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The Facts of the Recent Vehicular Homicide Trial in Whatcom County

The Facts of the Recent Vehicular Homicide Trial in Whatcom County

A Whatcom County vehicular homicide trial wrapped in court recently. DUI attorney Jonathan Rands and KGMI's Dillon Honcoop discuss the details of the case and the evidence that was presented to the jury who ultimately found the defendant guilty.


Episode Transcript

Dillon
Today on the Legal Docket, we are going to dissect a recent DUI, well, vehicular homicide case, technically is what it is. Jonathan Rands, local DUI attorney is here with us this morning. It was his case. It was his case, his trial. It went to trial. We've been talking about cases going to trial recently. We said this was coming up, and now it's gone through the process and now the hindsight is 20/20, where we can look back and see exactly what happened with this. It's been in the news as well. Give us the background of what happened. Was it in 2014?

Jonathan
December 2014, December 5th and 6th, to be exact. Actually, it's 4th and 5th, to be exact. Yes, it was my case, but also there was co-counsel with me, Mark Kaiman.

Dillon
How does that work exactly — how does that get started?

Jonathan
This is the type of case where there's—not only what's at stake is so giant, but how you get there. There was originally close to 45 witnesses potentially involved. And then in order to have the case tried and for the State to put on their case, it took 27 witnesses in some capacity. Now some witnesses were five minutes of testimony. Others were 3.5 hours all told. And we had four witnesses of our own. So we had almost 30 witnesses to really wade through if you will.

The way a trial works, is you pick a jury. We talked a little about that, so I don't want to spend too much time on that, on the last show. It's been what, a month since I've been in here, right?

Dillon
Something like that, yeah.

Jonathan
Because of this small project I've been working on. [Laughing]

Dillon
Large project.

Jonathan
So you pick a jury and then the State prosecution, or the city prosecution, but in this case the State, they call witnesses — one at a time. And those witnesses basically tell what they have to tell. And generally, it's nice to go chronologically, in terms of what happened. And in this particular case, they started with a, I use the word 'civilian' witness because she's not in law enforcement or anything like that. But she was a passenger in the vehicle driving behind my client. She didn't necessarily see the accident, but she was a nurse and she was rendering aid as soon as the accident happened.

So that's the way that they started. And then there's a little bit of jumping around, based on witness availability. When you have law enforcement witnesses, they're pretty easy to handle because they're in constant contact with state prosecutors and stuff. But when you moving into civilian witnesses, or in this case, we had multiple people from St. Joseph's hospital where some of the events took place after the arrest — a doctor. So when you're dealing with those types of schedules, things tend to get messed around all the time because you always want to be sensitive to people who are coming in and providing evidence.

Dillon
Talk about the facts back from December 2014. And no one disagrees, this was a horrible situation.

Jonathan
Absolutely. And not matter what the outcome, there's no winners or losers. It's a really tough, emotional situation. We've got two families involved — the defendant's family and the victim's family. A lot of publicity as well when this first happened. And it's not an easy situation to manage for anybody. Whether you're a prosecutor; whether you're a defense attorney; whether you're friends or family; or whether you're my client.

You'd asked how it comes about in terms of two attorneys. Because of the sheer volume, I would never do one of these cases by myself. I've always recommended when a client comes to see me, what we need to do is divide and conquer as far as the workload goes because there's just too many logistics going on. And even the State prosecutors had two prosecutors for I think exactly the same reason. In this particular case, my client sought me out sometime after working with Mr. Kaiman for no other reason than it's a big case. They called me and we chatted a little bit, and I talked to Mark about it and he said yeah, I think we would work well together.

Dillon
Have you ever worked with him like this before?

Jonathan
Nope. I've only worked with a handful of other attorneys because these cases don't come along all that often. But every time I have had one, I've worked with somebody that I admire and I respect. And I got to tell you that working with Mark was an exceptionally easy process. Really enjoyed working with him. We both just looked at the case and said, alright, this is the work that needs to be done. I'll do this and that leaves that for you. Any problems? Nope. And both just sort of went to work.

And so while you call it my case, I think a lot of the press covered instances or portions of the trial that Mark was generally handling. So I know that there was a lot of articles written, and I think I was only mentioned once or twice, which is fine. And he was mentioned more than that.

Dillon
Yeah, you don't do this to get publicity. You do this to deal with the case.

