Male: The third one being the hand pat and the fourth one being a finger count, and for purposes of this hypothetical, let’s assume that she exhibited signs of being under the influence on all four of those tests.   

Darryl Genis: Same objection to all of that information. 

Male: Understood; record notes and it’s overruled. 

Male: Did you hear that? 

Denise Lyons: Yes, I did. 

Male: Okay.  Let’s assume, as you testified, that there was a blood test that was taken at 9:00 or blood sample, I’m sorry, blood sample that was taken at 9:42 and that the results of that were .08 blood alcohol content.  Now is there anything else that would be helpful in making a retrograde analysis?   

Denise Lyons: No, I think I have everything I need. 

Male: You need a few minutes? 

Denise Lyons: Yes.  Okay.   

Male: Okay, Ms. Lyons, what do those – what do your calculations tell you? 

Denise Lyons: Well, based on the assumption, the hypothetical that was given, and the certain assumptions that need to be made, one being that the individual was in good health and that the alcohol was fully absorbed at the time of driving, extrapolating the .08 that was obtained from the blood sample drawn at 9:42 back to a drive time at 8:00, they would be – the alcohol concentration at 8:00 would be a .105. 

Male: .105? 

Denise Lyons: Yes.   

Male: Now, .105 is higher than a .08.  Yes. 

Denise Lyons: Yes, it is. 

Male: How long after the driving behavior was the blood sample taken? 

Denise Lyons: One hour and 42 minutes.   

Male: All right, would that decrease from a .105 to .08 be consistent with your experience with elimination? 

Denise Lyons: Yes.   

Male: Are the facts that have been provided consistent with someone who’s under the influence of alcohol? 

Denise Lyons: Yes. 

Male: Do you have an opinion, a professional opinion, based on your training and experience as to whether or not the defendant was under the influence at the time that she was driving the car on April 11, 2007? 

Denise Lyons: Based on the hypothetical that the – that was the – I’m sorry.  Based on the items that were submitted to me and the observation by the officer, also combined with the blood alcohol concentration, I would say that the person was impaired for the purposes of safely operating a motor vehicle. 

Male: Thank you, Ms. Lyons.  That’s all the questions I have.   

Male: All right.  Cross-examination. 

Darryl Genis: One minute ____ ____, Your Honor.  You’ll probably be handling this.  Good morning, Ms. Lyons. 

Denise Lyons: Good morning.   

Darryl Genis: Are you familiar with Dr. Kurt M. Dubowski?   

Denise Lyons: I haven’t met him.  I’ve read some of his writings, yes. 

Darryl Genis: Are you professionally acquainted with his writings in the field of blood alcohol and driving? 

Denise Lyons: I’ve read some of his articles, yes. 

Darryl Genis: Have you relied on any of his articles?   

Denise Lyons: Yes. 

Darryl Genis: Is he considered to be a respectable authority in the field of blood alcohol and driving? 

Denise Lyons: I would say so.   

Darryl Genis: What about Dr. A. W. Jones?  Have you read any of his articles? 

Denise Lyons: Yes, I have. 

Darryl Genis: And have you relied on his articles? 

Denise Lyons: I’ve used them – I would say that I’ve used them to help me form my opinions. 

Darryl Genis: Okay.  Let’s talk about qualifications.  Is it fair to say that you do not have a Ph.D.? 

Denise Lyons: Yeah, that’s fair. 

Darryl Genis: You don’t have an M.D. 

Denise Lyons: No. 

Darryl Genis: You don’t have an O.D. 

Denise Lyons: No. 

Darryl Genis: Do you have a master’s? 

Denise Lyons: No. 

Darryl Genis: What was your four-year degree in? 

Denise Lyons: Animal science. 

Darryl Genis: Animal science? 

Denise Lyons: Mm-hm. 

Darryl Genis: And what about your studies in four years of animal science had to do with a human being’s ability to drive an automobile? 

Denise Lyons: Specifically to drive an automobile, nothing. 

Darryl Genis: And what about your four years of study in animal science had to do with the effects of alcohol on a human being? 

Denise Lyons: My four years in college covered a wide variety of things.  The animal science major is very, very equivalent to a premed degree, and as far as the physiology, anatomy, endocrinology systems in the body, I think that I have – it provided a lot of background knowledge to make those – to understand the groundwork for understanding how alcohol is processed in the body.  Certainly alcohol metabolism was covered in organic chemistry. 

Darryl Genis: The human body metabolism of alcohol is covered in organic chemistry?   

Denise Lyons: No, the chemical pathways, the actual chemical reactions. 

Darryl Genis: How long have you worked at the Ventura County Sheriff’s Crime Lab?   

Denise Lyons: Eighteen years. 

Darryl Genis: Where did you work before that? 

Denise Lyons: Before that, I worked at Roche Biomedical Laboratories in Sacramento.   

Darryl Genis: And what of your duties at that laboratory had to do with driving or alcohol consumption other than attending Christmas parties? 

Male: Judge, I object to the nature of the last remark. 

Darryl Genis: I’ll withdraw the last comment. 

Denise Lyons: Would you please repeat the question?   

Darryl Genis: Without the last comment, I’d be happy to.  What of your duties at that job had anything to do with driving an automobile and/or the absorption, elimination of alcohol or the effects of alcohol on the abilities to drive? 

Denise Lyons: My duties at that job were performing analysis for forensic urine drug screening which covered – which is background for all of the analysis that I do at this time.   

Darryl Genis: Your Honor, that’s non-responsive.  Motion to strike. 

Male: It’s declined.   

Darryl Genis: At – what was that employment again?  What was it called? 

Denise Lyons: Roche Biomedical Laboratories. 

Darryl Genis: Okay, we’ll just call it medical laboratories ’cause your voice is soft and I couldn’t hear the words loud enough to understand what you were saying.  Did your job duties include determining whether or not somebody was safe to drive an automobile? 

Denise Lyons: No. 

Darryl Genis: Did they include determining whether or not a person’s ability to drive an automobile were affected by the amount of alcohol that they consumed? 

Denise Lyons: No, it did not. 

Darryl Genis: So when I asked you what of that job had anything to do with the ability to drive a motor vehicle as it would be affected by consumption of alcohol, your answer should have been “nothing.” 

Male: Objection, Your Honor.  He – she needs to answer the question and relevance.  This is 19 plus _____. 

[Crosstalk] 

Male: All right, sir.  As I told Mr. Genis, I just want grounds for the objection on both sides.  I want the same rules to apply for both counsel.   

Male: Relevance.   

Male: You can rephrase it. 

Darryl Genis: Is it true that your job there at that laboratory had nothing to do with a person’s ability to drive a motor vehicle or the effects of alcohol thereon? 

Denise Lyons: My job had nothing to do with a person’s ability to drive a motor vehicle. 

Darryl Genis: Okay, and you’re not a biased witness, are you? 

Denise Lyons: No. 

Darryl Genis: Okay, and that’s why you were able to answer that question right the first time, right?   

Denise Lyons: I’m sorry.  I don’t understand what you’re asking me.   

Darryl Genis: How much of your time at the Ventura County Sheriff’s Crime Lab has been spent in the blood alcohol section?   

Denise Lyons: Approximately 50 percent of my time since 19 – I’m sorry – since 2004. 

Darryl Genis: Okay, you’re a salaried employee, right? 

Denise Lyons: Yes, I am. 

Darryl Genis: You get a salary and you get a compensation package which includes vacation, medical, dental, retirement, pension.  All of that sort of stuff is all lumped into your contract, right?   

Denise Lyons: Yes. 

Darryl Genis: Okay, and have you ever sat down and added up the value of all those things to figure out what the true hourly pay is?   

Denise Lyons: No. 

Darryl Genis: Okay.  Now, you know the difference between a professional athlete and an amateur athlete?   

Male: Objection.  Relevance. 

Darryl Genis: It’s foundational. 

Male: All right.  It’s overruled. 

Denise Lyons: No. 

Darryl Genis: An amateur is somebody who doesn’t get paid for what they’re doing.  You’re not here for the love of God, are you, today?   

Male: Objection.  Improper question. 

Male: It’s overruled.   

Denise Lyons: I’m – 

Darryl Genis: You’re on the clock right now, aren’t you? 

Denise Lyons: Yes, I am. 

Darryl Genis: You’re getting paid for being here, aren’t you? 

Denise Lyons: I’m getting paid my normal salary. 

Darryl Genis: How many times have you testified in court? 

Denise Lyons: Approximately 175 times.   

Darryl Genis: How many of those times was the first lawyer to question you a representative of the Ventura County District Attorney’s Office?   

Denise Lyons: I believe all of them. 

Darryl Genis: How many times have you taken the stand to testify where the first lawyer to question you was a defense attorney from either the private bar or –? 

Male: Hold on a second.   

Male: Your Honor, it probably regards to the earthquake training, if we want to take a recess.  It should be over in about ten. 

Male: Your attention please. 

Male: Okay, one second.   

Male: Exercise, exercise, exercise.  The Golden Guardian Exercise is commencing at this time.  A simulated earthquake is now in Southern California.  This is only an exercise.  Please remain at your work areas and conduct business normally.   

The Golden Guardian Exercise is commencing at this time.  A simulated earthquake is now hitting Southern California.   

Male: I’d like to simulate those and get ______. 

Male: This is only an exercise.  Please remain at your work area and conduct business normally.   

Male: All right, I think what we’ll do to wait for the hum in the background – it sounds like we’re all on a battleship here or something.  We’ll wait for that to stay and take a recess for about 15 minutes at this time.  How about until 20 after 10:00? 

Remember the court’s admonition not to talk about the case or form or express any opinion until you’ve heard all the evidence and begun your deliberations.  Again, feel free to go to the cafeteria.  Come back with drinks if you wish to.  We’ll see you back here at 20 after 2:00 – 20 after 10:00. 

Male: Judge, did you say 20 after? 

Male: Twenty after, yes.  You can step down, Ms. Lyons, if you want. 

Denise Lyons: Okay.   

Male: Your attention, please.  The simulate earthquake has now – 

Male: Remain seated and come to order.  Court is again in session. 

Male: All right.  We can go back on the record in the matter of People v. Mary D. Selznick.  Our jury is present with the alternate.  Defendant is present with both counsel.  People are present.  Mr. Genis, you can pick up where you left off.   

Darryl Genis: Unfortunately, I’m gonna have to try – since my computer rebooted itself during the earthquake break, 75 percent of the programs I had open are closed.  Okay, so Your Honor, can you refresh my recollection as to the last question that I had because my computer marking – 

Male: I’d have to have you play it back, have the judicial system play it back.  How easy is that, Ms. Lopez? 

