State v. Harvey – 2019 UT App 108 – lay versus expert testimony

2019 UT App 108 – State v. Harvey – lay versus expert testimony

2019 UT App 108
Opinion No. 20170733-CA
Filed June 20, 2019
Third District Court, Salt Lake Department
The Honorable James T. Blanch
No. 161903234
Emily Adams, Attorney for Appellant
Sean D. Reyes and Lindsey L. Wheeler, Attorneys
for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which


The Trial

¶8        The State’s forensic scientist testified that he could not “rule out the possibility” that Harvey’s BAC was below .08 at the time it was tested. He stated that the tests he ran indicated that Harvey’s BAC would have been “around [.07 or .08] and probably within those two numbers.”

¶9        In addition to recounting the details of the arrest, Officer testified that “the average burn-off rate [for alcohol] is approximately .015” per hour. Harvey’s counsel immediately objected to this testimony for lack of foundation.


The jury found Harvey guilty.

¶11      Subsequently, Harvey moved for a new trial, arguing that Officer’s burn-off-rate testimony was improper expert testimony from a lay witness. The district court denied the motion, explaining that Officer had “sufficient training and expertise to relay the information” that he had learned in the police academy “about the average blood alcohol dissipation rate.” The district court imposed a suspended prison sentence and placed Harvey on supervised probation. Harvey appeals.


  1. Erroneous Admission of Officer’s Burn-Off-Rate Testimony

¶15 We agree with Harvey that Officer was not a qualified expert on the subject of alcohol burn-off rates and therefore should not have been allowed to testify about this subject. The Utah Rules of Evidence state that “a witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” Utah R. Evid. 702(a).


¶18 Unlike signs of impairment or the behavior of drug traffickers, the burn-off rate of alcohol from the human system is not something that an officer can observe and form an expert opinion about based on training and experience. See State v. Ohotto, 323 P.3d 306, 310–11 (Or. Ct. App. 2014) (stating that testimony regarding “alcohol absorption and elimination rates” is not derived from an individual’s “training and prior experience as a police officer”). Instead, it is necessarily scientific testimony derived from lab testing, based on technical training, and presented by an expert qualified in that area. Burn-off-rate testimony requires “a formulaic calculation derived from scientific understandings of physiological processes that cannot be achieved through reading a training manual, conducting routine [DUI] investigations in the course of law enforcement, and attending [a training] course.” Id. at 311.

¶19 The error in this case was admitting Officer’s burn-off-rate testimony where the State failed to establish a sufficient foundation that Officer had the necessary scientific expertise, based on education, training, or otherwise, to offer burn-off-rate testimony.

It is not that officers, as a class, can never be qualified to provide such testimony. See State v. Claybrook, 975 P.2d 1101, 1103 (Ariz. Ct. App. 1998) (“The expert witness who presents BAC retroactive extrapolation evidence can be a police officer or the operator of the machine if properly certified and in addition possesses superior knowledge, experience and expertise on the question.” (cleaned up)); Commonwealth v. Gonzales, 546 A.2d 26, 31–32 (Pa. 1988) (holding that a police officer was qualified as an expert on the elimination of alcohol from the bloodstream where he worked in the police laboratory and had specific education in the pharmacology and toxicology of alcohol). But here, no evidence was presented to show that Officer “understood the process of alcohol elimination or relevant factors for consideration.” See People v. Beck, 90 N.E.3d 1083, 1111 (Ill. App. Ct. 2018). Nor was any testimony offered to explain the nature, extent, or depth of his training and education on burn-off rates of alcohol.

¶20 Participating in a course at the police academy where burn-off rates were generally mentioned shows merely that Officer was exposed to information—not that he is an expert in any of the subjects touched on in the course of study.[1] Thus we agree with Harvey that the testimony at trial failed to establish that Officer had sufficient training to qualify as an expert on the subject of alcohol burn-off rates. Therefore, Officer’s testimony about the alcohol burn-off rate was improperly admitted.



¶30 Because the evidence of Harvey’s incapacity to operate a vehicle safely was not so overwhelming as to render the erroneous admission of Officer’s burn-off-rate testimony harmless, we determine that Harvey was prejudiced by the admission of the testimony in question. Therefore, we must vacate his DUI conviction and remand for a new trial.

Utah Family Law, LC | | 801-466-9277


[1] We certainly acknowledge that sufficient education or training can provide a foundational basis for expert testimony. See Utah R. Evid. 702(a) (“[A] witness who is qualified as an expert by . . . training . . . or education may testify in the form of an opinion . . . .”). In the present case, however, Officer’s testimony does not establish anything besides the fact that he “learned” of burn-off rates at the police academy.

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