
qualified as an expert by knowledge, skill,
experience, training, or education may
testify thereto in the form of an opinion or
otherwise, if (1) the [witnesss] testimony is
based upon sufficient facts or data, (2) the
testimony is the product of reliable
principles and methods, and (3) the witness
has applied [those] principles and methods
reliably to the facts of the case.
The Advisory Committees Note to this amended version of Rule 702
addresses the relationship between the Daubert test embodied in
Rule 702 and the relaxed standard for the admission of evidence
under Rule 703:
There has been some confusion over the
relationship between Rules 702 and 703. The
[present] amendment makes clear that the
sufficiency of the basis of an experts
[opinion] is to be decided under Rule 702
[i.e., under the Daubert test]. Rule 702
sets forth the overarching requirement of
reliability, and an analysis of the
sufficiency of the experts basis [for their
opinion] cannot be divorced from the ultimate
reliability of [that] opinion. ... When an
expert relies on inadmissible information,
Rule 703 requires the trial [judge] to
determine whether that information is of a
type reasonably relied on by other experts in
the field. If so, the expert can rely on
[that] information in reaching an opinion.
However, the question [of] whether the expert
is relying on a sufficient basis of
information whether admissible information
or not [to be permitted to offer an opinion]
is governed by the requirements of Rule 702.
See the Advisory Committees Note on the 2000 amendment to Federal
Evidence Rule 702, quoted in Michael H. Graham,
Handbook of Federal Evidence (5th ed. 2001), 702.1,
Vol. 2, p. 425.
Thus, if an expert witness purports to base their
opinion on the results of a test that has not been
shown to have scientific validity under Daubert, the
trial judge can prevent the witness from offering that
opinion. In such a situation, the proposed expert
testimony would fail to meet the standards set forth in
Rule 702, for it would not be based upon sufficient
facts or data, and it would not be the product of
reliable principles and methods.
In our view, this same rule of law can also be
justified somewhat differently. Even though Evidence
Rule 703 does not require that the data underlying an
expert witnesss opinion be independently admissible,
the proponent of the expert testimony must still show
that this underlying data is the type of information
that is reasonably relied upon by experts in [that]
particular field in forming opinions or [drawing]
inferences upon [that] subject. And, as a matter of
law under Daubert and Coon, experts can not reasonably
rely on the results of a test that has no demonstrable
scientific validity.
Some federal cases support this view of the matter. In
In re Paoli Railroad Yard PCB Litigation, 35 F.3d 717 (3rd Cir.
1994), the Third Circuit overruled precedent which, until that
time, had stated that a trial judge should resolve the question
of what facts or data are reasonably relied upon by experts in
the particular field by hearing from these experts.5 In Paoli
Railroad Yard, the Third Circuit reversed course and held that,
because the Daubert decision requires trial judges to exercise a
gate-keeping function with respect to scientific evidence, it
must be the trial judges (rather than the experts) who ultimately
determine what data is reasonably relied upon by experts in the
field.6 In other words, reasonable reliance necessarily requires
proof of scientific validity:
If [an] experts reliance on animal
studies to draw conclusions about [the effect
of chemical compounds on] people constitutes
a methodological flaw, [then] it is a ...
flaw consisting of relying on data [that is]
not of a type reasonably relied upon by
experts. It would be problematical to
conclude that this testimony was reliable
enough to meet Rule 702 but not Rule 703[,]
or vice versa. Testimony that is
[sufficiently] reliable under one Rule should
not be inadmissible under another when the
policy considerations underlying the two
rules are the same.
. . .
There will be times when an experts
methodology is generally reliable but some of
the underlying data is not of a type
reasonably relied on by experts. In those
cases, the expert can testify so long as he
or she does not significantly rely on the
unreliable data, and so long as his or her
testimony survives Rule 702 without any
reliance on the excluded data.
Paoli Railroad Yard, 35 F.3d at 748-49 & n.
19.
The Third Circuit recently
reiterated this view of Rule 703 in
Montgomery County v. Microvote Corp., 320
F.3d 440 (3rd Cir. 2003):
When a trial judge analyzes whether an
experts data is of a type reasonably relied
on by experts in the field, he or she should
assess whether there are good grounds to rely
on this data to draw the conclusion reached
by the expert. ... If the data underlying
the experts opinion are so unreliable that no
reasonable expert could base an opinion on
them, the opinion resting on that data must
be excluded.
Id. at 448 (quoting In re TMI Litigation, 193
F.3d 613, 697 (3rd Cir. 1999)). See also
Allen v. Pennsylvania Engineering Corp., 102
F.3d 194, 198-99 (5th Cir. 1996), in which
the Fifth Circuit seemingly applied the same
construction of Evidence Rule 703.
We additionally note that Evidence
Rule 705(c) also supports the conclusion that
scientific validity under Daubert and Coon is
a prerequisite to admission of evidence under
Rule 703. Rule 705(c) states:
When the underlying facts or data would
be inadmissible ... for any purpose other
than to explain or support the experts
opinion or inference, the [trial judge] shall
exclude the underlying facts or data if the
danger that they will be used for an improper
purpose outweighs their value as support for
the experts opinion.
Whenever an expert witness proposes to base an opinion or
inference on data derived from a test that has no
demonstrable scientific validity, that data will have
little or no probative force in support of the experts
opinion, while at the same time there will obviously be
an overriding danger that the data will be used for an
improper purpose the improper purpose of lending the
aura of scientific respectability to an assertion that
has no basis in science.
For these reasons, we reject Guerre-Chaleys argument
that Alaska Evidence Rule 703 allows the proponent of expert
testimony to circumvent the Daubert-Coon rule. Instead, we hold
that when data derived from a scientific test or analysis is
offered under Rule 703, it is a prerequisite that the scientific
test or analysis meet the test for admissibility under Daubert
and Coon.