Darryl Genis: Just the last question.   

Female: I’d have to stop recording and –  

Darryl Genis: No, don’t do that.  I’ll figure it out.  What’s – oh, right, right.  So you’ve testified 175 times for the prosecution and zero times for the defense, right? 

Denise Lyons: I’ve – I’m sorry.  I’ve – 

Darryl Genis: The _____ ____ is okay. 

Male: Objection, Your Honor. 

Male: All right, you can answer the question now. 

Denise Lyons: I’ve testified approximately 175 times and of those times, I may have been subpoenaed by the D.A.’s office. 

Darryl Genis: Don’t tell me you’re under subpoena any of those times if you know that you weren’t.   

Denise Lyons: I’m sorry.  I don’t understand what you were just saying? 

Darryl Genis: How many times have you received a subpoena from a defense attorney to come to court to testify?  To come to court to testify, not the Department of Motor Vehicles? 

Denise Lyons: From a defense attorney? 

Darryl Genis: Yeah. 

Denise Lyons: A handful. 

[Crosstalk]  

Darryl Genis: Do you know? 

Denise Lyons: No, I’ve actually received – I don’t know how many.  I haven’t tracked it, but I have received subpoenas from defense attorneys, from private attorneys. 

Darryl Genis: And how many of those times did you actually come to court and testify for that defense attorney? 

Denise Lyons: I don’t think that I have.  I don’t recall.   

Darryl Genis: All right, so are you aware of the process whereby your lab would make a motion to quash those subpoenas because it’s a lab that exists for the benefit of the prosecution and it doesn’t like to give away its resources? 

Male: Objection.  Relevance. 

Male: Sustained.   

Darryl Genis: Okay, but just so that we’re clear, you have testified for the prosecution 175 times, right? 

Male: Objection.  Asked and answered. 

Darryl Genis: Your Honor, proper objection on cross. 

Male: All right.  It sounds like it’s a preliminary lead-up question.  Overruled.   

Darryl Genis: And you’ve testified for the defense zero times in spite of the fact that you’ve been subpoenaed by the defense.  You’ve managed to avoid doing stuff. 

Male: Objection, last statement. 

Male: Sustained as to like and portion. 

Darryl Genis: I’ll rephrase.  I’ll rephrase.  You’ve been subpoenaed by the defense.  You said that, right?   

Denise Lyons: Yes. 

Darryl Genis: You’ve never testified for the defense.  You also said that, right?   

Denise Lyons: I actually don’t recall if I have or not.  I know that there were several case – I don’t recall.  It’s been 18 years that I’ve worked in the laboratory.   

I receive hundreds of subpoenas that I don’t go to court on.  I don’t track how many I’ve testified on, for which side or that, and I’m not here as a representative for either side.  I’m here because I’ve been subpoenaed to come to court and testify. 

Darryl Genis: And you know what you’re gonna testify to before you come to court, obviously, don’t you? 

Denise Lyons: I have the facts of the case and I have my opinion, so I have an idea. 

Darryl Genis: Well, okay, how many times have you testified in a breath test case, breath alone?   

Denise Lyons: I think maybe four. 

Darryl Genis: Four? 

Denise Lyons: Four or five. 

Darryl Genis: How many of those cases were there both a preliminary alcohol screening test and a evidential test?   

Denise Lyons: I don’t recall.   

Darryl Genis: Is there something about cross-examination that causes you to suffer from memory lapse?   

Denise Lyons: No.   

Darryl Genis: How many times did you say “I don’t recall” when you were being questioned by the prosecutor? 

Male: Objection.   

Male: Grounds. 

Male: It’s an improper question.   

Male: Well, it’s asking the witness to summarize a portion of her direct testimony.  I’m gonna sustain it, Mr. Genis.   

Darryl Genis: I think her demeanor speaks for itself though.  We’ll go to the next question then.  Are you a – have you ever personally conducted any drinking studies? 

Denise Lyons: I’ve been involved in drinking studies. 

Darryl Genis: Please listen to my question.  Have you personally conducted?  I didn’t ask you if you’d participated.  If I’d wanted to know if you’d participated, I would have asked you that directly. 

Male: Objection, Your Honor.  It’s badgering.   

Darryl Genis: Please listen to the question. 

Male: All right, sustained.  Go ahead, Mr. Genis. 

Darryl Genis: Okay, is English your first language?   

Male: Objection.   

Male: Overruled.   

Denise Lyons: Yes, English is my first language.   

Darryl Genis: And I’m speaking the language that you have a good working knowledge and understanding of?   

Denise Lyons: Yes. 

Darryl Genis: Okay.  Please listen to my question.  If you don’t understand my question, please ask me to rephrase it and I’ll be happy to do so.  Tell me, how many drinking studies have you personally conducted?  Would you like me to define the word “conducted” for you?   

Denise Lyons: No, I would like you to give me an opportunity to recall.   

Darryl Genis: Are there that many? 

Male: All right, one second.  Give her a minute.  Go ahead, ma’am.   

Denise Lyons: There were – are three drinking studies that were conducted by the laboratory – 

Darryl Genis: So you didn’t conduct them. 

Denise Lyons: – that I co-conducted.  They were conducted by – as a group by the people in the laboratory. 

Darryl Genis: Really?  Who co-conducted them?   

Denise Lyons: Janet Anderson-Seaquist, Matt Berger, Eileen Boyd. 

Darryl Genis: That’s almost everybody in your laboratory, isn’t it? 

Denise Lyons: It’s almost everybody that works in the alcohol section. 

Darryl Genis: Okay, so who was in charge of those studies?   

Denise Lyons: That would be the supervisor of the section, Janet Anderson-Seaquist.   

Darryl Genis: Okay.  In fact, you are not a forensic alcohol supervisor, are you? 

Denise Lyons: I was qualified by the State of California as a forensic alcohol supervisor. 

Darryl Genis: When? 

Denise Lyons: 2004. 

Darryl Genis: Okay, and how many studies have you participated or conducted between 2004 and 2008?   

Denise Lyons: I have not conducted any studies. 

Darryl Genis: Okay.  So the correct answer to my original question – “How many forensic – how many drinking driver studies have you personally conducted?” – the answer would be those are conducted by forensic alcohol supervisors and I was only one as of 2004 and I’ve never personally conducted a study.  I’ve only participated.  That would be your correct answer, right?   

Denise Lyons: I’m not sure.  The question is so complex I’m not quite sure.  It’s just such a compound question.   

Darryl Genis: Oh, now you’re a lawyer and you’re making objections? 

Male: Objection. 

Male: All right.  Sustained, Mr. Genis.  It’s argumentative.   

Darryl Genis: Is there something that you find fundamentally distasteful about objectively answering questions for both sides as opposed to one side?   

Denise Lyons: No. 

Darryl Genis: And that’s why you’re gonna go ahead and answer my questions freely and easily without combating me, right? 

Denise Lyons: I am attempting to answer your questions freely and easily.   

Darryl Genis: To the best of your ability. 

Denise Lyons: To the best of my ability. 

[Crosstalk]  

Darryl Genis: _____ _____ biased, right? 

Denise Lyons: I have no bias.   

Darryl Genis: None at all. 

Denise Lyons: No. 

Darryl Genis: Okay.  How many times have you testified in open court that based upon the blood alcohol determinations the citizen accused was not, in your opinion, driving under the influence?   

Denise Lyons: None. 

Male: Objection.  Relevance.   

Male: Overruled.   

Darryl Genis: The answer “none” will stand, right?   

Male: Overruled.   

Denise Lyons: None. 

Darryl Genis: What’s your answer? 

Denise Lyons: None.   

Darryl Genis: Does “none” mean zero? 

Denise Lyons: Yes, it does.   

Darryl Genis: So you’ve never done that, have you?   

Denise Lyons: That would be none.   

Darryl Genis: And that’s because you’re not biased, right? 

Denise Lyons: No.  It’s because I haven’t been called to court to testify on any cases that that was my opinion on. 

Darryl Genis: Well, you might have been.  You’ve had some defense subpoenas but you never actually got dragged into court for some reason or another, right?   

Denise Lyons: I was not called to court, as is the case with 75 percent of the subpoenas I receive. 

Darryl Genis: You did receive the subpoena.  That means you were called to court but someone found a reason to keep you out, right? 

Denise Lyons: No, that’s – 

Male: Objection, Your Honor.  That’s speculative.   

Male: All right, sustained.   

Darryl Genis: Did you have to take a test to become a forensic alcohol analyst? 

Denise Lyons: Yes. 

Darryl Genis: And was that test sent back to you without having to make corrections or clarifications?   

Denise Lyons: I believe so. 

Darryl Genis: Have you ever been to the Cavanaugh DUI School in California? 

Denise Lyons: No.   

Darryl Genis: Have you ever attended the Borkenstein Institute on Alcohol? 

Denise Lyons: No, I have not.   

Darryl Genis: Have you been to the California Criminalistics Institute of Forensic Alcohol supervisor’s course? 

Denise Lyons: Yes. 

Darryl Genis: Did you pass that course? 

Denise Lyons: Yes, I did. 

Darryl Genis: Do you belong to the International Association of Chemical Testing, otherwise known as IACT? 

Denise Lyons: No, I do not. 

Darryl Genis: Do you belong to the American Academy of Forensic Science, AAFS? 

Denise Lyons: No, I do not. 

Darryl Genis: Do you belong to the California Association of Criminalists, CAC? 

Denise Lyons: Yes, I do.  Yes, I do.   

Darryl Genis: Do you belong to the Society of Forensic Toxicologists, SOFT, S-O-F-T? 

Denise Lyons: No. 

Darryl Genis: Have you ever presented a paper to IACT, AAFS, CAT – CAC, SOFT or TIAFT? 

Denise Lyons: No.   

Darryl Genis: How about the International Council on Alcohol, Drug and Traffic Safety?  Have you ever attended any of their meetings? 

Denise Lyons: No, I have not. 

Darryl Genis: Have you ever presented any papers to that organization? 

Denise Lyons: No.   

Darryl Genis: Have you ever worked with the National Safety Council Committee on Alcohol and Other Drugs? 

Denise Lyons: No. 

Darryl Genis: How about the American Society for Testing and Materials Committee on Forensic Science? 

Denise Lyons: No.   

Darryl Genis: Do you belong to the American Society of Crime Lab Directors? 

Denise Lyons: No, I do not. 

Darryl Genis: How about the California Association of Crime Lab Directors? 

Denise Lyons: No. 

Darryl Genis: Have you ever worked for the Laboratory Accreditation Board? 

Denise Lyons: No. 

Darryl Genis: Are you certified by the American Board of Criminalistics? 

Denise Lyons: No. 