Jonathan
Right. And it's just the way that it worked out. We decided that he would do opening statement. He would do closing statement and handle certain witnesses. And that's just what the stories started to read about. 

The general facts of the case are that my client was coming home — essentially the testimony was that he was at work all day. He doesn't normally work that day. And after work, the company had a Christmas party, which he attended. That was at the Lynden Fair Grounds. And while he was there, he interacted with his friends and family, and it was kind of a low-key Christmas party. He was at work all day long. He was at that Christmas party for a couple of hours. After this Christmas party, some family had arranged a dinner at a local restaurant in Lynden, called the Rusty Wagon. They went there. They had dinner. At no point, from work on until after dinner did my client, was he seen, nor was there any evidence of him consuming alcohol. 

When the dinner was over, he and his wife had some time to kill because they came in separate cars, but their kids — they have five of them — were arranging a sleepover. But before that, she was still breastfeeding their infant. He'd gone out of the restaurant with her. Sat with her in the car while she breastfed and drank a beer. That was his testimony. And they went their separate ways after that because she had to drop off the kids and arrange for the party. And he was just going to head home and they were going to just spend a quiet evening together because the kids were out of the house.

On his way home, actually, he was almost home. He was on State Route 544, I believe, which is Everson... it's a road; it's Pole Road, then it changes into Kale, and then —

Dillon
Then it goes through — yeah.

Jonathan
And it goes through Everson. So just before Everson, there's a community there where they lived, and he was turning left into the community onto a road, I think it's called Kale Road. No, Christopher is what he turned onto. Kale is what he was on.

Dillon
Yep, yep.

Jonathan
So as he —

Dillon
Right before the bridge in Everson, basically. Most people know right where that is.

Jonathan
As he is slowing down, there's another vehicle behind him, and that's what the lead-off testimony was. Both people in that vehicle testified. The driver of that vehicle testified that he was behind him for a short period of time. Long enough to notice that nothing odd going on. There was no bad driving. The vehicle slowed down. The black box on the vehicle after the collision actually told us that he was slowed down to anywhere from 16-19 mph. Which is a perfectly appropriate speed. And in fact, they say that most turns occur in that range. However, my client waited for an oncoming vehicle to pass, then made a left-hand turn. He made a left-hand turn in front of an oncoming motorcycle, which he indicated he did not see.

Dillon
But that's not where this story ends, either.

Jonathan
No, that's just where it begins. 

Dillon
Yeah.

Jonathan
So a collision occurred — a tragic collision occurred. The rider of the motorcycle collided with the front of our client's SUV. He moved off the road. His airbag deployed. He couldn't see anything because his windshield was shattered from the motorcycle rider. The airbag had deployed. There was dust everywhere. He came to a stop as soon as he could. He knew something — he knew an accident had happened. He didn't know why or what. And then when he gets out of the vehicle, there's the motorcycle rider on his hood. The first civilians behind him on scene, she was a nurse. They all began rendering aid. And at that particular point, it was not a fatality. It was a serious injury collision, however. Everson police officers arrived. Sort of secured the scene. They called, some neighbors, I believe, somebody called 9-1-1 and the EMTs arrived quickly, removed him from the scene and took him to St. Joseph's Hospital. State patrol arrived and took over the scene because that's their mandate. And upon contact with my client, the State Patrol officer began essentially asking what happened. And his contact led him to believe my client had been consuming alcohol. So he did a DUI investigation.

Other people, interestingly enough, didn't have the same observations of the trooper. Meaning the first responder and the nurse and her husband, who was the driver of the vehicle, they specifically indicated that, well he did anyway, but she noted no signs of consumption on my client — no bloodshot, watery eyes; no flushed face; no slurred speech; no odor of alcohol. The driving of that vehicle, her husband, actually testified that he was formerly in the military and he said you know, most of the time something like this happens, you want to believe accidents happen and there isn't any cause for them, so he specifically got as close as he could — and it was within inches, he indicated — and he didn't note any indications of consumption.

The trooper arrived on scene. Did his investigation. Placed my client under arrest for suspicion of DUI. At this particular point, there was no information on the status of the motorcycle guy. He waited for a little while; he had to secure the scene. He waited for another patrolman to arrive, then he transported my client to St. Joe's. Originally he was going to transport him to the jail where the breath test machine is because he was under arrest for DUI and a breath test would be what was happening. While he was waiting for the other state patrol to arrive and relieve him, they learned there were serious injuries to the motorcycle rider, so that turned it into, at that point, a suspicion of vehicular assault. And that means blood draw. So the trooper made the decision that we were no longer going to get breath, because the statutory system changes, as does their practice when you're dealing with a serious injury — a felony DUI's area. 

