Opinion
Court of Appeals No. A-10758 Trial Court No. 3PA-09-2602 CR No. 6004
12-11-2013
HARRY M. WATSON, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Kelly R. Taylor, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. W. Michael Perry, Assistant District Attorney, Palmer, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.
MEMORANDUM OPINION
Appeal from the District Court, Third Judicial District, Palmer, John W. Wolfe, Judge.
Appearances: Kelly R. Taylor, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. W. Michael Perry, Assistant District Attorney, Palmer, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Bolger, Supreme Court Justice .
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Judge MANNHEIMER.
Harry M. Watson appeals his conviction for driving under the influence. Watson contends that the trial court abused its discretion when the court failed to grant his eve-of-trial request for a continuance so that he could hire a private attorney. Watson also argues that the trial court abused its discretion when the court failed to grant his subsequent mid-trial request for a continuance, after a government expert witness gave testimony that was purportedly outside the scope of testimony described in the State's pre-trial notice. For the reasons explained in this opinion, we conclude that neither of the trial court's rulings was an abuse of discretion, and we therefore affirm Watson's conviction.
Underlying facts: the State's case against Watson
Around 7:00 in the morning on October 1, 2009, Harry Watson was admitted to the Mat-Su Regional Hospital emergency room, complaining of shoulder pain. Watson was highly intoxicated. Watson's motor home was later found parked in the hospital parking lot.
The State alleged that Watson drove his motor home to the hospital, and that he was under the influence when he did so. Watson's attorney conceded that Watson drove the motor home to the hospital, but the attorney maintained that Watson was sober when he did so. The defense attorney contended that the evidence allowed a reasonable possibility that Watson became intoxicated after he arrived at the hospital — that he drank alcoholic beverages in his motor home in the hospital parking lot, to calm his anxiety before he entered the emergency room. (Watson did not testify at trial.)
The State presented no witnesses who had direct knowledge of when Watson's motor home arrived in the parking lot, or how long Watson stayed in the parking lot before he entered the hospital. To prove its case, and to disprove Watson's asserted defense, the State relied on circumstantial evidence and on the testimony of Dr. Anne Zink, an emergency room physician.
Dr. Zink testified that Watson appeared "acutely intoxicated". She further testified that Watson told her that he had been at the Mug Shot bar, drinking to relieve the pain in his shoulder, and that he had driven to the emergency room afterwards.
According to Dr. Zink, Watson told her that employees of the Mug Shot had taken his set of keys (apparently because they thought that he was not fit to drive), but Watson was able to drive to the hospital because he had a second set of keys. Watson told Dr. Zink that he had driven himself to the hospital, and he assured her that he was now "fine" to drive home.
Because Watson intended to drive himself home from the hospital, the emergency room secretary called 911 to report that an intoxicated patient was planning to drive home. Around 10:00 a.m., State Trooper Lance Jamison-Ewers came to the hospital in response to this warning. By the time the trooper arrived, Watson had been in the emergency room for almost three hours.
When Jamison-Ewers located Watson, he could tell instantly that Watson had been drinking a lot: Watson's eyes were watery and bloodshot, and his breath smelled strongly of alcoholic beverages. Watson told the trooper that he had driven to the hospital that morning from the Big Lake area, and that he had been self-medicating himself with alcohol because his shoulder hurt. Watson also told the trooper that he had not had anything to drink since arriving at the hospital.
(At trial, Watson's attorney contended that the trooper misunderstood Watson's statement. The defense attorney suggested that Watson had meant that he hadn't had anything to drink since being admitted to the hospital emergency room.)
The trooper administered field sobriety tests to Watson, and Watson failed most of these tests. The trooper then placed Watson under arrest and gave him Miranda warnings, but Watson waived his rights and continued to talk. Watson again told the trooper that he had driven to the hospital that morning from Big Lake, and that he had not drunk anything since he arrived at the hospital. Watson never said anything to the trooper about drinking in his motor home while it was parked in the hospital parking lot. In fact, Watson told the trooper that his last drink had been around midnight.
The trooper helped Watson contact a friend to retrieve his motor home and take care of his dog. After this friend arrived, the trooper took Watson to the Wasilla police station, where Watson submitted to a breath test. The breath test result was .115 — significantly over the legal limit of .08, even though Watson had been in the emergency room for over three hours.