Darryl Genis: Are you certified by the American Board of Forensic Toxicology? 

Denise Lyons: No. 

Darryl Genis: Well, certainly you’re certified by Forensic Toxicology Certification Board. 

Denise Lyons: No.   

Darryl Genis: You don’t have any personal board certifications? 

Denise Lyons: No. 

Darryl Genis: The crime lab you work for, that’s a law enforcement agency, right? 

Denise Lyons: No, it’s a crime lab.  It’s out – it is part of the sheriff’s department.   

Darryl Genis: It’s called the Ventura County Sheriff, apostrophe S, Crime Lab.  That means – 

Denise Lyons: It means it’s – 

Darryl Genis: Apostrophe S means possessive, right? 

Denise Lyons: It means it’s part of the sheriff’s department, yes. 

Darryl Genis: Right, and you work for them.  Right?  So you work for the sheriff’s department. 

Denise Lyons: Yes. 

Darryl Genis: You’re a civilian employee of the sheriff’s department in their crime lab. 

Denise Lyons: That is correct. 

Darryl Genis: But you’re not a biased witness. 

Denise Lyons: No. 

Darryl Genis: Okay.  In your wallet, do you carry some sort of official seal or badge that shows that that’s where you work?   

Denise Lyons: No.   

Darryl Genis: Do you have your identification for the crime lab with you? 

Denise Lyons: Yes. 

Darryl Genis: Can you take it out, please?  May I approach?   

Male: Yes.   

Darryl Genis: What’s this star right here? 

Denise Lyons: That’s the sheriff’s emblem.   

Darryl Genis: You just got done telling the jury under oath that you don’t have an official badge or emblem on your identification with the sheriff’s crime lab. 

Denise Lyons: No, actually what you asked me is if I carried in my wallet and my answer stands that I don’t carry this in my wallet.   

Darryl Genis: And they say lawyers split hairs.   

Male: All right, Mr. Genis.  Make that question-answer, question-answer. 

Darryl Genis: Okay, were you – 

Male: Mr. Genis.   

Darryl Genis: Sorry. 

Male: Okay, neither side is gonna be allowed to make comments, okay?  Do we have an understanding, both counsel?  Mr. Sabo? 

Male: Yes, sir. 

Darryl Genis: Yes. 

Male: Mr. Genis.  Okay.   

Darryl Genis: Where do you carry that?   

Denise Lyons: Usually, this is attached to a chain that I wear around my neck because it has the – my pass to go into my computer and to go door to door.  Other than at work, I don’t carry it on my – on me at all. 

Darryl Genis: But you knew it wouldn’t be wise for you to keep anything chained around your neck while I was questioning you, right?  I’ll withdraw the question.  It was meant to be – it’s an attempt at humor.  So that badge that you do have, it’s not like a shiny metal badge like what a sheriff’s deputy would wear but it has that exact star emblem on it, doesn’t it?   

Denise Lyons: It’s an identification card not a badge and it does have the emblem on it, yes.   

Darryl Genis: And that signifies that you’re a civilian employee of a law enforcement agency, doesn’t it? 

Denise Lyons: That is correct.   

Darryl Genis: Okay.  As part of your training with the crime lab, you received training on how to testify in court, didn’t you? 

Denise Lyons: Yes.   

Darryl Genis: And you have made use of that training here today, haven’t you? 

Denise Lyons: Mm-hm.  Yes.   

Darryl Genis: That includes running interference with defense questions that might torpedo the prosecution’s case, doesn’t it? 

[Crosstalk] 

Male: Objection, Your Honor.  It’s an improper question. 

Male: Sustained.   

Darryl Genis: You don’t necessarily wait for the D.A. to object in order to avoid answering defense questions, do you? 

Male: Same grounds.   

Male: Sustained.   

Darryl Genis: Did you speak with the district attorney about this case prior to testifying? 

Denise Lyons: Yes, I did. 

Darryl Genis: Did you also speak – let me rephrase.  You did in fact also speak to the district attorney during that 15-minute recess after I started cross-examining you, didn’t you? 

Denise Lyons: Yes, I did. 

Darryl Genis: And some of your discussion had to do with your testimony that had taken place and would yet continue to take place, didn’t it?   

Denise Lyons: No. 

Darryl Genis: Is it your testimony that you have not been coached in any way prior to testifying here today? 

Denise Lyons: Yes, that’s correct. 

Darryl Genis: Okay.  Have you spoken to any of your other crime lab employees, fellow employees, prior to testifying here today? 

Denise Lyons: I talk to them every day. 

Darryl Genis: Prior to coming to court, did you know who the district attorney was gonna be? 

Denise Lyons: Yes, I did. 

Darryl Genis: Did you know who the defense attorney was gonna be? 

Denise Lyons: Yes, I did. 

Darryl Genis: And you discussed my role in this with other members of the crime lab, didn’t you?   

Denise Lyons: Yes. 

Darryl Genis: That’s because you wanted to know how you would handle me on the stand, isn’t it?   

Denise Lyons: No.  I discuss many – I discussed the case in general as I do – have done with every case I’ve testified on. 

Darryl Genis: How did you first learn that I was the defense attorney on this case?   

Denise Lyons: I’m not sure if someone told me or I looked – or I saw it in the computer docket.  I’m not sure. 

Darryl Genis: Did you discuss that with Ms. Seaquist?   

Denise Lyons: To the extent that I told her you were the defense attorney, yeah.   

Darryl Genis: And did you discuss what you could expect on cross-examination from me by Ms. Seaquist? 

Denise Lyons: No.   

Darryl Genis: Did you discuss the fact that I was the defense attorney with anybody else in your laboratory?   

Denise Lyons: Yes. 

Darryl Genis: Who?  This would be where you interject conveniently “I don’t recall.” 

Male: Objection. 

Male: All right, Mr. Genis.  Come on.  Let’s just keep it a question-answer, please. 

Denise Lyons: No.  I discussed it with Crystal Craver, Matt Berger. 

Darryl Genis: Let’s talk about Matt Berger.  Did you discuss with Matt Berger what his experiences had been when he testified and I was cross-examining him? 

Male: Objection, Your Honor.  Relevance.   

Male: You want to be heard at bench, Mr. Genis?   

Darryl Genis: Yeah.   

[Crosstalk]  

Male: They went all the time.  They won’t get through security.  (Laughter)  We tried that once.  (Laughter)  ____ ____, so I don’t know and they bring it once.   

Darryl Genis: Have you ever been on a ride-along? 

Denise Lyons: Yes, I have.   

Darryl Genis: Have you ever participated in training with police officers? 

Denise Lyons: Yes, I have.   

Darryl Genis: Have you ever participated in training with prosecutors?   

Denise Lyons: Yes. 

Darryl Genis: Have you had classes on how to testify as a criminalist? 

Denise Lyons: Yes. 

Darryl Genis: Have you ever spent a day in the public defender’s office? 

Denise Lyons: No. 

Darryl Genis: Have you ever done any training seminars with the public defender’s office? 

Denise Lyons: No. 

Darryl Genis: Have you ever spent any time speaking to a gathering of criminal defense attorneys? 

Denise Lyons: No. 

Darryl Genis: Have you ever spent a day in a criminal defense attorney’s office? 

Denise Lyons: No. 

Darryl Genis: Are you familiar with field sobriety tests? 

Denise Lyons: Yes. 

Darryl Genis: Are you familiar with horizontal gaze nystagmus tests? 

Denise Lyons: Yes, I am.   

Darryl Genis: Are you familiar with all the stuff – components of that test? 

Denise Lyons: You mean the different cues? 

Darryl Genis: Right. 

Denise Lyons: Yes. 

Darryl Genis: Okay, so the three cues.  There are three cues, right? 

Denise Lyons: Well, three cues in each eye for a total of six. 

Darryl Genis: Oh, yes, total.  We’ll take it, three cues, one in each eye, total of six.  Right? 

Denise Lyons: Yes. 

Darryl Genis: Okay, and the first cue is? 

Denise Lyons: The lack of smooth pursuit. 

Darryl Genis: Right.  The second cue is? 

Denise Lyons: The second cue is onset of nystagmus prior to 45 degrees. 

Darryl Genis: Anh.  Would it be a better answer –? 

Male: Objection, Your Honor.  We’re not on a game show. 

Darryl Genis: Would it be –? 

Male: Mr. Genis, please. 

Darryl Genis: Would it be a better answer to say that you’re looking for distinct and sustained nystagmus at maximum deviation?   

Denise Lyons: That’s one of the cues, yes. 

Darryl Genis: Okay, that’s the second cue, right?   

Denise Lyons: I’m not aware that the order was significant.   

Darryl Genis: Okay, and the third cue would be an angle of onset prior to 45 – 

Denise Lyons: To 45 degrees. 

Darryl Genis: Right? 

Denise Lyons: Yes.   

Darryl Genis: Okay, and the significance of 45 degrees has something to do with Tharp’s Equation, doesn’t it?   

Denise Lyons: I’m not aware of Tharp’s Equation. 

Darryl Genis: Okay.  Doesn’t 50 minus angle of onset equal BAC? 

Denise Lyons: No.  I’m not aware of that.   

Darryl Genis: 45 degrees does not represent a blood alcohol level of .10, does it? 

Denise Lyons: As that – 45 does – is – 45 degrees is not equal to a blood alcohol concentration of anything.  It’s 45 degrees. 

Darryl Genis: Right, and 50 minus 45 would be .05, wouldn’t it?   

Denise Lyons: 50 minus 45 is 5. 

Darryl Genis: Right, and in Tharp’s Equation, 50 minus angle of 45 degrees would be a .05 BAC, wouldn’t it? 

Male: Objection, Your Honor.  She’s indicated she’s not familiar with Tharp’s Equation. 

Male: Are you able to answer the question?   

Denise Lyons: No.  I have never even heard of Tharp’s Equation. 

Male: All right, sustained.   

Darryl Genis: All right.  Have you ever taken the NHTSA SFST course, the 24-hour student course? 

Denise Lyons: Yes.   

Darryl Genis: You’ve taken that course and you’re claiming that you’ve never heard of Tharp’s Equation. 

Denise Lyons: That is correct.   

Darryl Genis: Okay, but since – let me give you a hypothetical question.  If a police officer hypothetically were to testify that he thought that 45 degrees represented a blood alcohol level of .10, would you have an opinion as to whether that officer was right?   

Male: Objection, Your Honor.  Calls for speculation. 

Male: Overruled. 

Denise Lyons: Based on that one cue, I would say that there was not enough information to make an opinion.   

Darryl Genis: Okay. 

Male: I apologize.  Let me see both counsel at bench just briefly.  Go ahead, Mr. Genis. 