They sought a search warrant; were granted a search warrant. But that search warrant didn't happen until he had already driven him to the ER. So he took him to the ER for purposes of a blood draw, not because there was any injury to my client whatsoever. So he drove him to the ER, did a telephonic search warrant. And then another officer who just happened to be at the hospital came out and escorted my client from the car inside for the blood draw.

Once there, and all along, my client was perfectly polite and cooperative. Lots of testimony about his behavior at the scene was appropriate given the circumstances. The trooper disagreed with some other people's observations. He had different observations in terms of how he was behaving. When we get to the hospital to the staff, and everybody, that my client has a fear of needles. The trooper's testimony was essentially that he was very loud and very combative. Very hostile, and not just afraid of needles, but their belief and position was that this was something that was intentional. Three four nurses testified, very familiar with fear of needles and counter fear of needles all the time, all sorts of different reactions to fear of needles, and the very first person who had contact with him — the phlebotomist who knew of our client. I mean, didn't know him, but her kids went to school with him, But very tangential. She didn't even know who he was until somebody later on told her. Testified that there was some — when he was there and expressed his fear, her training was to try and de-escalate. You try and make a person feel comfortable; you try and do a lot of things in order to get over the fear of needles. But the presence of the troopers, in her opinion, didn't make that a lot easier. There was a debate, if you will, or there was two sides, the troopers' testified that they didn't say or do anything that would have exacerbated the situation. The phlebotomist testified, though she couldn't specifically say what they said, their presence and their demeanor wasn't helping de-escalate.

Dillon
She calmed this guy down who was freaking out about getting jabbed with a need to draw his blood.

Jonathan
Yes. My client ultimately testified to what they had said to him. None of the troopers testified that they said anything to him in a derogatory way. Ultimately, my client testified and so did the phlebotomist that he asked, I'm not going to be able to do this, why don't you strap me to a bed. The troopers' testimony felt that it was necessary and it wasn't his idea. 

They strapped him to a bed regardless, and again, when it came time for a blood draw, every time a needle got close to him, he flinched, he moved depending on which witness testified, some said it was just a flinch or a flex. Others said there was thrashing and kicking and all sorts of more, what's the word I'm looking for, a lot more violent, if you will, reaction than others' testimony was.

At a certain point, again a divergence of testimony, at a certain point because he wouldn't stop moving — from the troopers' perspective they testified he wouldn't get on the bed. He testified he voluntarily suggested. One trooper testified in order to get him on the bed, I place my taser on him and threatened to tase him if he didn't get on the bed. Our client's testimony and version of events was that while he was in the bed, he sat up, he was still restrained in his arms and his legs, but he sat up a little bit (there was some movement there) and because he wouldn't quite moving, that's when the trooper placed the taser on his chest and told him he was going to be tased if he didn't stop moving.

Ultimately, a doctor got involved. And this is really, from a legal perspective, is what's interesting. He's there at the hospital for a legal blood draw. He's not a patient of the hospital at this particular point. And there was a decision to sedate him so that his blood could be drawn. But since he wasn't a patient, they couldn't sedate him without his permission. He had a fear of needles and never gave permission to sedate him. So the doctor examined him and made a determination that he was a danger to himself, unable to make rational decisions, and basically said that he thought that he was acting psychotic. As a result of that —

Dillon
Sedation would require a needle as well, I'm just making this up as we go here.j

Jonathan
Correct. The sedation was going to require, not only a needle but as testimony established, a bigger needle. And so once it was decided that he was going to be sedated, there was another approach with the needle. But before he was sedated, he had to be admitted. I think there's an interesting issue of appeal here because we have a doctor coming in to testify without permission of my client about what he did to diagnose him, which is a HIPPA issue in order to admit him. So in order to admit him, he had to evaluate him and he testified about that without my client's permission.