The trooper also obtained Watson's consent for releasing the results of the blood test performed at the hospital. This hospital blood test, which was taken at 7:44 in the morning (about 45 minutes after Watson presented himself at the emergency room), yielded an apparent result of .227.
We say "apparent result" because the hospital blood test was conducted using Watson's blood plasma, rather than his whole blood. As explained by the State's expert witness at Watson's trial, the result of a blood plasma alcohol test must be adjusted downward, using a conversion formula, so that it can meaningfully be compared to the .08 percent statutory limit — because the statutory limit is based on the percentage of alcohol in a person's whole blood. The State's expert witness testified that Watson's plasma test result (.227 percent) was equivalent to approximately .192 percent alcohol in Watson's whole blood — still well above the .08 statutory limit.
Underlying facts: Watson's requests for a continuance of his trial
The DUI charge against Watson was filed on October 1, 2009. For the first two months of the litigation, Watson represented himself, but he told the district court that he would be hiring a private attorney. Then, in early December, Watson requested court-appointed counsel. The district court appointed the Public Defender Agency, and Assistant Public Defender Jeff Bradley entered an appearance in Watson's case.
During the first months of 2010, Bradley litigated a pre-trial motion seeking suppression of Watson's hospital blood test result, on the theory that Watson had not validly consented to the release of the test result. In April 2010, a few days after that suppression motion was denied, Bradley announced himself ready for trial.
The State, however, asked for a continuance because two of its witnesses (Trooper Jamison-Ewers, and the emergency room secretary) were unavailable. The court granted the State's request, and the parties agreed that Watson's trial would be scheduled for the first week in May.
The court held a status hearing in Watson's case on Monday morning, May 3rd. A different public defender — Hannah Thorssin-Bahri — appeared for Watson because Jeff Bradley was out of town, representing Agency clients at the Glennallen trial calendar.
Thorssin-Bahri informed the court that Watson's brother had recently given him the funds to hire a private attorney, and that Watson had already met with Attorney Carmen Spiropoulos, who said she was willing to accept his retainer and take the case, once the Public Defender Agency was discharged. Based on these representations, Thorssin-Bahri asked the district court to (1) discharge the Public Defender Agency and (2) delay Watson's trial for at least two weeks, so that Watson could formally hire Ms. Spiropoulos and then proceed to trial with counsel of his choice.
But when the court questioned Watson personally about this matter, it became apparent that Watson was proposing a delay of potentially much longer than two weeks. In particular, Watson told the court that there was a particular pre-trial motion — a suppression motion based on a purported Miranda violation — that he wished to pursue. According to Watson, Bradley had refused to file this motion, but Spiropoulos (the private attorney) agreed that this motion should be filed.
The trial judge stated that he ordinarily did not grant continuances when the request was made on the day before trial, and the judge asked Ms. Thorssin-Bahri if she would be ready to proceed with trial the next day (in the event that the court denied Watson's request to discharge the Public Defender Agency). Thorssin-Bahri indicated that it would be "difficult" for her to be prepared by the next morning. She explained that she had stopped working on Watson's case the previous week, after she learned that Watson had acquired the funds to hire private counsel and that Watson had spoken with Spiropoulos. Thorssin-Bahri also told the judge that she had not reviewed the State's pre-trial discovery materials.
(Thorssin-Bahri did not explain why, even though she ceased her own trial preparation, she failed to alert the court and the prosecutor that Watson intended to hire private counsel, and that she would therefore be seeking a continuance of Watson's trial.)
The prosecutor expressed frustration that this was the first he had heard about a request for a continuance. He told the court that he had already scheduled all of the witnesses for Watson's trial, including the emergency room doctor and an expert witness from the state crime lab; the prosecutor told the court that these two witnesses would be difficult to reschedule. However, the prosecutor also expressed concern that denying the requested continuance would create "appellate issues", given a defendant's right to counsel of their choice. The prosecutor therefore told the court that he would not oppose Watson's request for a continuance, provided that Watson agreed to waive all relevant time under the speedy trial rule.
Despite the prosecutor's lack of objection, the district court denied Watson's request for a continuance.
The court noted that, weeks earlier, Watson had announced that he would be ready for trial in May. The court also noted that the purpose of Watson's trial status hearing was only to determine the order in which district court cases would go to trial that week — not to identify the cases that were ready for trial. Based on this, the court found that Watson's motion for a continuance was not timely.
