Motion To Exclude Retrograde

DEFENDANT’S MOTION TO EXCLUDE EVIDENCE OF RETROGRADE EXTRAPOLATION

COMES NOW the Defendant, by and through his undersigned attorney, pursuant to §§ 90. 105(1), 90.702, and 90.403, Fla. Stat., and moves in limine to prevent the admission of any testimony, documents and/or other evidence concerning the opinion of witnesses regarding retrograde extrapolation, and in support thereof states as follows:

1. The Defendant is charged in Count One with DUI with damage, and in Count Two with DUI, which allegedly occurred on April 18.
2. The State has listed Ms. H as an expert in the field of retrograde extrapolation.
3. Ms. H testified she has not been asked to perform retrograde extrapolation in this matter, thus she could not testify regarding the results of those calculations during her deposition.
4. Ms. H is not an expert in the field of retrograde extrapolation. In her sworn deposition in this matter, she testified as follows:
a. Outside of her training, she has only performed retrograde extrapolation a handful of times (5 or less), and prepared only a couple of reports regarding the results.
b. Any retrograde extrapolation calculations she performed would have to be reviewed by another analyst.
c. She has never previously testified in court regarding retrograde extrapolation.
5. Pursuant to §§ 90.105(1) and 90.702, Fla. Stat., the Court shall determine preliminary questions concerning the qualifications of an expert witness. The determination of a witness’s qualifications to express an expert opinion is peculiarly within the discretion of the trial judge. Ramirez v. State, 542 So. 2d 352, 355 (Fla. 1989).
6. Ms. H testified that in order to perform retrograde extrapolation calculations, she would need to know the time any alcoholic beverages were consumed.
7. The Defendant did not make any statements regarding what time he consumed any alcoholic beverages, and the State has not provided any statements purportedly made by him to defense in Discovery. Thus, the State is unable to provide Ms. H with information regarding when he last consumed alcoholic beverages, and by her own testimony, she is unable to perform retrograde extrapolation calculations in this matter.
8. Ms. H also does not have any information regarding how much or what kind of food the Defendant had consumed prior to the accident. The presence of food in the stomach affects the rate of the alcohol’s absorption and elimination in the body.
9. Thus, without knowledge of when alcoholic beverages and/or food were last consumed by the Defendant, any evidence or testimony of retrograde extrapolation in this matter would be pure speculation by Ms. H. Such testimony would not be based upon sufficient facts or data, as required by § 90.702, Fla. Stat., and thus should be excluded.
10. The probative value of the evidence is substantially outweighed by the danger of unfair prejudice against the Defendant, and thus is inadmissible, pursuant to §§ 90.403, Fla. Stat.

WHEREFORE it is respectfully requested that this Motion be granted, and the State be precluded from admitting any testimony, documents and/or other evidence concerning the opinion of witnesses regarding retrograde extrapolation.