(Super. Ct. No. 62057977)
The opinion of the court was delivered by: Raye, P. J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant James Marvin Ray lost control of his pickup truck driving up a hill and around a curve on a rainy December morning. Subsequent blood testing revealed a small amount of marijuana in his blood, and that discovery led him to be charged with driving under the influence in violation of Vehicle Code section 23153, subdivision (a). The import of the blood test results became the focus of a battle between prosecution and defense experts. The prosecution presented the testimony of a drug recognition evaluation (DRE) expert and an accident reconstruction expert. Through the testimony of his own drug expert and accident reconstruction expert, and evidence of similar accidents, defendant sought to establish that he was not driving under the influence and a wet and dangerous highway caused the accident. Defendant also sought to counter the prosecution DRE expert with his own DRE expert, but the testimony was disallowed on procedural grounds.
Defendant contends the trial court improperly impinged on his right to a fair trial by disallowing evidence of similar accidents on the same roadway, by disallowing the testimony of his own expert to discredit the methodology endorsed by the prosecutor's DRE expert, by curtailing his right to cross-examine the prosecutor's expert, and by restricting his redirect examination of his own experts. He also alleges instructional error. We affirm.
Early in the morning on December 30, 2005, defendant used a company truck to finish a job installing gutters for a client of his employer, All About Gutters. His employer testified he had been a great employee for three or four years, "one of the most dependable ones we had." The company enforced a no-drug policy. The owner testified defendant had never violated that policy, and after defendant clocked out at about 10:30 a.m., the owner detected no odor of marijuana in the company truck.
It was raining intermittently that morning. Slightly before 11:00 a.m. Jessica Henry, who was 18 years old, was driving westbound downhill on Foresthill Road with her two younger siblings in a Ford Escort. All three wore seat belts. Coming out of a curve and into a straightaway, Jessica observed the back of a white pickup spin to the side and, turning counterclockwise, go straight across the passing lane and through her lane. Caltrans signs read, "Caution, slow down, slippery when wet." She remembers thinking she should drive up a hillside embankment to avoid a collision, but she blacked out and does not remember whether she was able to turn toward the embankment.
Defendant was the driver of the white Toyota pickup. His tires were in fair condition. He was driving uphill eastbound on Foresthill Road. Jessica testified that on defendant's side of the road, signs directed traffic to slow down around the curve, read "40 miles an hour," and told drivers that the "road is wind[ing]." The truck collided with the Escort, and Jessica and her siblings were all injured. The youngest suffered severe injuries to his face. Defendant also suffered a concussion from a blow to the head. A gash in his scalp required surgical staples. He was incoherent, belligerent, uncooperative, and somewhat combative with emergency personnel. At the hospital, medical personnel put him into a medical coma. An investigating police officer instructed them to draw a sample of his blood at 2:00 p.m. The laboratory analyst reported that four nanograms per milliliter of delta-9 THC (tetrahydrocannabinol), the active parent ingredient of the psychoactive ingredient in marijuana, were present in the blood draw.
The Battle of the Experts The Prosecution Experts
The centerpiece of the prosecution's case was the testimony of its DRE expert, who from an examination of the police report, an interview with an emergency room doctor, a visit of the scene, viewing Google Earth aerial photographs, and a review of the toxicologist's report opined that defendant was driving under the influence of marijuana and that driver input caused the collision. The expert employed a standardized 12-step protocol to evaluate the symptoms or signs of drug use and to determine whether a suspect was under the influence of a drug and, if so, what drug. He performed only 4 of the 12 steps in defendant's case. No field sobriety tests were performed. He had qualified as an expert to testify 25 times, continued to read studies on the Internet, and, based on his training and experience, he testified in this case as an expert in drug recognition and the effects on the human body, how marijuana breaks down in the blood and the body, and driving.
According to the expert, symptoms a person who had used cannabis would exhibit include: "[g]reen tongue, lack of convergence, dilated pupils, elevated heart rate, elevated blood pressure, confusion, lethargic, being lethargic with their face; kind of carefree." Acknowledging that defendant's pupils were constricted, the expert suggested the constricted pupils might be due to a narcotic analgesic defendant had been administered. There was no smell of marijuana at the scene of the accident, and no marijuana was found in his truck. Defendant did have an elevated heart rate immediately following the collision. While lethargy is a common symptom of cannabis use, the expert testified that a marijuana user can develop psychotic symptoms and become incoherent, combative, and uncooperative. The expert testified that marijuana affects users differently depending on its potency, how it is ingested, and the person's history of use.
He offered a range of opinions about how long the active ingredient delta-9 THC would remain in a person's blood, testifying at one point that it would remain in the blood for up to four hours, but at another point stating it would be "well over the three- to four-hour time range." In response to a question posed by the judge, he testified it would be detectable for up to a day after smoking. But he also testified it would not be detectable up to a day, and ultimately, he could not answer the judge's question, "What would be the maximum amount of time in your experience, skill and training that you believe THC would remain in any person's bloodstream, maximum time, and be detected?" Later he testified delta-9 THC only stays in the blood for a little over an hour.
The DRE expert cited a variety of reactions to marijuana, acknowledging that THC affects people differently. But smoking marijuana impacts driving skills by affecting motor skills, a person's ability to track and maintain a position on the road, perception, judgment, and short-term memory. If a blood test showed delta-9 THC, then the expert would conclude the person had smoked marijuana within three to four hours. He testified it is advisable to predict how someone will act based simply on the amount of THC in his or her system.