The district court further found that Watson had failed to exercise due diligence in seeking private counsel, and that Watson had failed to show that there was good cause for discharging the Public Defender Agency or for delaying his trial.
In addition, the court expressed skepticism regarding Thorssin-Bahri's assertion that she would need more than one day to prepare for Watson's trial. However, the court told Thorssin-Bahri that if she did encounter problems, the court would be willing to entertain a mid-trial motion for a continuance.
The next day, when the parties returned to court to begin Watson's trial, Thorssin-Bahri renewed Watson's objection to going forward. She argued that Watson had a constitutional right to counsel of his choice. She also asserted that she had just received late discovery materials from the State.
In addition, Thorssin-Bahri told the court that she believed there was merit to the Miranda suppression motion that Watson wanted to file. Thorssin-Bahri apparently contemplated filing this motion herself, but she told the court that she had not had sufficient time to draft the motion because she was busy preparing for trial.
The trial judge again denied the request for a continuance. The judge rejected the notion that Watson was being deprived of his constitutional right to counsel of his choice — since nothing prevented Watson from hiring the private attorney and going to trial that day. The issue, the judge emphasized, was whether Watson could wait until the day before trial to tell the court that he wanted to switch attorneys, and then demand a continuance.
The trial judge also rejected the notion that Thorssin-Bahri was unprepared for trial. In particular, the judge noted that Thorssin-Bahri had failed to offer any specific way in which she perceived her trial preparation to be inadequate.
Finally, with regard to Watson's proposed Miranda suppression motion, the judge noted that the time for filing and litigating pre-trial motions had already passed. Watson's first public defender, Jeff Bradley, had in fact litigated a suppression motion (the unsuccessful attempt to suppress the hospital blood test result), but Bradley had apparently decided not to pursue a Miranda motion. The judge noted that it was up to Bradley, not Watson, to decide which pre-trial motions to pursue, and the judge stated that he was not willing to re-open the litigation of suppression motions.
Why we uphold the trial court's denial of Watson's requests for a continuance
On appeal, Watson argues that the trial judge's denial of his requests for a continuance violated his right to have counsel of his choice (i.e., Spiropoulos). In support of this argument, Watson relies on the supreme court's decision in Klockenbrink v. State, 472 P.2d 958 (Alaska 1970). In Klockenbrink, the supreme court ruled that the trial judge committed error by not granting a continuance that would have allowed the defendant to proceed to trial with the attorney whom he had previously hired. Id. at 963-66.
We conclude that Watson's case is more analogous to the facts of Gottschalk v. State, 602 P.2d 448 (Alaska 1979). The defendant in Gottschalk began trial representing himself; then, following the first day of jury selection, Gottschalk obtained a loan from a friend to hire an attorney. The next day, Gottschalk informed the trial judge that he had hired an attorney, and he requested a four-day continuance of the trial proceedings to allow this attorney to prepare. The trial judge denied the requested continuance. Later in the trial, Gottschalk's newly-hired attorney came to court; but when the trial judge asked the attorney if he was willing to begin representing Gottschalk immediately, the attorney told the judge that he would not enter an appearance for Gottschalk unless he was given more time to review the case. The trial judge again denied a continuance.
Gottschalk, 602 P.2d at 450.
Ibid.
On appeal, the supreme court held that the trial judge had not abused his discretion when he refused to continue Gottschalk's trial:
We acknowledge that a continuance of several hours or one day may have been reasonable in this case. However, we cannot say that the trial court's denial constituted an abuse of discretion. Any delay would have seriously inconvenienced the court, ... the prosecutor, and at least one witness who traveled from [another city]. "While blind adherence to the requirements of court calendaring should never be used as an excuse to deny one accused of a serious crime the fundamental right to organize his defense, there is a compelling public interest in the prompt and orderly disposition of such matters." Green v. State, 544 P.2d 1018, 1023 (Alaska 1976) (footnote omitted).Gottschalk, 602 P.2d at 451.
Returning to the present case, Watson was represented by the Public Defender Agency for several months before trial. Shortly before the scheduled trial, Watson obtained money to hire a private attorney, and he consulted a private attorney, but neither Watson nor the Public Defender Agency informed the trial judge or the prosecutor that Watson wished to hire a private attorney until the day before trial.