So he evaluated him, deemed him in need of sedation, which was in need of admission. So they admitted him, then they had to sedate him and in order to distract him, they used pain compliance, which was testified to as first there was, in order to sedate him, they were holding his arms and legs down. But again, he was moving too much as the needle approached. So the troopers employed pain distraction by hitting him on the leg with what's called a, what's called an ASP baton. It's fairly small, but it also comes out into a lengthy stick. Telescopic. Somewhere between 3-5 smacks on the thigh/leg area in order to distract him enough to get the sedation needle into him. And he testified that it was a little more than just smacking.

Dillon
If they had to do that, why didn't they just use the blood draw needle and call it good right — anyway, I got a ton of questions. We got to take a quick timeout. We're talking with Jonathan Rands right now about a recent trial, recent case that he handled. Vehicular homicide case out of Everson. A tragic situation in looking for what appropriate justice is in light of the facts that we know. More as we continue here on the Legal Docket here on KGMI.

-- Break --

Dillon
Jonathan Rands local DUI attorney in-studio with us this morning, sharing some of the details of a huge case you were recently involved with. You may have heard about it in the news. It was a vehicular homicide case here in Whatcom County. The crash happened in Everson and he's walking us through some of the facts we have on the case and some of the things that happened through the trail, again that recently wrapped up. Jonathan finish the story here. We left off with your client in the hospital just being admitted. The whole struggle was your client wasn't injured. He was at the hospital for them to get blood for this case essentially. Because they believed him to be under the influence of alcohol, hence the DUI arrest — at that time a vehicular assault arrest, since they did not know yet the victim would pass away in this case, which made it that much more tragic as things went on. But the whole thing was should they be taking his blood in the hospital when he has a fear of needles and is reacting poorly to this. Anyway, I'll give you a minute here to wrap this up.

Jonathan
And I should also interject that shortly after he gets to the hospital, and we're still in process for a blood draw with the understanding that it was a vehicular assault, but at some point, it's not really clear, but not too long after the blood draw procedure is in place, we learn that the motorcycle driver does pass away. And then the procedure for drawing blood doesn't change. You're drawing blood because initially you think it's a vehicular assault, but it adds a different dimension to it, if you will, in terms of that was the point when my client testified that the things that troopers were saying to him were not nice and were not making things any better for his fear and things of that nature. So ultimately what happens, because I don't have much time from the break, ultimately what happens is they distract him with pain enough so that he could be stuck with the needle and then sedated. The sedation effect takes about 30 minutes. Once that's done, he's essentially rendered unconscious. The doctor testified that he was sleepy, but not sleeping. But then at the same time, he was sleeping on occasion. It's enough that you shouldn't make any decisions, and nor can you actually function. 

At that particular point, blood draw's  kind of interesting, which we'll get to afterward, they can't get a vein, so they hook up and IV situation, once he's unconscious because he's no longer afraid of the needles. And from that IV they draw blood. And then they draw blood into a syringe, and then they put the syringe blood into a vial. Now that's a completely different way than you normally do a blood draw. And that's what's really interesting.

Ultimately what happens is once the blood is analyzed, and it's a 3.5 hour procedure from the time he gets to the jail to the time the blood is drawn. It's 1:30 in the morning by the time the blood is drawn. The accident happened at 8:44pm. The blood results from the state toxicology lab was 0.05. At that time it's well below the legal limit, but ultimately —

Dillon
They extrapolate backward and that whole thing.

Jonathan
And that was a really interesting conversation with the jury afterward, but it was also a big part of our case, in terms of whether that number and then going from that number and going backward in time, was enough evidence.

Dillon
We're going to pick up this story after the news. We're talking with local DUI attorney Jonathan Rands. He practices in Fairhaven. (360) 306-8136 is his phone number. Again, talking about this case he recently handled. Vehicular homicide case, took it through trial. It was all-consuming for him for quite some time, especially the weeks right up to and during the trial. So we'll continue the story and talk about how it all played out in court right after the news we continue here on the Legal Docket.

-- News Break --

Dillon
Alright, we're back and we continue here on the Legal Docket with — it's a big story. Not only news-wise, and it was something we covered here in the news department at KGMI. But as far as the amount of detail that goes into it. This vehicular homicide case recently that was in the news had to do with a motorcyclist that ended up dying after a crash in the Everson area. Jonathan Rands represented the man accused of vehicular homicide in that case. He's our guest right now in-studio here on the Legal Docket.

Pick up again, where we left off. We've talked about the crash, how it happened, how the accused in this, the driver in this, was taken to the hospital for a blood draw, which in a vehicular assault or a vehicular homicide that's going to be normal practice. There's going to be a blood draw. Does that always happen at the hospital with the ways things work right now in Whatcom County? 