Darryl Genis: Thanks, Judge.  You were asked some questions about retrograde extrapolation on direct.  Do you remember that? 

Denise Lyons: Yes. 

Darryl Genis: And you were asked about a series of factors.  Do you need to know how the car was driven as part of your retrograde extrapolation? 

Denise Lyons: No.   

Darryl Genis: Do you need to know about condition of the eyes being red and bloodshot and watery for retrograde extrapolation?   

Denise Lyons: No.   

Darryl Genis: Do you need to know anything about any field sobriety test results for retrograde extrapolation? 

Denise Lyons: No.   

Darryl Genis: Do you need to know how a car was driven for retrograde extrapolation?   

Denise Lyons: That was already the first – I think on that. 

[Crosstalk] 

Darryl Genis: Oh, I’m sorry.  Do you need to know if there was an accident for retrograde extrapolation?   

Denise Lyons: No.   

Darryl Genis: Probably we could go through about a dozen more things that you were given in the hypothetical that you don’t need to know, but let’s talk about what you do need to know.  Do you need to know when the drinking time started? 

Denise Lyons: Yes.   

Darryl Genis: Do you need to know when the last drink occurred? 

Denise Lyons: Yes. 

Darryl Genis: Do you need to know the drive time?  That’s the time you’re looking for the BAC, right?   

Denise Lyons: Yes. 

Darryl Genis: And you need to know the sex of the individual. 

Denise Lyons: No. 

Darryl Genis: Do you need to know – are you sure you don’t need to know the sex of the individual?  Doesn’t that have something to do with burn-off?   

Denise Lyons: I use the same elimination rate whether it’s a male or a female. 

Darryl Genis: Okay.  I’ll get to that then.  You need to know the drive time and do you need a test result and a test time? 

Denise Lyons: Yes. 

Darryl Genis: And do you need any other information in a hypothetical?  Start time for drinking, stop time for drinking, the drive time that you’re gonna determine BAC.  That’s the answer that you’re looking for right there, right?   

Denise Lyons: Yes. 

Darryl Genis: Okay, and the test result and test time.  Do you need any other information in the hypothetical question?   

Denise Lyons: Eating history.   

Darryl Genis: Okay.  Now, you can make a series of assumptions based upon being given these five factors, right? 

Denise Lyons: Correct. 

Darryl Genis: And those assumptions are – tell me what they are on _____ one. 

Denise Lyons: The basic assumptions are, one, that the individual is a normal healthy individual. 

Darryl Genis: Let me back up a second.  Do you need to know the individual’s weight and height?   

Denise Lyons: For that calculation, no.   

Darryl Genis: Okay, so a normal healthy person.  What else?   

Denise Lyons: That – the other assumption is that the alcohol is fully absorbed at the time of driving.   

Darryl Genis: Okay, and then what else do you need to assume?  You have to assume the burn-off rate, don’t you?   

Denise Lyons: I’m assuming that they – a elimination rate of .015.   

Darryl Genis: Any other assumptions?   

Denise Lyons: I think that’s all.   

Darryl Genis: Okay.  Have you looked at my client?   

Denise Lyons: Yes.   

Darryl Genis: Mary, could you stand up so she can look at you?  Now, in the hypothetical you were – you can sit down now, Mary.  The hypothetical you were given, you were told the female was how tall?   

Denise Lyons: My notes, 5’1”.   

Darryl Genis: Could you stand up again, Mary?  Does she appear to you to be 5’1”?   

Denise Lyons: I really couldn’t say.   

Darryl Genis: Can you give us your best estimate of her height? 

Denise Lyons: I don’t know.  No, I really can’t but she does appear to be taller than 5’1”.   

Darryl Genis: Okay.  If I was to tell you – okay, sit and ____ ____.  She doesn’t look like she’s 5’1”.  Does she look like she’s 125 pounds?  Go ahead and have a seat.   

Denise Lyons: That would not be my estimate.   

Darryl Genis: How about 235 pounds?  Does that sound more accurate? 

Denise Lyons: I would not speculate on the weight. 

Darryl Genis: Okay.  You’re aware that the federal government says that any one of us in this room who’s more than 30 pounds overweight we’re morbidly obese.   

Denise Lyons: No, I’m not aware of that and that is not the definition that I am aware of. 

Darryl Genis: Okay.  Is obesity a disease?   

Male: Objection.  Relevance. 

Darryl Genis: Your Honor, the assumption is – 

Male: Go ahead.  Comments?   

Darryl Genis: She said she’s made an assumption of normal health. 

Male: Overruled.   

Denise Lyons: Okay, and what was the question?   

Darryl Genis: Does she appear to you to be within her target weight? 

Male: Objection.  Calls for speculation; lack of foundation.   

Male: Sustained.   

Darryl Genis: Do you know how much a woman of my client’s age at 5’6” should weigh approximately?   

Denise Lyons: No, not really. 

Darryl Genis: Does 235 pounds sound like an appropriate target weight?   

Male: Objection.  This calls for speculation.   

Male: Sustained.   

Darryl Genis: Fully absorbed.  Were you with my client on the night in question?   

Denise Lyons: No. 

Darryl Genis: And do you know if she was fully absorbed? 

Denise Lyons: No.   

Darryl Genis: Elimination rate.  Have you done any tests on my client to see what her elimination rate is?   

Denise Lyons: No. 

Darryl Genis: Okay.  You said you’ve read and relied upon Dr. Kurt M. Dubowski, right?   

Denise Lyons: I have used – I’ve read his articles and – as part of forming my opinion. 

Darryl Genis: And you said that you’ve read and relied upon Dr. A. W. Jones, right?   

Denise Lyons: I have also read articles of his. 

Darryl Genis: And so do you agree or disagree with Dr. Jones when he says that retrograde extrapolation is a dubious practice? 

Male: Objection, Your Honor.  I don’t have – assumes facts not in evidence. 

Male: Overruled.   

Denise Lyons: I’m not aware that A. W. Jones made that comment, so I can’t say whether I agree with him in that or not.  There – I think in my opinion that it is an accepted practice.   

Darryl Genis: Let me see if I can find it for you.  _____ _____ at the moment because all of the articles that I brought up got canceled when my computer reset during the break, so I apologize.  We’re talking about not ____ ____ ____.   

Male: Maybe it’s something, Mr. Genis, we can come back to later perhaps? 

Darryl Genis: No, Your Honor.  Unfortunately, I really need to stay where I’m at in order to stay focused, and I’m looking for Dr. Dubowski’s article, so if I – again, taking that break is when it happened, but I can’t predict the earthquake.   

I’ll have it in just one second, Judge.  I’m just accessing my desktop at the office.  Almost done.  Here it is.  Unfortunately, Judge, when I access my desktop at the office ____ _____ no longer scroll but I have the article up.  Okay, this is not ______.  That’s not anything we ____ ____. 

Male: Judge, at this point it’s been about five minutes.   

Darryl Genis: Judge, I’m gonna e-mail the article to myself.  I can then access it on the computer where it’s not going to _____ _____. 

[Crosstalk] 

Male: How long is it gonna take, Mr. Genis? 

Darryl Genis: What’s that? 

Male: How long is this gonna take, the final point where you actually ask a question?   

Darryl Genis: About 40 seconds.  Okay, I’ve sent the article to myself and I’ll come back to it in a minute.  It’ll be there, so let’s talk about your blood test results.  You got a .08? 

Denise Lyons: Correct. 

Darryl Genis: What’s the tolerance under Title 17 for a blood test?   

Denise Lyons: 5 percent. 

Darryl Genis: So .08 would be a .075, right?   

Denise Lyons: No, the – it’s that – the – we run the samples in duplicate.   

Darryl Genis: Yes. 

Denise Lyons: But they’re within .5 percent or I’m sorry.  They’re within 5 percent of each other. 

Darryl Genis: Okay.  Well, what’s 5 percent of a .08?   

Denise Lyons: .004.   

Darryl Genis: Really?  Okay, so what does Title 17 say about how blood test results are supposed to be analyzed?   

Denise Lyons: Did you have a more specific question?  It has pages on how blood samples should be analyzed.   

Darryl Genis: Yeah.  I’ll get you the exact code section.  Hold on a second.  Does Title 17 say that blood alcohol results have to agree with each other by .005?   

Denise Lyons: Actually, I don’t recall.  I’m sorry.  I know that our method procedure that we use is that the two samples have to agree with each other within 5 percent. 

Darryl Genis: Okay, and do the methods that your laboratory employ follow the requirements of Title 17? 

Denise Lyons: Yes, they do.  They’ve been approved by Title 7 – by DHS.   

Darryl Genis: Okay, and Section 1220.1 of Title 17 of the California Code of Regulations, sub (a), sub (1), is that where you get that the method shall be capable of analysis of a reference sample of a known alcohol concentration with accuracy and precision limits of plus or minus 5 percent of the value based upon a .10 value?  Is that where you get that?   

Denise Lyons: I’m not sure if that’s where it came from or not.  I don’t have a document in front of me.   

Darryl Genis: Okay. 

Denise Lyons: So I don’t know all the code numbers. 

Darryl Genis: So if you have 5 percent plus or minus, as I just read to you from Title 17, and you have a .08, let’s take a minus 5 percent.  That would be a .004 off, right?   

Denise Lyons: Correct.   

Darryl Genis: So then that would be a .076?   

Denise Lyons: .08 minus .004 is .076, yes. 

Darryl Genis: And Title 17 also says that the third decimal shall be truncated, does it not?   

Denise Lyons: Correct.   

Darryl Genis: And let’s take the plus 5 percent.  That would be a .08 plus a .004 for a combined total of .084, correct? 

Denise Lyons: Correct. 

Darryl Genis: So if you have a .08 reading, under Title 17 that reading represents a range of between .076 and .084, correct? 

Denise Lyons: Not in my opinion.   

Darryl Genis: According to Title 17, though, that’s what it represents, right?   

Denise Lyons: I don’t think that Title 17 says that. 

Darryl Genis: Okay.  Do you have an opinion as to whether all persons are under the influence of alcohol at .07?  

Denise Lyons: No, I don’t.   

Darryl Genis: Well, let me ask you this.  Is it your opinion that some people, without trying to pigeonhole whether it’s 10 people out of 1,000 or 1 out of a million or what, but some people are not under the influence at a level of .07 in your opinion.  Correct?   

Denise Lyons: That is true.   

Darryl Genis: Okay.  Now you’re aware that the blood that your lab tested was retested by an independent laboratory with results of .07, aren’t you?   

Denise Lyons: I was made – 

Male: Objection, Your Honor.  That assumes facts not in evidence.   