Moreover, even when Watson informed the court of his intentions, he also told the court that his chosen private attorney had not yet formed an attorney-client relationship with him, nor had the private attorney begun to prepare the case for trial.
We further note that Watson told the court that one of his primary reasons for wanting to employ the private attorney was that this attorney, unlike his original public defender, was willing to pursue a new suppression motion — a motion based on the assertion that Watson's waiver of Miranda rights was invalid. Thus, Watson was not merely requesting time for the new attorney to prepare for trial; he was also requesting a re-opening of the pre-trial litigation.
As the supreme court indicated in Gottschalk, a trial judge has considerable discretion regarding whether to grant or deny a continuance under these circumstances. Potentially, in Watson's case, a continuance of a day or two might have been reasonable. But both the trial judge and the prosecutor had relied on the scheduled trial date. Moreover, the trial judge could reasonably conclude that Watson had not shown diligence, in that Watson waited until the day before trial to raise this issue.
The trial judge could also reasonably conclude that a continuance of one or two days would not be sufficient — since Watson's proposed new private attorney had not yet formed an attorney-client relationship with Watson, and since one of Watson's main goals in hiring the new attorney was to re-open the litigation of suppression motions.
Given the circumstances here, and given the "compelling public interest in the prompt and orderly disposition of [criminal] matters" (Gottschalk, 602 P.2d at 451), we conclude that the district court did not abuse its discretion when it denied Watson's request for a continuance to allow him to hire a private attorney.
We now turn to Watson's second request for a continuance — the request he made on the first day of trial, based on the assertion that his court-appointed attorney, Ms. Thorssin-Bahri, needed more time. Watson notes that Thorssin-Bahri told the court (1) that she had just received new discovery materials from the State, and (2) that she wanted to delay the trial so that she could litigate Watson's proposed Miranda suppression motion.
Although Thorssin-Bahri asserted that she had just received additional pre-trial discovery, she did not identify any specific aspect of Watson's case that needed more preparation in light of that late discovery. We note that the trial judge expressly told Thorssin-Bahri that he would be willing to entertain a mid-trial motion for a continuance if Thorssin-Bahri believed that Watson was prejudiced by the late discovery, but Thorssin-Bahri never made such a motion.
This leaves the issue of whether Watson was entitled to a continuance so that Thorssin-Bahri could formulate and litigate Watson's proposed new Miranda suppression motion.
As the trial judge noted, the deadline had already passed for filing and litigating pre-trial motions. Watson's first public defender, Jeff Bradley, had not ignored this deadline; he had in fact filed a timely suppression motion. But he had apparently decided not to pursue a Miranda motion.
Even though Watson and Thorssin-Bahri may have disagreed with Bradley's decision not to file the proposed Miranda motion, it was up to Bradley to decide which pre-trial motions to pursue. Watson did not have a right to second-guess Bradley's decision by simply having a different attorney — either Spiropoulos or Thorssin-Bahri — enter the case at the last minute and ask for a resumption of the pre-trial motion practice.
The trial judge did, of course, have the discretion to re-open the litigation of pre-trial motions. Indeed, in Fox v. State, 685 P.2d 1267, 1270 (Alaska App. 1984), this Court held that it is an abuse of discretion for a judge to deny a defendant's pre-trial motion solely on the ground that the motion was filed after the motions deadline. But as we noted in Fox, the situation is different if the late-filed motion would prejudice the government, or interrupt other proceedings, or delay the trial. Ibid.
Here, the request to re-open the litigation of pre-trial motions was made on the first day of trial. Given the timing of the request, and given the other circumstances here, we conclude that the trial judge did not abuse his discretion when he denied Watson's request.
In sum, we uphold the district court's denial of Watson's two requests for a continuance of his trial.
Underlying facts: the expert testimony concerning the alcohol content of Watson's blood plasma, and concerning the equivalent result if the test had been conducted on Watson's whole blood
Watson's attorney filed a mid-trial motion asking the district court to suppress the results of the blood test that was performed at the hospital after Watson came to the emergency room. The defense attorney contended that the State had failed to show that this blood test was conducted according to recognized standards and protocols.
The trial judge ruled that the question was not whether the blood test result should be "suppressed"; rather, the question was whether the State had offered an appropriate evidentiary foundation to justify admission of the hospital blood test results. To provide that foundation, the prosecutor called Karen Laughlin, a medical technician from the Mat-Su Regional Medical Center.