Jonathan
Usually. And that's because the emergency room is 24 hours. And it's the easiest place to go in where there's a phlebotomist who is somebody who's trained to draw blood, or nurses all the time. I guess they have an informal understanding that if somebody comes in and needs a legal blood draw, a phlebotomist who, in this particular case that's her job. And I asked her a couple of questions - how often are you drawing blood? About every five minutes all day long on a shift that's anywhere from 8-10-12 hours. So, I mean, she gets good at it essentially. And that's just the place that they do it. So it's pretty much that way in any county. There isn't really any place else that you can go. I guess you could go to a clinic during the day. But the easiest and most accessible all the time is the hospital for a blood draw.

Dillon
So that's where they are. It ended up, your client who's accused in this case, they were going to take his blood. He has a fear of needles, so he's having a hard time with that. They ended up sedating him to take his blood. Then you told us once they had him sedated, then they had him plugged into an IV and took his blood by somewhat of an unconventional manner.

Jonathan
Right, I mean the normal way when blood is drawn, and you can think back if you had a blood draw recently. I had some blood work done recently. What happens is they use, I believe it's called a butterfly needle. It's a very small needle that has a small tube that runs to a mechanism that you then plug a vial into. A blood vial, for a legal blood draw, is a vacutainer vial. And what that means is that it's pressurized. So they take the vial. First of all, they put a small needle in your arm that connects to this apparatus that they vial has pierced its top rubber stopper and once that happens, there's suction that pulls blood through into the vial. Make sense?

Dillon
So it's like the vial is already charged with a vacuum internally.

Jonathan
It is a vacuum-seal vial, yeah.

Dillon
And pulls it in.

Jonathan
And that's what you hear when you click it into that apparatus once the vein is tapped with the needle. You hear that. And there are interesting issues with that in terms of if the vial doesn't fill all the way, it's a question as to whether the vacutainer was correct because it didn't pull in, didn't have the vacuum charge pulling in as much as it needs to in order to mix chemicals that are in it to do their job. 

Either way, it didn't happen in this case that way. What happened was they needed to examine him anyway as a result of the collision. The doctor said I wanted to an examination because he had involved since he was admitted. And while he was sedated, they couldn't get a draw. They tried first on his leg, and I think it was an access issue. You can draw blood from wherever you want, but the phlebotomist couldn't get a vein. So they decided to, since they had to do an IV anyway, they did an IV and then from the IV they drew blood with a syringe. And I don't believe it was a syringe with a needle. They hooked a syringe up to the IV, draw the blood, put a needle on it and then they push it into the vial that would normally be hooked up differently. 

That's just odd, is all, to me. It's not a big deal. It wasn't a big deal in this particular case. It's just a different way of drawing blood. And I don't particularly like it even though there's nothing that says its's unreliable. But in this particular case, the hospital also did their own bloodwork and took their own vials. I think a total of six tubes was drawn this way. And interestingly enough, I think because of the way the blood was drawn and pushed into the vial, it's more violent, if you will, for the blood.

The hospital, one of the nurses testified that some of their blood hemolyzed. That means that it's not acceptable for analysis because what happens is, the red blood cells have burst. And they're not intact. And if you think about, you that commercial where you see juice being poured into something and it drops down and slushes around and kind of has that wave to it?

Dillon
Yep.

Jonathan
Well, that's what's going on when you inject blood into a tube. If you do it that way, you're piercing it and pushing it in. That probably is what created the blood cells to burst. There was no evidence in this case that the vials that the state patrol had or used were hemolyzed, but there were vials that were testified to that had been in possession of the hospital.

Dillon
Does that screw up the analysis of how much alcohol might be present in that blood?

Jonathan
It can. There is scientific literature out there that indicates that when you analyze hemolyzed blood, it gives you a falsely high elevated. Not a lot, but the point of it is, is that it is not an appropriate sample to analyze even though you can analyze it. And again, there wasn't testimony, expert testimony, about this aspect of it. It was just there. It as something that came out in the trial because we didn't actually — I didn't know prior to this testimony that that's how they actually drew the blood differently. But then it made sense to me, when one of the nurses testified that it was hemolyzed. 