Darryl Genis: Your Honor, she’s an expert and she’s allowed to rely on hearsay.   

Male: Overruled.   

Denise Lyons: I was made aware of that, yes. 

Darryl Genis: Okay, and did you test the sample in this case for a preservative level? 

Denise Lyons: No.   

Darryl Genis: Did you test the sample in this case for bacteria? 

Denise Lyons: No.   

Darryl Genis: You said that you used a gas chromatograph to do the testing in this case, right?   

Denise Lyons: Yes. 

Darryl Genis: Now in order to do that, you do what’s called a blood run, correct?   

Denise Lyons: Yes. 

Darryl Genis: You didn’t just my client’s blood; you test her blood along with somewhere between 10 and 30 other people at the same time. 

Denise Lyons: There would be a maximum of 22 samples. 

Darryl Genis: Okay, and you don’t take the blood in the vial and just check it.  You take some blood out of the vial and you put it into another container and that container gets placed into the gas chromatograph, right?   

Denise Lyons: Correct. 

Darryl Genis: And the way the gas chromatograph works is the container with the blood of the test subject will be heated up to – what is the heat?  Is it 160 degrees?   

Denise Lyons: I’m not sure what the temperature is. 

Darryl Genis: But it’s heated, right? 

Denise Lyons: Yes, it is heated.   

Darryl Genis: Okay, and then the reason for the heat is so that the alcohol, which is a volatile chemical, will be turned into a gas and then you can measure the gas in the head space without getting your instruments all covered with blood, right? 

Denise Lyons: Correct. 

Darryl Genis: Okay.  Now in order to get the blood out of the vial, that’s a Vacutainer, right?   

Denise Lyons: Correct. 

Darryl Genis: Okay.  Vacutainer is a trade name for a vial made by a company called Becton, Dickinson, right? 

Denise Lyons: Correct.   

Darryl Genis: And it’s a gray-topped tube, right? 

Denise Lyons: Yes. 

Darryl Genis: And the gray-topped tube contains a white powder in it when it’s in the kit and the white powder is comprised of two chemicals.  One is sodium fluoride and the other is potassium oxalate, right?   

Denise Lyons: Yes. 

Darryl Genis: Potassium oxalate is an anticoagulant, right?   

Denise Lyons: I’m not 100 percent sure which is the anticoagulant, but one is a preservative and one is an anticoagulant.   

Darryl Genis: Alcohol gravitates towards water, right? 

Denise Lyons: Yes. 

Darryl Genis: Alcohol doesn’t distribute in solids, does it? 

Denise Lyons: In solids? 

Darryl Genis: Right.   

Denise Lyons: If they have water, anywhere where there would be water. 

Darryl Genis: Alcohol is water soluble, not fat soluble, correct?   

Denise Lyons: It’s not a soluble in fat. 

Darryl Genis: Okay.  Now if you have blood and the blood coagulates, that means there’s less liquid left in the blood because some of it has turned to solid, correct?   

Denise Lyons: Say that again, please? 

Darryl Genis: If you have blood and it coagulates, the amount of liquid in the container will be reduced by the amount that’s been separated out into a solid.  That’s what coagulation is.   

Denise Lyons: The amount of liquid that’s in the tube would still be the same.   

Darryl Genis: If you have a tube that’s comprised of 100 percent liquid and 20 percent of that liquid turns to solid, then you only have 80 percent left that’s liquid.  How is it the same?   

Denise Lyons: The amount of liquid in the tube is still the same.  If you start with a liquid that has a multi-component liquid such as blood is – 

Darryl Genis: Okay, well – 

Denise Lyons: No, you’re asking me to explain how that can be and this is the way I can only explain it.   

Darryl Genis: Okay.  Well, let’s do this in a way that everybody on the jury can understand.  You have a glass and you have water and you have the water in two different forms, liquid and ice, solids, and you got marks on – like it’s a beaker that’s got a mark and it says 12 ounces. 

So if you pour 8 ounces of water into that glass and then you drop ice cubes in it ’til it raises to the level of 12 ounces and then remove the ice cubes, do you still have 12 ounces of water in the glass? 

Denise Lyons: No.   

Darryl Genis: If you have a vial and it’s full of blood and it’s all liquid and there’s no anticoagulant and 20 percent of it coagulates into a solid, that means that the amount of liquid has been reduced by 20 percent, doesn’t it?   

Denise Lyons: No.   

Darryl Genis: Okay.   

Denise Lyons: And I was trying to – you did ask me to explain why that is and I was trying to explain and you interrupted. 

Darryl Genis: Oh, yeah.  Go ahead, please.  Enlighten me.   

Male: Mr. Genis, please.  We can dispense with the _____ comments.  Go ahead, ma’am. 

Denise Lyons: Blood is a much more complex liquid that water.  It contains a variety of different substances.  Primarily it contains the blood components of red blood cells and white blood cells, so in that blood you have a certain amount of liquid which is the serum or the plasma and also mixed in with that liquid you have the red blood cells and the white blood cells.   

If you have a vial that clots, what that means is the red cells in there have gone together in a little clump and they’re no longer freely distributed through the liquid as they were previously.   

Okay, just by the mere fact of those red blood cells clotting together does not remove the amount of liquid in the vial, and then the – it is not – the example with the ice isn’t even relevant because in the water and ice, you’ve removed the ice cube and you’re saying that the total volume of substance in the vial is reduced.   

Darryl Genis: Okay.  Well, let’s see if we can clarify this for you.  You’ve got a vial that’s got 10 cc of blood.  The blood coagulates so there’s only 8 cc of liquid left and the rest that’s in the vial is solid substance.  You remove the solid substance from the vial.  Is the amount of liquid left in the vial still 10 cc?   

Denise Lyons: The amount – the total amount of substance in the vial is less than cc – is less than 10 cc.  It’s reduced by the amount of the clot that was removed, but the amount of liquid is still about the same because you’ve removed the clot.  You’ve removed the red blood cells.  You haven’t removed the serum.   

Darryl Genis: I’m just downloading that article, Judge, and I’ll move to another question while it’s downloading.  This is a foundational question.  You cook on occasion don’t you?   

Denise Lyons: Sorry.  Yes.   

Darryl Genis: Okay, and you know that water with salt in it boils faster than water without salt in it, right? 

Denise Lyons: Yes. 

Darryl Genis: Okay, and we talked about the chemical that was in the vial, the sodium chloride.  That’s a preservative, right?   

Denise Lyons: As I said, one of them is a preservative and one is an anticoagulant.  I’m not sure which one is which.   

Darryl Genis: Okay.  The word “sodium” is a big scientific word for salt, isn’t it?   

Denise Lyons: It’s one of the components in table salt, yes.   

Darryl Genis: Right, and the vial with the blood has salt in it, has sodium chloride in it, right? 

Denise Lyons: Correct.   

Darryl Genis: You didn’t measure the amount of sodium chloride, did you? 

Denise Lyons: No, I did not. 

Darryl Genis: Okay.  You’ve already admitted that you are aware that sodium will increase the – or will shorten the amount of time needed to –.  Technology’s not all it’s cracked up to be, Judge.   

Male: Judge, I would ask that that comment and any future ones be stricken.   

[Crosstalk]  

Darryl Genis: Oh, I’m ____ ____ highly sophisticated equipment and it doesn’t do what it’s supposed to do.   

Male: Judge, objection.  That’s inappropriate.   

Male: We need to at some point – you know, we’ve got a lotta people waiting here.  Just move on to questions and maybe after the break at lunch – the courtroom will be yours during the lunch hour if you want to ferret out any issues with your technology.   

Darryl Genis: If there’s too much salt in the blood that creates the potential for a problem that you know as a forensic scientist as salting out, right?   

Denise Lyons: I’m not aware of the term “salting out” being used in this type of example. 

Darryl Genis: Okay.  You’ve never read an article about how the presence of too much sodium chloride can cause salting out, otherwise translated out into meaning an artificially high or inflated blood alcohol concentration?   

Denise Lyons: No, I have not.   

Darryl Genis: Is it your testimony that no such peer review articles exist?   

Denise Lyons: I did not say that.   

Darryl Genis: You’ve just simply sheltered yourself from reading those articles? 

Male: Objection again, Your Honor. 

Male: Sustained.  It’s argumentative, Mr. Genis.   

Darryl Genis: You have found no time to read such articles?   

Male: Objection, Your Honor. 

Denise Lyons: I have not read an article about that, no.   

Darryl Genis: You engaged in retrograde extrapolation for the prosecutor, right? 

Denise Lyons: Yes.   

Darryl Genis: Your retrograde extrapolation assumed 125-pound female? 

Denise Lyons: Actually, no.   

Darryl Genis: Okay, so that fact was not necessary for you? 

Denise Lyons: Correct.   

Darryl Genis: Do you agree with Dr. Kurt Dubowski when he says that “fluctuations from the trend line and other irregularities often do not follow the typical Widmark pattern”? 

Male: Objection.   

Male: Grounds.   

Male: I’m trying to be as concise as I can.  I don’t know from a foundational standpoint the context that that statement’s made, the date that that was made, whether or not that’s one of the articles that the witness has actually read or not.   

Male: All right, Mr. Genis, I’ll let you determine whether or not it’s an article or – article that the witness has relied upon or considered as part of her audience. 

[Crosstalk] 

Darryl Genis: Certainly in your endeavors as a criminalist you have come across a variety of articles that Dr. Kurt M. Dubowski has written, haven’t you?   

Denise Lyons: Yes, I have.   

Darryl Genis: And among them is seminal article, “Absorption, Distribution and Elimination of Alcohol,” an article – 

Male: Objection as to the characterization.   

Male: All right, one second.  Let me just hear the objection.  What – grounds?   

Male: The characterization of the article.  He doesn’t need to add “seminal.”   

Male: Just go with the title.   

Darryl Genis: “Absorption, Distribution and Elimination of Alcohol” by Dr. Kurt M. Dubowski is an article that you have read many times over, isn’t it?   

Denise Lyons: Yes, it is.   

Darryl Genis: Okay, so now I’ll go back to what I was asking.  Do you agree or disagree with Dr. Dubowski when he says that “short-term fluctuations from the trend line and other irregularities often do not follow the typical Widmark pattern”?  It’s a yes or no question.  You agree or you disagree.   

Denise Lyons: Well, it’s not necessarily a yes or no question in my opinion. 

Male: All right, I’m gonna let her explain.  I’m not gonna limit her to a yes or no.  You can answer the question, ma’am.   

Denise Lyons: You’re asking me if I agree with his statement. 

Darryl Genis: Yeah, let’s start there.  Do you agree with that statement, yes or no? 

Denise Lyons: Not necessarily.   