Laughlin testified that she personally drew Watson's blood and tested it for its alcohol content. However, Laughlin clarified that she had not tested the alcohol content of Watson's whole blood, but rather the alcohol content of Watson's blood plasma (i.e., the fluid portion of the blood, without the red and white blood cells and the platelets).
See the Wikipedia article, "Blood cell": http://en.wikipedia.org/wiki/Blood_cell (August 5, 2013).
Watson's attorney apparently did not perceive any problem with this aspect of Laughlin's testimony. But Laughlin's explanation prompted the trial judge to offer his own sua sponte objection to the admission of the test result:
Prosecutor: I seek to admit [the document] that states the medical ethanol level [of Watson's blood]. So, this is — it's not a conversion. There's no mathematics [involved]. ...
The Court: Well, [I have] sat through one or more experts testify[ing] from the crime lab, [and] what [Laughlin] tested was not whole blood. And [whole blood and plasma] are not equivalent; [that] is my understanding. ... She didn't test [Watson's] blood; she tested one portion of [the] blood, is [my] point.
Prosecutor: I don't see anywhere in the law where it says "whole blood".
The Court: The law says "per deciliter of blood". ... We don't have that. ... We have "per deciliter of serum", or ... whatever ... measure she used.
Prosecutor: Okay. Well, then, ... I'm going to ask [another] expert [to] make the [equivalency] calculation.
At this point, Watson's attorney objected to the prosecutor's plan to offer more expert testimony. The defense attorney contended that she had only just learned (during the lab technician's testimony) that the hospital's alcohol test was conducted on Watson's blood plasma, not his whole blood. The defense attorney further contended that the State's proposed expert testimony — a description of how to convert a plasma test result to a whole blood test result — was not covered by the State's pre-trial notice of expert testimony, and that this testimony should therefore be excluded.
The trial judge ruled that the proposed expert testimony was within the State's pre-trial notice. The judge then allowed the prosecutor to call Colleen O'Bryant, a forensic scientist from the State Crime Laboratory. O'Bryant testified that "it's generally accepted" that the alcohol content of blood serum or plasma will be "about 15 percent higher than the [alcohol content of the] whole blood". According to O'Bryant, this meant that Watson's blood plasma reading of .227 percent alcohol was equivalent to about .192 percent alcohol in his whole blood.
On cross-examination, O'Bryant acknowledged that the equivalency varied from person to person, and that a person's blood plasma reading could be anywhere from 14 to 16 percent higher than their whole blood reading.
(If a conversion factor of 16 percent is used, Watson's plasma reading of .227 percent would be equivalent to a slightly lower whole blood reading — a little less than .191 percent.)
On appeal, Watson renews his argument that the State failed to give his attorney proper pre-trial notice of O'Bryant's testimony concerning the relationship between the alcohol content of blood plasma and the alcohol content of whole blood. Because of this lack of notice, Watson asserts that he should have received a continuance so that his attorney could prepare for this testimony.
There are three problems with this argument.
First, Watson's trial attorney did not ask for a continuance to research this issue and prepare a rebuttal to O'Bryant's testimony. Instead, the defense attorney asked the district court to exclude both O'Bryant's testimony and the underlying blood test result.
But Alaska law disfavors suppression as a remedy for a discovery violation, and Watson did not seek any lesser remedy. As this Court explained in Riney v. State, 935 P.2d 828, 838 (Alaska App. 1997):
See our discussion of this issue in Friedmann v. State, 172 P.3d 831, 833-34 (Alaska App. 2007).
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Even assuming that [Criminal] Rule 16 was violated [by the government], [the trial judge] correctly held that Riney was not entitled to suppression of [the] statements [at issue]. Under Bostic v. State, 805 P.2d 344, 347-48 (Alaska 1991), the appropriate remedy was at most a mistrial. However, Riney never sought a mistrial; he asked only for suppression of the evidence.
A second problem with Watson's argument is that, even if we assume that O'Bryant's testimony fell outside the State's pre-trial notice, this would not prove that the State violated its discovery obligations.