We did have a lot of expert testimony, in this particular case from the county coroner. There were two crash expert reconstructionists from the State. We had one testify very similar results, but we had called to the stand. And also there was a field sobriety testing expert. And then there was a former state toxicology expert that testified about retrograde extrapolation. Which I think was the biggest part of this case. 

Dillon
Which was looking back and forecasting in reverse.

Jonathan
Which is taking the known blood sample and then working backward in time.

Dillon
Jonathan Rands our guest right now. We gotta take another quick break. We'll be back with more of the story about this trial here on the Legal Docket as we continue on KGMI News Talk 790.

-- Ad Break --

Dillon
Ok, we pick up the story again here on the Legal Docket of a recent vehicular homicide case and ultimately trial. A trial that our guest this half hour, local DUI attorney Jonathan Rands was at least partly in charge of. You along with co-counsel Mark Kaiman. We're talking about how this crash happened. Your client turned in front of a motorcycle. The motorcyclist was injured. Law enforcement believed your client was under the influence of alcohol. He was taken to the hospital to have his blood taken. We've been talking quite a bit on the technicalities of how his blood his blood was taken and how he had a fear of needles, and how they had to sedate him. And to even sedate him in the first place they had to hit him with a baton. This whole process that we've just gone through. And now the question is, they got his blood. It was many hours now after the actual crash had occurred. Now can the experts extrapolate backwards and estimate what his blood-alcohol content was at the time that the crash occurred. What's it called, retrograde —

Jonathan
Extrapolation

Dillon
Extrapolation. How, I guess, I'm summarizing, but I know there's a lot more to how that actually works then what I just set up.

Jonathan
How that actually works is, I mean it's taking a very simple premise that we all know. When you drink alcohol, your body assimilates the alcohol. And after a period of time, there's no more alcohol in your body. And alcohol is one of the most widely studied drugs because of its legality in the world. So there's all sorts of studies involving alcohol, and this is certainly one of them. 

So the concept of retrograde extrapolation is, the first premise is, you only have one test at one point in time. And you want to know on either side of that point in time what the results would be. But in order to do that, you have to make a lot of assumptions. The entire process of retrograde extrapolation is based upon a set of assumptions. Where the assumptions begin is also interesting because first of all, you have to — the State tox lab will only go back to within two hours of driving. So if we've got driving at 8:44pm, and we've got a —

Dillon
Which was when the crash happened.

Jonathan
Which was when the crash happened. And the blood sample was taken at 1:30am. They will only go back to 10:44pm in time. So you're going to go from 1:30am backwards in time to 10:44pm because that puts you within two hours of last known driving. So that's premise number one. And that's because they want to assume that the person is completely absorbed of the alcohol. So if you know that the person has not anything to drink because a crash has happened, or they're under arrest and you can say that —

Dillon
Since they were under the supervision of law enforcement, they haven't had a drink in two hours, basically is what you're saying. Because otherwise, you could have alcohol in your stomach that hasn't made it to your blood yet.

Jonathan
Correct. So the first assumption is that we're only going to get within two hours and we're going to assume or give that person two hours to absorb. Because you can't do this calculation until you assume the person is fully absorbed, and assume the person if fully absorbed is peaking. They're reached their peak alcohol concentration meaning there's no more alcohol going in. So they've absorbed everything and they've gotten to the point of the peak, and then elimination is said to be relatively linear. It's said to be relatively linear, but it's not, because they pick a 0.015 burnoff rate for every hour. So you really do math forward and backward. They pick the number of 0.015, now some people burn off quicker than that. Some people burn off slower than that. They choose 0.015 because it seems to be more fair that the slower rate, but not as fair as the fastest rate. And that's just sort of the lab's policy in Washington.

So there's another assumption there. Both of those things assumes the person absorbs alcohol normally and eliminates alcohol normally. And the scientific papers out there, again there are outliers, this concept is generally accepted in the scientific community. The fact that you can work your way backward makes sense, right? So there's no debate as to whether it's generally accepted. The debate in the scientific community is how accurate it is because of what you don't know. You don't know anything about the person. The only way you can establish an actual known elimination rate is to test the person's blood at regular intervals — every 15 minutes, every half an hour, you know. And analyze it. That would tell you how fast a person is eliminating alcohol.