Darryl Genis: Okay, and do you agree or disagree with the statement that “alcohol absorption is not always completed within 60 to 90 minutes as often claimed”?  Just agree or disagree based on your expertise.   

Denise Lyons: The problem I’m having with that question is that you’re asking me to agree or disagree with a statement that somebody made decades ago and I don’t even know if they agree or disagree with that statement now.   

Darryl Genis: Well, let’s – 

Denise Lyons: If you want to just ask me if I agree with the concept, I can tell you that, but I can’t say whether I agree with that person or not because I don’t even know if that person agrees with what they said 20 years ago. 

Darryl Genis: Well, you know that Dr. Dubowski still teaches at the Borkenstein Institute, right? 

Denise Lyons: I’m not aware of what he – where he teaches now. 

Darryl Genis: And you’re aware that Dr. Dubowski has maintained through the length of his career even until today that retrograde extrapolation is a questionable practice that should not be engaged in under forensic circumstances because you simply don’t have all the necessary information in order to be accurate.   

Denise Lyons: Actually, I’m not aware of that, and I was under the impression that he performed retrograde extrapolations.   

Darryl Genis: And where did you get that impression? 

Denise Lyons: I don’t recall.  I have – I gather a lot of information and – over the course of my work and training and of talking to other people.  I don’t know the exact source.  That was an impression I had.  I did not say it was a fact.   

Darryl Genis: Can you bring me any article that you have back at your laboratory tomorrow morning or this afternoon after lunch where Dr. Dubowski says retrograde extrapolation is a perfectly acceptable practice and there’s no danger and no risk involved in it?   

Denise Lyons: No, I can’t because I’m not aware of what – of an article that he has published like that.   

Darryl Genis: Do you agree or disagree with Dr. Dubowski when he says, “It is not possible to establish whether an individual is in the absorptive or elimination phase or to establish the mean overall rate of alcohol elimination from blood based upon one or two blood test measurements”?   

Denise Lyons: I would agree with the fact that based on one or two blood measurements you cannot make a determination as to where they are on the curve as far as absorption and elimination.   

Darryl Genis: Do you agree or disagree with Dr. Dubowski when he says this:  “Significantly large short-term fluctuations occur in some subjects and the results in marked positive and negative departures from the alcohol concentration trend line are significant”? 

Male: Objection again, Judge.  We still haven’t established when this article was written.   

Male: Mr. Genis, are you referring the same article or a different article? 

Darryl Genis: Yes, same article.   

Male: All right.  It’s an article that the witness has read and considered.  Objection is overruled.   

Denise Lyons: You’re gonna have to repeat that.  It was a very long, complex sentence.  You’re gonna have to repeat that.   

Darryl Genis: “Significant large short-term fluctuations occur in some subjects and result in marked positive and negative departures from the alcohol concentration trend line.”   

Denise Lyons: I can’t make a statement as to whether I agree with Dubowski, but I will make – say that there are certainly studies that show that not everybody’s alcohol concentration exactly matches the curve, that there are deviations both plus and minus from the curve. 

Darryl Genis: And do you agree or disagree with the statement that Dubowski makes in his conclusion that “short-term, marked oscillation of the blood alcohol concentration can occur at various points of the curve, resulting in repeated excursions of the alcohol concentrations above and below a given concentration within a few minutes or a few hours”?   

Denise Lyons: I would agree with the fact that there can – are gonna be deviations in the blood sample. 

Darryl Genis: And his ultimate conclusion in this article:  “Finally, no forensically valid forward or backward extrapolation of blood concentrations is ordinarily possible in a given subject and occasion solely on the basis of time and individual analysis results.”  Do you agree with that? 

Denise Lyons: Would you please repeat that?   

Darryl Genis: “Finally, no forensically valid forward or backward extrapolation of blood alcohol concentrations is ordinarily possible in a given subject and occasion solely on the basis of time and individual analysis results.” 

Denise Lyons: I would not agree with that statement at all. 

Darryl Genis: Really?  And what peer review published article have you put out that disputes the long-standing opinions of Dr. Kurt M. Dubowski? 

Denise Lyons: That was an opinion that was made decades ago and there is – 

Darryl Genis: Okay, let’s stop right there and let me ask – 

[Crosstalk] 

Male: Wait, wait.  Let the witness – let her answer the question, Mr. Genis.  Go ahead. 

Denise Lyons: That was an article that was written decades ago.  I don’t remember the – 

Darryl Genis: 1985, to be exact.   

Denise Lyons: Okay, that is decades.   

Darryl Genis: Right. 

Denise Lyons: And that article is not based on any actual research that was done by Dubowski at that time.  That is a review article where he took the results of many different studies, combined them and did a review of those and put out the results, okay.   

Darryl Genis: How many articles have –? 

Denise Lyons: I’m not finished. 

Darryl Genis: Oh, okay.  Please. 

Denise Lyons: Thank you. 

Darryl Genis: Have at it.   

Denise Lyons: Since the time of that article, he has had many opinions that are not the same as the opinions in that, as many people have.   

Darryl Genis: On that subject?  Name one article where he repudiates that opinion. 

Male: Judge, the witness is still trying to answer. 

Male: Okay, let me – let’s slow it down a little bit, Mr. Genis.  Were you finished with your answer?   

Denise Lyons: No, I’m not. 

Male: All right, go ahead.   

Denise Lyons: Okay.  Much research that has been done since that time and many articles that have been such – done since that time have shown that not everything in that article was found to be – 

Darryl Genis: All right, I’m gonna object – 

[Crosstalk] 

Denise Lyons: – consistent.   

Darryl Genis: – Your Honor.   

Denise Lyons: But you’re asking me to state whether I agree with an argument or not.   

[Crosstalk] 

Darryl Genis: _____ _____ ____. 

Male: Mr. Genis, the objection is off the table.  I’m gonna let her answer the question.  She’s tried a couple of times.  You can answer the question.   

Denise Lyons: I don’t even remember where I was.  I’m sorry.   

Darryl Genis: Your Honor – 

Male: All right, next question.  Go ahead.   

Darryl Genis: May I ask the Court to instruct the witness to answer questions without rambling narratives that are non-responsive, please?   

Male: All right, you’ve invited my answer which is I think she was attempting to. 

Darryl Genis: Okay, well, let’s talk about it, 1985, and I’ll grant you that.  That was a long time ago.  Tell me, has human physiology changed in the – 

Denise Lyons: No.   

Darryl Genis: – last hundred years?   

Denise Lyons: Not appreciably, no.   

Darryl Genis: Okay, and you’re gonna have a lunch hour and you’ve got – your laboratory is on the same premises in the next building over, right?  

Denise Lyons: Yes. 

Darryl Genis: And you’ve got five or so other forensic analytical people over there including Janet Anderson-Seaquist, right? 

Denise Lyons: Yes.   

Darryl Genis: So between all of your colleagues, you probably have about 150 years of experience with blood alcohol analysis, right?

Denise Lyons: I don’t know how many.  I don’t know.   

Darryl Genis: Okay, so you’re certainly gonna be able to come back to this court at 1:30 with at least one article that – 

Male: Judge, objection.  That’s – 

[Crosstalk]  

Darryl Genis: – Dr. Dubowski ____ ____ – 

Male: Hang on.  There’s an objection.   

[Crosstalk]  

Male: – completely _____ on the tape.  This is an inappropriate question.  You said – well, I don’t want to get into a speaking objection.  It’s inappropriate to put that burden on a witness.   

Male: All right.  Let’s finish the question.   

Darryl Genis: You’re certainly gonna be able to go back and confer with your colleagues and find the article where Dr. Dubowski says, “Boy, I must have not looked at the right data because I now state in this peer review article that you can make retrograde extrapolation in a forensic setting with confidence.”  You’re gonna show us that article, right? 

Denise Lyons: I already stated that I did not know that an article such as that existed.   

Darryl Genis: Right.  The truth is you know that such an – 

Male: Objection. 

Darryl Genis: – article doesn’t exist, don’t you?   

Denise Lyons: No, I don’t.   

Male: Grounds?   

Male: Never mind.   

Darryl Genis: Well, if you think it might exist, wouldn’t it behoove you to go out and find it?  You’re a scientist, right?   

Denise Lyons: My opinions are based on many different sources, not just articles.   

Darryl Genis: Your opinions are based in part on your allegiance to the Ventura County District Attorney’s Office that prosecutes DUI and it wouldn’t be very helpful to them if you came into court and said, “I’m sorry.  I can’t do a retrograde.  It’s not reliable science.”   

Denise Lyons: That’s incorrect.   

Darryl Genis: Okay.  When you do a blood run that’s up to 22 subjects and you’re taking the blood out of the vial, you have to open the vial, right? 

Denise Lyons: Correct. 

Darryl Genis: Okay.  How many times in your – what did you say?  It was 16 years, 18 years you’ve worked at the lab?  How long?   

Denise Lyons: Eighteen. 

Darryl Genis: Eighteen years you’ve worked at the lab.  How many years in the blood alcohol section?   

Denise Lyons: Four. 

Darryl Genis: Four years in the blood alcohol section.  How many times in the four years you’ve worked in the blood alcohol section have you had the opportunity to retest one of your own tests – blood samples?   

Denise Lyons: Maybe 20. 

Darryl Genis: And in those 20 times, were you able to reconfirm your original analysis each time?   

Denise Lyons: Yes.   

Darryl Genis: Okay.  Now if I were to ask you how is it that your lab got an .08 and another lab got an .07, you would offer as the convenient explanation, “Well, when you open the vial, some of the alcohol is going to escape,” right?   

Denise Lyons: That would be one explanation, yes. 

Darryl Genis: But your own research of those 20 retests shows that that really doesn’t happen, doesn’t it? 

Denise Lyons: I wouldn’t say that, no.   

Darryl Genis: Okay.  If you were to take a vial that has a .10 reading and then reopen it a month later and test it again, then you would expect that it could go down to an .09 then, right? 

Denise Lyons: It could, yes. 

Darryl Genis: And the next month you could test it a third time.  It could go down to an .08, right?   

Denise Lyons: It’s possible. 

Darryl Genis: And the next month you test it, it would be an .07, right? 

Denise Lyons: I think that it’s improbable but it’s possible. 

Darryl Genis: And on the tenth month you’d have a .00 reading according to that “it evaporated every time I opened it” theory, wouldn’t you?   

Denise Lyons: That would not be a loss based on the “every time I opened it theory” because you would not expect that great of a loss.  I think it’s very improbable that that situation would occur but it is possible.   

Darryl Genis: Okay, so more likely if you have one lab saying it’s an .08 and another lab saying it’s an .07, what you’re really seeing is a question of the 5 percent tolerance, right?   