The record strongly suggests that, until the trial judge interjected his own sua sponte objection to the admission of the blood plasma test result, neither the prosecutor nor the defense attorney understood that there was any significant difference between testing a person's blood plasma and testing a person's whole blood. As can be seen from the colloquy between the prosecutor and the trial judge (quoted above), the prosecutor did not plan to present any testimony about how to convert a blood plasma test result into a whole blood test result — because he thought that the plasma test result was admissible on its own terms.
Once the trial judge raised his objection to the admissibility of the plasma test result, the prosecutor was entitled to respond to the judge's objection. In this instance, the prosecutor needed to answer the judge's objection by presenting expert testimony concerning how to convert a blood plasma test result into an equivalent whole blood test result. Even if we accept Watson's contention that this was a new area of testimony, an area not expressly covered by the State's pre-trial notification, it was nevertheless proper for the trial judge to allow the prosecutor to present the witness's testimony — because the judge had just raised a new factual issue in the middle of trial.
(Compare Alaska Evidence Rule 614, which guarantees parties the right to cross-examine witnesses called by the trial judge.)
Finally, Watson has not presented any reason to think that, had he been given a continuance, he could have successfully challenged O'Bryant's testimony in a way that would lead to a different verdict.
We acknowledge that the case law in this area suggests that there is no single mathematical formula for converting a blood plasma or blood serum alcohol reading into a whole blood alcohol reading. Courts have recognized that there is a range of valid conversion ratios, depending on various aspects of blood chemistry. See People v. Thoman, 770 N.E.2d 228, 230 (Ill. App. 2002) (because blood serum test results "can predictably be anywhere from 12% to 20% higher" than whole blood test results, blood serum test results are converted into whole blood test results by dividing the serum result by a factor between 1.12 and 1.20); Commonwealth v. Newsome, 787 A.2d 1045, 1049 (Pa. 2001) (recognizing a range of conversion factors from 1.10 to 1.35); State v. Mac Cardwell, 516 S.E.2d 388, 391 (N.C. App. 1999) (relying on expert testimony that a blood plasma test result should be adjusted by a conversion factor of 1.18).
Some jurisdictions have established a particular value for the conversion factor by administrative regulation. See, e.g., 20 Ill. Admin. Code § 1286.40 (2012) (declaring that the concentration of alcohol in blood serum or blood plasma should be "divided by 1.18 to obtain a whole blood equivalent").
Here, the State's expert witness appears to have used a conversion factor of 1.18 to arrive at her conclusion that Watson's blood plasma reading of .227 percent was equivalent to a whole blood reading of close to .192 percent. However, even if the State's expert had used the highest conversion factor described in the case law (a divisor of 1.35), the resulting calculation would still have yielded a whole blood alcohol content of .168 percent — more than twice the legal limit.
We additionally note that Watson never seriously disputed that he was intoxicated when his blood was tested at the hospital. During the defense opening statement, Watson's attorney (Ms. Thorssin-Bahri) told the jury that Watson was not contesting the fact that he was intoxicated when he was treated in the hospital emergency room. Rather, Thorssin-Bahri told the jury that Watson was not guilty of driving under the influence because he was sober when he drove to the hospital — that he became intoxicated only after he arrived in the hospital parking lot, before he entered the emergency room.
Thorssin-Bahri emphasized that the State had no witness who could testify to the exact time when Watson drove into the hospital parking lot, nor any witness who could describe the quality of his driving on his way there. She acknowledged that Watson's statements to the emergency room doctor and the state trooper were apparently inconsistent with this version of events, but she argued that Watson had been intoxicated, confused, and in pain when he was questioned by the doctor and the trooper, and that Watson's answers about when he last took a drink had been misunderstood.
During the State's closing argument, the prosecutor argued that it was a "no-brainer" that Watson's blood alcohol level exceeded .08 percent, given the testimony that Watson's .227 percent blood plasma test result was equivalent to a whole blood test result of .192 percent. Watson's attorney did not dispute this equivalency. Instead, she returned to the theme of her opening statement: that the State had failed to prove, beyond a reasonable doubt, that Watson was intoxicated when he drove to the hospital.
In sum, we conclude that the trial judge properly allowed the State to present the expert testimony concerning the relationship between the alcohol content of a person's blood plasma and the alcohol content of a person's whole blood. And in any event, Watson has failed to show that he was prejudiced by the judge's decision.
Conclusion
The judgement of the district court is AFFIRMED.