Similarly, it's the same way you could know a person's peak alcohol concentration. You monitor them; you test them; you get to a point where that's the highest it's going to be, then you monitor how the elimination is. Well, there's so many variables, however, about both of those things. You can never say, and our position was, you can never say beyond a reasonable doubt, what a person's blood-alcohol level ever was beyond that one point in time. Our former state tox laboratory witness, his name is Dave Predmore, he's retired, and he testified to yeah, it's generally accepted. But he also testified when I asked him about these numbers, and I asked him what kind of confidence as to accuracy and precision do you have going backwards? And his answer was none.

And he educated the jury in terms of using a graph, and he basically said, this is the average. It's kind of a bell shape. And whenever we do retrograde extrapolation in the community, we're assuming averages. There's a lot of research out there that a person absorbs differently than the average, as well as eliminates differently than the average. And he drew a couple of graphs in terms of, a person may never reach a true peak. A person can be anywhere between a true peak and a very flat assimilation over a longer period of time.

What effects absorption? All sorts of things affect absorption. And we didn't really get into that in this particular trial. We simply got into the concept of, unless you know, unless you can do what needs to be done only in a forensically scientific setting such as checking and blood draw all the time, you will never know what a person's peak is in the field. You'll never know what a person's actually elimination rate is. And if you don't know those things or don't have facts that lead you to believe beyond a reasonable doubt that you can go back within two hours, you can't find beyond reasonable doubt that the person at the time of the collision, with this particular case, was above the legal limit. 

And ultimately when we talked to the jurors afterward, they indicated to all of us that they couldn't get to above a 0.08. Whether they believed our expert; whether they believed their expert; or whether, I think one of the gentlemen was an engineer, he said, we ran our own numbers back here and we could never get there. But there were other factors that they considered and relied upon. But that was a big part of the case, and that was something that we focused on on a pre-trial basis. I filed a motion asking the court to not allow retrograde extrapolation because it was mostly speculation. And whenever you have evidence that is speculation, it's not generally admissible. But the judge in this particular case said, well because it's generally acceptable, it's not speculative enough that we should exclude it. And so it became a battle of opinions.

Dillon
Ultimately, we have about a minute/minute and a half here. The jury chose to convict your client of vehicular homicide.

Jonathan
And obstructing, by the way. The charge that we didn't talk much about, it sort of gets lost in the shuffle. Anytime a person delays or hinders a law enforcement officer in their duty, they can be charged with the crime of obstructing, which is a misdemeanor.

Dillon
And this is the blood draw stuff.

Jonathan
And because of his fear of needles and the delay that he caused in the blood draw process, which was part of the officer's duties, he was also found guilty of obstructing.

Dillon
What did you find out after this was all done, looking back. And you talked with the jury as well. How do you sum this up in the last minute that we have.

Jonathan
There isn't really any easy way to sum it up. We went back and chatted with the jury and they said, first of all, this was the hardest thing we've ever done. This in no way, shape, or form was fun and I don't think that anybody ever thought that it was. These are extremely difficult cases all the way around. I don't particularly even like talking about it, as we are here, but it's public knowledge. Out of respect for the family, out of respect for my client, I mean, at the same time it has been in the news is public record. All I can say is they are tragic cases all the way around. The consequences are huge. The consequences that have happened are enormous. Somebody's lost their life. The consequences in the future for my client, in terms of the sentence that he faces, his family, I mean it's so tragic all the way around. And it's one of those things where it's the worst case scenario. We typically talk about drinking and driving and I think we have fun with that show sometimes, but this is the one reason why my personal motto has always been, not only if you want to avoid DUI, if you want to avoid any potential tragic situation, the safest route is not to consume alcohol and drive a motor vehicle. I mean, that's the best summation I can give. I mean at this time of the year, December 2nd, 3rd, 4th, wherever we are. Christmas is rolling around. Do remember that. If you want to stay safe, don't drink and drive.

Dillon
Jonathan Rands local DUI attorney, that's a good message to end on here. His practice is in Fairhaven. (360) 306-8136 if you'd like to reach him, maybe if you've got a situation of your own. Questions that you have. His website is jrandslaw.com, another great resource online. jrandslaw.com and again (360) 306-8136. Jonathan thanks so much for opening up and sharing in-depth on this case. We appreciate it.

Jonathan
My pleasure. See you next time.


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“Jonathan, thank you for bringing the best possible outcome today in my case. It was a humbling and very sobering experience and I am mindful everyday of my personal responsibility and actions and those around me. My career has taken off and I’m glad to have this chapter behind me and will move onward past probation!”
Julie
A DUI Client