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State v. Austin

Supreme Court of Idaho

March 6, 2018

STATE OF IDAHO, Plaintiff-Respondent,
JUSTIN KEITH AUSTIN, Defendant-Appellant.

         2018 Opinion No. 20

         Appeal from the District Court of the Fourth Judicial District of the State of Idaho, Ada County. Hon. Michael Reardon, District Judge.

         The district court's judgment of conviction is vacated.

          Eric D. Fredericksen, State Appellate Public Defender, Boise, for appellant. Reed Anderson argued.

          Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent. Theodore S. Tollefson argued.

          BRODY, Justice

         This case addresses whether a defendant accused of DUI can present expert testimony regarding his alcohol concentration at the time he was driving. In April 2015, an Ada County Sheriff's Deputy pulled Justin Keith Austin over for failure to use a turn signal. During the stop, the deputy detected the smell of alcohol, and Austin's appearance further led the deputy to believe he was driving under the influence. After performing a field sobriety test, he arrested Austin and approximately thirty minutes after the initial stop conducted two breath tests that demonstrated alcohol concentrations above Idaho's legal limit. Austin claimed that his consumption of three drinks in a short period of time just before the stop contributed to a rising alcohol concentration as he waited for the breath tests, and sought to introduce expert testimony to that effect. The district court granted the State's motion in limine to exclude expert testimony as to his actual alcohol concentration as irrelevant under the DUI statute's "per se" provision as interpreted by Idaho precedent. On appeal, Austin challenges the decision to grant the State's motion, and alternatively challenges the DUI statute as overbroad or void for vagueness where there is no time limit within which approved alcohol concentration testing must be done to be used as evidence of a crime. The district court did precisely what it is required to do when confronted with the motion in limine. It applied binding case law to grant the motion in limine. We now clarify the law and are compelled to hold that the district court's decision to grant the State's motion in limine constituted an abuse of discretion because it was not consistent with the legal standard we now clarify. We vacate the judgment of conviction.


         Just after midnight on April 5, 2015, Ada County Sheriff's Deputy Richardson observed a vehicle make a left-hand turn to exit a service station without using a turn signal so he conducted a traffic stop. Upon contacting the driver, Justin Keith Austin, Deputy Richardson observed "bloodshot, glassy eyes and a strong odor of alcohol coming out of the vehicle." Austin informed Deputy Richardson that he had recently consumed three alcoholic drinks, and Deputy Richardson then had him perform a field sobriety test. He failed. Deputy Richardson then performed two breath tests on Austin, which showed an alcohol concentration of 0.085 percent for the first test and 0.086 percent for the second. Deputy Richardson conducted the breath tests just over thirty minutes after the initial stop. The State charged Austin under both of Idaho Code section 18-8004's DUI theories: that he drove or was in physical control of a motor vehicle either (1) while under the influence of alcohol or drugs (the "impairment theory"), or (2) with an alcohol concentration of 0.08 percent or more (the "per se theory").

         Austin sought to introduce expert testimony demonstrating that his recent and rapid consumption of alcohol just before being pulled over-three drinks immediately before driving-would have resulted in Austin's alcohol concentration rising for the thirty-minute period from when he was pulled over to when he was tested. In essence, his claim was that his alcohol concentration was not over the legal limit at the time he was physically driving. Austin disclosed to the State a letter from his expert Loring Beals, a clinical toxicologist, that stated, "Based on his gender, height and weight (175 lbs) I calculate that at the time he was stopped his alcohol concentration would have been around .06 to .065 rising to the higher level by the time he was actually tested a half hour later." The State filed a motion in limine seeking to exclude any testimony attempting to extrapolate Austin's alcohol concentration at the time he was driving, or any testimony that Austin's alcohol concentration was rising between the traffic stop and the breath test.

         On March 9, 2016, the district court held a hearing on the motion. Before trial, on March 14, 2016, the court issued its ruling on the motion, stating that extrapolation evidence was irrelevant to the per se theory under binding Idaho precedent, but that Austin could present this evidence to attempt to rebut the State's impairment theory. Austin decided not to call his expert witness. The jury convicted Austin. He timely appealed.


         The admission of expert testimony is reviewed for abuse of discretion. State v. Faught, 127 Idaho 873, 875, 908 P.2d 566, 568 (1995). This Court considers an appeal from a lower court's discretionary decision based on three factors: "(1) whether the trial court correctly perceived the issue as discretionary; (2) whether the trial court acted within the bounds of that discretion and consistent with the applicable legal standards; and (3) whether the trial court reached its determination through an exercise of reason." State v. Pratt, 128 Idaho 207, 211, 912 P.2d 94, 98 (1996).

         III. ...

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