In reaching this conclusion, we express no opinion on
the question of whether the preliminary breath test device could
meet the standard set in Daubert and Coon for the admission of
scientific evidence if this issue were litigated. It is
conceivable that the preliminary breath test device provides a
scientifically valid measurement of a persons alcohol level, and
that the test is sufficiently accurate that reasonable experts
would rely on its results when performing the type of retrograde
extrapolation analysis that Guerre-Chaleys expert proposed.
But Guerre-Chaleys case presents a different issue:
Could Judge Funk properly require Guerre-Chaley to present
evidence that the preliminary breath test device did indeed meet
the Daubert-Coon test and could the judge exclude the test
results when Guerre-Chaley declined to present any evidence on
this point? We conclude that the answer is yes.
In United States v. Iron Cloud, 171 F.3d 587, 590 (8th
Cir. 1999), the Eighth Circuit noted that almost every state that
has addressed the issue [of the scientific validity of
preliminary breath test technology] has refused to admit the
results of the test for purposes other than [establishing]
probable cause. The court then listed fifteen state decisions
supporting this statement.7
In Alaska, the use of the preliminary breath test is
even more limited: a police officer can not require a motorist
to submit to the preliminary breath test until after the officer
has probable cause to believe that the motorist is driving while
intoxicated. See Leslie v. State, 711 P.2d 575, 577 (Alaska App.
1986), construing AS 28.35.031(b).
Against this legal backdrop, we conclude that Judge
Funk did not abuse his discretion when he required Guerre-Chaley
to establish the admissibility of preliminary breath test results
under the Daubert-Coon rule before he would allow Guerre-Chaley
to offer expert testimony that relied on those results. And when
Guerre-Chaley declined to offer any evidence on the Daubert-Coon
issue, Judge Funk properly barred Guerre-Chaleys expert witness
from testifying about, or relying on, the preliminary breath test
result.
This appeal presents one additional question. Guerre-
Chaley contends that Judge Funk erroneously instructed the trial
jury in a way that prohibited the jurors from considering
retrograde extrapolation when they decided what Guerre-Chaleys
blood alcohol level had been at the time she was driving.
Specifically, Guerre-Chaley argues that Jury Instruction 17
barred the jurors from relying on the defense expert witnesss
theory that, because Guerre-Chaleys blood alcohol level was
apparently rising between the time she took the DataMaster breath
test at the police station and the time she had the independent
blood test, one could infer that her blood alcohol level was
significantly lower when she was stopped by the police.
We reject this claim of error for two reasons. First,
Guerre-Chaley has failed to adequately brief it. Guerre-Chaleys
argument of this point consists of four conclusory sentences two
of them found on page 4 of Guerre-Chaleys brief,8 and the other
two found on page 9 of her brief.9 Guerre-Chaley does not
discuss the wording of the challenged instruction, nor does she
offer any explanation of why she believes that the instruction
prohibited the jury from considering her theory of the case.
This kind of briefing constitutes an abandonment of the claim of
error.10
Our second reason for rejecting Guerre-Chaleys claim of
error is that we have examined the challenged instruction and it
does not, on its face, prohibit the jury from considering the
testimony of Guerre-Chaleys expert and the defense theory that
Guerre-Chaleys blood alcohol level was below 0.080 percent at the
time she was driving. We note that the defense attorney in fact
argued this chosen theory of defense (retrograde extrapolation)
to the jury, and the prosecuting attorney never objected to the
defense attorneys argument or suggested to the jury that this
argument was inconsistent with the law contained in the jury
instructions.
To summarize:
We hold that even though Evidence Rule 703 states that
expert witnesses can sometimes rely on underlying data that would
not be independently admissible, if that underlying data is
derived from scientific tests or methods, those scientific tests
or methods must meet the Daubert-Coon test for admissibility.
And we conclude that Guerre-Chaleys jury instruction
claim is both inadequately briefed and meritless.
For these reasons, the judgement of the district court
is AFFIRMED.
_______________________________
1 Ms. Guerre-Chaleys name is pronounced so that it rhymes
with rare chalet.
2 AS 28.35.030(a).
3 See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (construing the
federal evidence rules governing expert testimony), and State v.
Coon, 974 P.2d 386 (Alaska 1999) (adopting Daubert as the proper
interpretation of Alaskas rules governing expert testimony).
4 We recognize that the term validity, like the term
reliability, has a narrow and specific meaning when
used to describe a scientific test or procedure. As we
explained in Ballard v. State, 955 P.2d 931, 934 n. 2
(Alaska App. 1998), the reliability of a scientific
test or procedure refers to the degree of uniformity in
the results the likelihood that the test or procedure
will repeatedly yield the same results under the same
testing conditions. In contrast, the validity of a
test or procedure refers to the likelihood that the
results accurately reflect the presence or absence of
the thing the scientists are looking for.
When we say scientific validity, we are not using validity
in this narrow sense, but rather in the broader sense
that the Alaska Supreme Court used the term in State v.
Coon, 974 P.2d 386, 390 (Alaska 1999) to wit, meeting
the standards of, or deriving from, valid scientific
methodology.
5 Id. at 747.
6 Id. at 748.
7 Id. at 590 n. 5.
8 [T]he court over objection [sic Judge Funk in fact
modified the wording of this instruction at Guerre-Chaleys
request] gave [J]ury [I]nstruction 17 which would not allow the
jury to find retrograde extrapolation. [citation to the record
omitted] This constituted plain error.
9 In addition[,] the giving of [Jury] [I]nstruction ... 17
prevented [the] jury from finding retrograde extrapolation. This
was plain error.
10 See Petersen v. Mutual Life Insurance Co. of New York,
803 P.2d 406, 410 (Alaska 1990).