Although, as the court admonished the jury, the DRE expert was not qualified as an accident reconstructionist, he nevertheless opined that defendant's truck could not have hydroplaned or skidded across the lanes of traffic. He insisted that defendant had to turn the truck into the westbound lanes of traffic. He acknowledged that tire condition can contribute to loss of rolling friction, but he did not consider the condition of defendant's tires in reaching his opinion. He opined that neither the rain nor the condition of the roadway contributed to the collision; rather, the exclusive cause of the collision was defendant's impairment. He based his opinion on his own experience driving his Ford Crown Victoria with specialized police suspension and the fact that he had seen other vehicles take the same roadway without slipping. He concluded defendant was under the influence because otherwise he should have been able to maintain his vehicle on the road since he had successfully maneuvered various curves prior to this one and should have been able to navigate this one as well.
The prosecutor's accident reconstructionist considered multiple factors that might have contributed to the collision. While he disputed the defense expert's calculation of critical speed, he testified there were many factors that might have contributed to defendant's loss of control on the curve. He opined that the rain, the condition of the asphalt, the painted surfaces, speed, and grade are all variables that might have contributed to the loss of control. He concluded that defendant drove too fast for the wet conditions on the curve and may have accelerated up the hill, applied the brakes going into the curve, or traveled over the painted surface of the road.
In rebuttal to later testimony by a defense expert, the prosecution produced a second DRE expert to reiterate the scientific validity of the DRE 12-step protocol. Although to obtain the best information and to make the best decision all 12 steps should be followed, he testified that doing fewer than 12 steps does not make the suspect any less under the influence, and he would trust the assessment of a DRE-trained officer even if he had only completed a couple of the steps.
The defense sought to undermine the efficacy of the DRE program, the ability of an officer to determine from a toxicology report if a suspect was under the influence, and the DRE expert's opinion that defendant was under the influence and his impairment caused the accident. A forensic psychologist who had qualified as an expert witness over 200 times testified as an expert specializing in the effects of drugs and alcohol, including their relation to driving ability and mental state.
According to the defense expert, the National Highway Traffic Safety Administration (NHTSA) summary of other studies concluded that impairment could not be predicted based on blood THC concentrations alone. Both the NHTSA report and articles in the Forensic Drug Abuse Adviser state "there is no probative value . . . to looking at either the amount of Delta 9 THC or the ratio of Delta 9 DHC to the carboxyline -- that are predictive of behavior." He testified there are no studies demonstrating impairment with four nanograms per milliliter in a suspect's blood; one study suggests seven nanograms could be considered, but most studies recommend consideration of impairment only if the suspect has at least 10 nanograms per milliliter. All studies show that the same person taking the same dose with the same blood results might act totally different.
The defense expert explained the variance in how marijuana is stored in the body and later excreted. When smoked, the delta-9 THC in marijuana goes immediately into the lungs and bloodstream and the user experiences a calming, euphoric effect. The delta-9 THC dissipates rather quickly from the blood but can be detected for a much longer time in the urine and fatty tissue. The excretion is slower for those who have used it for a long time and can be detected for up to two months after ingestion. If a person experiences severe trauma or stress, the marijuana will leach from the fatty tissue at a much greater rate. Thus, the level of cannabinoids in blood drawn shortly after extreme stress will be higher than when drawn under normal conditions when it could be low or even undetectable.
Like the prosecution DRE expert, the defense expert acknowledged that smoking marijuana can affect the smoker's ability to process information, time and distance perception, tracking and maintaining a position in the road, reaction time, and decision making, all of which are important for driving. Yet he noted that marijuana users tend to achieve the desired degree of calmness and do not overdo it. Users tend to adjust their behavior to the effects of the marijuana and, for example, studies demonstrate that marijuana users are more often pulled over for driving too slowly than too fast because they overcompensate by driving slowly. He reported that a study conducted in the Netherlands by means of a series of highway tests found no significant difference between sober drivers and those who had smoked marijuana, except in their ability to maintain a straight path with an average sway from side to side of one to two inches. This study and others emphasize it is inadvisable to try to predict effects based on blood concentrations alone.
The defense expert considered defendant's disruptive behavior following the collision. He concluded that none of his antics were consistent with the effects of marijuana. His behavior would lead him to suspect PCP (phencyclidine) or amphetamine use.
During cross-examination, the defense expert admitted snorting cocaine at a break during a trial in which he was testifying as an expert. He was planning to drive home after his testimony. He also admitted that he liked to try the drugs about which he testified.
The defense also offered the testimony of its own accident reconstruction expert. He described the grade and curves of Foresthill Road immediately preceding the site of the collision and calculated the maximum speed a vehicle could safely navigate those curves ("critical speed"). Whereas the first curve was sharper than the second, he calculated the critical speed was between 50 and 58 miles per hour followed by an 8 percent grade. The critical speed of the second curve was between 64 and 73 miles per hour. The roadway was wet and defendant's tires were in fair condition.
He opined that defendant had not made a left turn across the westbound lanes. Rather, he believed the left rear tire had lost adhesion with the road due to hydroplaning; that is, where water buildup in front of the tire cannot be dissipated by its grooves so a layer of water remains between the tire and the road, which lessens the coefficient of friction and the tire no longer makes traction with the road. The immediate "left turn" that occurred was consistent with the left rear tire having less adhesion than the right rear tire such that the right rear tire's rotational energy was applied to just one side and propelled the vehicle to the left rather than forward. The steep hill increased the need for traction.
The expert also pointed out that the pickup has 60 percent of its weight in the front and 40 percent in the back, thereby making it more likely that on a wet road the back would not be able to stay in contact with the road. He contrasted the pickup with the Ford Crown Victoria driven by the People's DRE expert, which, with its special police package, has a more even distribution of weight.
Thus, the defense expert opined that it was a loss of traction, rather than driver input, that was the most likely cause of the accident. He noted that defendant had successfully navigated the sharp curve before accelerating up the steep grade, and it was unlikely he would have accelerated suddenly on the grade. ...