Denise Lyons: I can’t speculate as to exactly what it is.  It’s a – it would be a combination of the fact that the vial had been opened several times in between.  Also, the fact that there is going to be some variation between different labs, different instruments and different methods and then also there would – could be that individual variation.   

Darryl Genis: Can I get some more paper up here, Judge?  Is that possible?   

Male: Deputy Miller, do you have another tab of paper?   

Darryl Genis: While we’re waiting for the paper, when you take the blood out of the Becton, Dickinson tube and put it into the container that you use for the gas chromatograph, do you use a device known as a pipetter?   

Denise Lyons: Yes, we do.   

Darryl Genis: A pipetter is kind of a very expensive scientific instrument that looks a lot like a turkey baster, right?   

Denise Lyons: I would say it looks nothing like a turkey baster, but – 

Darryl Genis: Well, it’s got a big bulb on the top and you draw blood out.  It’s got a little kinda pointy end, right?   

Denise Lyons: It doesn’t have a large bulb on it. 

Darryl Genis: No?  Okay, different type of pipetter.  That scientific instrument requires calibration, right?   

Denise Lyons: Yes, it does. 

Darryl Genis: And that pipetter will come into contact with all 22 or however many number of blood samples are in a given run, right?   

Denise Lyons: Correct. 

Darryl Genis: And you’re supposed to go through a very rigorous cleaning process with that pipetter each time you use it from one sample to the next, right? 

Denise Lyons: It is cleaned each time in between, yes.   

Darryl Genis: Okay, and the reason is you don’t want cross-contamination, right? 

Denise Lyons: Correct. 

Darryl Genis: Okay.  Now if I could go to the board here.  What I’ve just drawn is something you’re very familiar with, right?   

Denise Lyons: Yes. 

Darryl Genis: That’s a blood alcohol curve, right?   

Denise Lyons: It appears to be.   

Darryl Genis: Is that side the post-absorptive or otherwise known as the elimination phase? 

Denise Lyons: Yes, it is.   

Darryl Genis: Is that side the absorption phase?   

Denise Lyons: Yes, it is.   

Darryl Genis: This area right here is the plateau.  Is that right? 

Denise Lyons: As you’ve driven – as you have drawn that on the board, that is indeed a plateau.   

Darryl Genis: Now if you give a subject a test at two different times then it makes it more likely to plot out where they are on this curve, right?   

Denise Lyons: If you give a test at two different times? 

Darryl Genis: Yeah.  Let’s say you give somebody a blood test at 10:00 and then you give them another test at 12:00, so you have a two-hour difference between the two tests.  You’d be able to take those results and based on the numbers of the results you’d be able to figure out where they should be on that graph, right? 

Denise Lyons: No.   

Darryl Genis: Not at all?   

Denise Lyons: No.   

Darryl Genis: Why not?   

Denise Lyons: We actually already have covered it.  You cannot determine where a person is on the curve based on one point. 

Darryl Genis: Right.  What about two points? 

Denise Lyons: Not necessarily because you don’t know – you _____ _____ – 

[Crosstalk] 

Darryl Genis: Okay, yeah.  Post-absorptive or elimination is linear, isn’t it? 

Denise Lyons: Approximately, yes. 

Darryl Genis: Okay, and that’s where you get the burn-off of .015 which is actually a range of .015 to .020 in the literature, right?   

Denise Lyons: I have seen other ranges than that. 

Darryl Genis: Those are the averages though, right?   

Denise Lyons: Usually I see .018 as the average.   

Darryl Genis: Well, isn’t that an average of 15 and 20? 

Denise Lyons: The average that I’ve seen in literature is .018. 

Darryl Genis: Add 15 and 20 together and divide by 2 and tell me what you get.   

Denise Lyons: You’d get approximately 18, but that – you asked me if that is the range I saw and I’m telling you the range I saw is .018. 

Darryl Genis: Okay.  What you’ve seen in the literature is an average of 18, which is a combination of the range of .015 low to .020 high. 

Denise Lyons: Which that could very well be, but that’s not what I’ve seen in literature.   

Darryl Genis: You’ve seen the literature state the average is .18. 

Denise Lyons: Yes, I have.   

Darryl Genis: Okay.  Okay, average, .018.  That’s what you see in the literature? 

Denise Lyons: Yes. 

Darryl Genis: So if you have a test and you know that the test subject is here, if you go back an hour, all you have to do is add one of these numbers and you’re gonna be pretty close to where it should be an hour earlier, right?   

Denise Lyons: If I know exactly where they were on the curve, yes. 

Darryl Genis: Right.  That’s the problem is not knowing where they are on the curve, right?  Now how is a person a .08 and a .08 – what was the time of the blood test in this case?   

Denise Lyons: 9:42.   

Darryl Genis: I’m gonna put .08 or .07 because we have both results and then what was the time of the preliminary breath screening test?   

Denise Lyons: That, I don’t – was not provided with.   

Darryl Genis: _____ Page 42.  Will you please read 8:44?  Okay.  An hour earlier, let’s say, 8:42.  Well, if the person is an .08 – and we’re assuming – ’cause these tests are not equivalent.  A blood test and a breath test are different, aren’t they?   

Denise Lyons: Yes, they are. 

Darryl Genis: Okay, a blood test is a direct measurement of the alcohol in the blood, right? 

Denise Lyons: Yes. 

Darryl Genis: A breath test is an indirect measurement that makes a lot of assumptions about what should be in the blood, right?   

Denise Lyons: No, actually it’s – it is just a test that measures the percentage of alcohol in the breath. 

Darryl Genis: Right, but it does so based upon a program that says 210 liters or grams per 210 liters, right?   

Denise Lyons: Yes. 

Darryl Genis: Which is the same as saying 2,100 to 1, right?   

Denise Lyons: Yes. 

Darryl Genis: Okay, and 2,100 to 1 is the accepted exchange rate according to Henry’s Law at 34 degrees Celsius, right? 

Denise Lyons: I’m not aware that that number is specifically stated in Henry’s Law, no.   

Darryl Genis: Do you have an Intoxilyzer 5000 in your lab?   

Denise Lyons: Yes. 

Darryl Genis: Do you use a wet bath simulator to calibrate it?   

Denise Lyons: Yes, we do. 

Darryl Genis: Does the wet bath simulator require you to heat that wet bath solution to 34 degrees centigrade?   

Denise Lyons: Yes, it does. 

Darryl Genis: That’s so that the exchange between the liquid and the gas will be at 2,100 to 1, right?   

Denise Lyons: I’m not sure if that’s the reason why or not.   

Darryl Genis: Okay.  Now if you know that a person has taken a test at 8:42 and another test at 9:42 and they have what is – shows up as an .08 or an .07 if you take out the – let me see that board.  If you have an .085 and an .082, there’s a difference of .003 from those two readings, right?   

Denise Lyons: Yes. 

Darryl Genis: If you take the .003 from the .082, it’s an .079, right?   

Denise Lyons: I’m not sure how you’re relating these numbers together, but certainly if you subtract .003 from .082, you do get .079. 

Darryl Genis: Right.  Okay.  Well, let me see if I can help you at.  That’s a first reading. 

Denise Lyons: I can’t see the board from here.   

Darryl Genis: Can you hear me now?   

Denise Lyons: No, I said I couldn’t see the board from there. 

Darryl Genis: I know it.  I was trying to be funny.  Can you see the board now?   

Denise Lyons: Yes, I can.   

Darryl Genis: The .085.  You see that? 

Denise Lyons: Yes. 

Darryl Genis: The .082.  You see that? 

Denise Lyons: Yes. 

Darryl Genis: The difference between those two numbers is a .003, right? 

Denise Lyons: Correct. 

Darryl Genis: Okay.  Now if you ignore this one for a second and you just fixate on the .003, if you were to subtract that from this, that would become a .079, right?   

Denise Lyons: If you subtracted it from the .085?  Well, that’s what you pointed – you pointed out the .085 when you said that.   

Darryl Genis: Okay.  If you subtract the – you’ve got it the backwards.  If you subtract the .003 from the .082 – 

Denise Lyons: From .082, you do get .079. 

Darryl Genis: And under Title 17, you truncate.  You don’t average, right? 

Denise Lyons: Correct. 

Darryl Genis: So a .08 breath test could easily be a .07, could it not?   

Denise Lyons: In my opinion that if you have a breath test that reads .08, that is the result of that breath test. 

Darryl Genis: Okay, and Title 17 specifically states the breath test can differ by plus or minus 10 percent, so a .08 could be a .07 or a .09, right?   

Denise Lyons: I’m sorry.  Repeat that.  The context is – 

Darryl Genis: Well, let’s start with under Title 17 a breath test has more leniency than a blood test.  There’s a 5 percent for a blood test, 10 percent for a breath test, plus or minus. 

Denise Lyons: Okay. 

Darryl Genis: Okay, so an .08 breath test under Title 17 could have a range of between .07 and .09. 

Denise Lyons: In my opinion, a breath test that has a reading of .08 is – that’s the result of that breath test. 

Darryl Genis: That’s the breath reading.   

Denise Lyons: Correct. 

Darryl Genis: And how would that translate out to a blood alcohol level?   

Denise Lyons: I wouldn’t relate it to a blood alcohol level.  That’s a breath alcohol level. 

Darryl Genis: Okay.  Isn’t it true that there’s no scientific peer review literature equating a breath alcohol concentration without conversion to any level of impairment?   

Denise Lyons: I’m not aware of – I’m not aware if there is or not.   

Darryl Genis: You’re an expert in this field, right?  You’ve read the literature?   

Denise Lyons: Yes, but it’s a very confusing question.  I don’t – I’m not aware that there is.   

Darryl Genis: Okay, so where do we put this test on this curve and where do we put this test on this curve?  Help me out here.   

Denise Lyons: I wouldn’t put either of them on the curve.  Based on one test, you cannot say what part of the curve a person is in. 

Darryl Genis: Can you put these tests on a post-absorptive curve?   

Denise Lyons: No. 

Darryl Genis: Okay.  When we were doing the other sheet of paper and you made your assumptions, didn’t you assume that the person you were doing retrograde extrapolation for was post-absorptive?   

Denise Lyons: I did make that assumption based on the stated eating and drinking history.   

Darryl Genis: Okay.  Now let’s carry this to its logical conclusion.  First of all, in that history that you were given, the officer told you that he was arresting somebody who was 5’1”, but as you can see, my client’s not 5’1”, right? 

Denise Lyons: I never spoke to the officer. 

Darryl Genis: I know that. 

Denise Lyons: You said the officer told me that the person was 5’1”.  I haven’t spoken to the officer. 

Darryl Genis: Okay.  Have you read the police report – surely? 

Denise Lyons: Yes, I have. 

Darryl Genis: Yeah, and you’ve seen what the officer wrote, haven’t you?   

Denise Lyons: I read the police report. 

Darryl Genis: Yeah. 

Denise Lyons: I did not commit the entire report to memory.  I don’t remember the height and weight that was listed on the police report.  I know that what was given to me in a hypothetical by the – was that she was 5’1” and 125 pounds. 

Darryl Genis: Okay.  Look, you’ve proven that you’re very good at splitting hairs with me. 

Male: Objection.   

Male: Right.  

Darryl Genis: But – 

Male: We’re gonna take a break at this time.  I’ll ask the jury to step outside.  We’ll be in recess until 1:30.  Remember the court’s admonition not to talk about the case or form or express any opinion until you’ve heard all the evidence and actually begun your deliberations.  We’ll see you back here at 1:30.   

All right, our jury has left the courtroom.  Defendant is present with counsel.  People are present.  Alternates left as well.  We’ve gotta tone it down a little bit, Mr. Genis. 

Darryl Genis: Judge, can I ask you a question?  And now that the jury’s out, I’m gonna pull the stops because if you think I haven’t been exercising self-restraint, you’re – 

Male: I don’t have a problem with questions that go to the merits, but there’s just comments that – 

Darryl Genis: Judge.  Judge, please, if I could.  I’ve only done your job once.  I sat as a judge on a DUI trial, so I don’t claim to be an expert on it, but I know you’re a man of integrity and I know that you understand the jobs of the prosecutor and the job of the defense attorney and now you understand the job of a judge.   

I wouldn’t say this in the presence of the jury.  This woman is academically dishonest and you should not be allowing it.  You can turn to the witness and say, “We’re not gonna let you sit here and play games like that” ’cause that – she knows what she’s doing.   

She’s playing games and it’s dragging this out and it clearly shows her bias and I’m gonna continue to go after her because I have zero tolerance for people who are professional liars.   

Male: Okay, well, let me – 

Darryl Genis: And that’s what it means to be academically dishonest. 

Male: Like I said, the personal attacks.  I mean there’s been a them – 

Darryl Genis: Your Honor – 

Male: – on the D.A.  There’s been them on – I mean it’s just too much.  It’s – 

Darryl Genis: No. 

Male: I don’t have a problem with you getting into the merits, but – 

Darryl Genis: The merits are that if she knows something is so then, you know, call it what it is.  Don’t sit there and try to arm wrestle because she doesn’t want to give up anything.   

Male: Well, we – you’ve given your opinion.  All right?  I – 

Darryl Genis: It’s not my opinion. 

Male: No, it is your opinion. 

Darryl Genis: What?  That she’s academically dishonest?  I can prove she’s academically dishonest.   

Male: Okay, I’m just – I’ve already given my opinion which is I think that your line of questioning at times is argumentative and that’s what I’m stating for the record. 

Darryl Genis: Why?  Why am I being argumentative? 

Male: Just little comments.  I mean I could – 

Darryl Genis: Judge, no.  I understand that I have been argumentative.  I’m not debating you on that.  I’m asking you for a little intervention here.  This is your courtroom and I’m not the only one that you’re supposed to be reining in nor is the D.A., witnesses.  I could – here’s all I have to tell you.   

If I were wearing your robe, I would be telling any witness that would be taking the position that this witness is taking that they will answer the questions without playing verbal games or suffer the consequences, which includes contempt.  Her behavior on the stand is contemptuous.  She’s already got my contempt.  I’m asking you to give her yours.   

Male: Okay.  There’s nothing I’ve seen that’s been contemptuous, Mr. Genis. 

Darryl Genis: Oh, come on.  If you were sitting where I’m sitting, you wouldn’t find her to be –? 

Male: No, and I wouldn’t honestly and so I mean it’s – like I said, I mean I’ve stated my comments.  You know, I don’t have any problem with a case.  I mean you’re a talented guy and you know that there are – 

Darryl Genis: Judge, I don’t need the flattery.  I’m not – 

Male: Well, I don’t need yours either but you just gave it to me a minute ago.  I mean so, you know, it can go both ways.  I mean the point is that, you know, you don’t have to do the scorched _____ policy, so. 

Darryl Genis: Isn’t the whole point of taking the stand and taking the oath to tell the truth?   

Male: I’m not here to answer questions.  We’ll be in recess until 1:30. 

Darryl Genis: Judge, don’t you think that she should be answering the questions honestly instead of just trying to – 

Male: I’ve already – 

[Crosstalk]  

Darryl Genis: – ____ ____ the defense? 

Male: I’ve already given you my opinion and my position.  We’ll be in recess ’til 1:30.   

Male: I would like to – if not now then when we get back, I would like to be heard on at least some of the Court’s comments and some of counsel’s comments.   

Male: You want to be heard now or at 1:30?   

Male: I might as well do it now and I don’t know how – I’m biting my tongue which I’ve done for the last six days.  Mr. Genis to in any way insinuate that this individual is a professional liar or academically dishonest is offensive.   

It’s offensive to me as a representative of the court and I’m sure it is offensive to the witness and is extremely uncalled for.  She may not be saying what he wants, but I get the feeling in sitting here listening to her she is struggling to answer questions that are cleverly put in compound, argumentative – in an argumentative fashion.   

The one thing that has surprised me, having just recently come to California, is the amount of, let’s say, crap that judges are willing to take from defense counsel in some of these matters.  I think that there’s been some offensive comments made.   

I don’t think Mr. Genis really cares when the Court makes a ruling as to not being argumentative or saying objection or making objectionable comments or making snide side comments, you know, standing in front of here and pointing to his client and saying that she’s never been arrested before.   

Those kinds of things are – I’m shocked.  I have been shocked in coming out here that that is behavior that is tolerated and not reined in and dealt with.  It’s just not what I’m used to seeing.   

I don’t know if this particular case is representative of the way all trials take place in the State of California.  I certainly hope not.  I’ll stop there before I get myself into trouble.   

Male: All right.  We’ll be recessed until 1:30.  Ms. Lyons, you can step down. 

Denise Lyons: Thank you.   

Male: – court.  The Ventura County Superior Court is now in session.   

Male: All right, so we can go back on the record in the matter of People v. Mary D. Selznick, Case No. 2007-013662.  Our witness is still on the stand under oath.  Defendant’s present with counsel.  The People are present.  Mr. Genis, you can pick up where you left off.   

Darryl Genis: Thank you, Your Honor.  Just before lunch, you were on direct exam telling the jury through the retrograde extrapolation that you believe that my client – the hypothetical question was a .10 kind of driving.  Is that – did I retain your testimony correctly?   

Denise Lyons: No, you did not.   

Darryl Genis: Okay.  What you were testifying to was based on the hypothetical facts including more facts than you needed that if those things were true then that person, whoever that might be, would in your opinion be a .10.  Is that right?   

Denise Lyons: My testimony was that based on the retrograde extrapolation they would have been a .105 at the time of driving.   

Darryl Genis: Mm-hm.  Okay, well, I was truncating, but .105 at the time of driving for the hypothetical person. 

Denise Lyons: For that hypothetical, yes. 

Darryl Genis: Okay.  Is that hypothetical person in this courtroom?   

Denise Lyons: It’s a hypothetical set of circumstances that I was given. 

Darryl Genis: All right, and to the best of your knowledge from a reading of the police report, are those hypothetical facts within the realm of what you expect to be proved here?   

Denise Lyons: They were consistent with things in the police report.   

Darryl Genis: Okay.  Well, in order, as you said, to do that hypothetical, you had to make an assumption that the hypothetical person was post-absorptive.  Is that right?   

Denise Lyons: Correct. 

Darryl Genis: If I asked you to assume that a hypothetical person is post-absorptive and that they give you a single clinical test and got a result of .08, you would be able to place that somewhere on this line but you wouldn’t know where.  Correct?   

In other words, you know it’d be past the peak and it would be somewhere between here and here. 

Denise Lyons: If I was given the fact that they were – with the assumption they were post-absorptive and the result was .08 – 

Darryl Genis: Right. 

Denise Lyons: – they would have to be in the post-absorptive part of the curve. 

Darryl Genis: If I gave you two results and you knew that both of them were post-absorptive and I gave you the times, you’d be able to put the later one in time lower on this line and the earlier one in time higher on this line, but both past the peak, wouldn’t you?   

Denise Lyons: If they were both in the post-absorptive state, they would have to be on this end of the curve because by definition that’s the post-absorptive part of the curve. 

Darryl Genis: Okay, so now in this case, you would agree with me that we have a blood test that was drawn at 9:42.  Yes?   

Denise Lyons: Yeah. 

Darryl Genis: That’s not hypothetical.  That’s proven fact, right? 

Denise Lyons: Yes, it is. 

Darryl Genis: In this case, we have a blood test which tested by your lab came out at a .08. 

Denise Lyons: Yeah. 

Darryl Genis: That’s a proven fact.  It’s not hypothetical. 

Denise Lyons: Correct. 

Darryl Genis: In this case, we have a blood test which is subject to a 5 percent margin of error, right?  That’s the parameters of accuracy of blood testing. 

Denise Lyons: Okay. 

Darryl Genis: Is that right?   

Denise Lyons: Yes. 

Darryl Genis: And if you subtract 5 percent, that becomes an .076, right?   

Denise Lyons: Yes. 

Darryl Genis: Okay, so you’re – and if you add 5 percent, that becomes and 0 – help me out here.  I’m a lawyer, not an accountant.   

Denise Lyons: .084. 

Darryl Genis: .084, okay, so you have a range of high to low based on the margin of error and accuracy of the testing procedure between .076 and .084 and you know that there was a retest that was an .07.  Those are facts in this case, right? 

Denise Lyons: I was told that there was a retest ____ ____ – 

[Crosstalk] 

Darryl Genis: You saw the actual signed declaration under penalty of perjury, didn’t you?   

Denise Lyons: You showed it to me when we were at recess. 

Darryl Genis: Okay, so those are facts that exist subject to proof, right? 

Denise Lyons: Yes. 

Darryl Genis: Okay, now we also have a preliminary screening test in this case that was administered essentially at 8:42 and one of those tests came a minute earlier and one came a minute after but with the 42 and 42 match exactly an hour so I’ve kind of rounded them out.  We have a preliminary breath test that comes an hour earlier than this test, right? 

Denise Lyons: Yes. 

Darryl Genis: And on its face it’s a .08 for both tests, right? 

Denise Lyons: Okay. 

Darryl Genis: But the margin of error for this test is not 5 percent, but 10 percent, right? 

Denise Lyons: .01, yes. 

Darryl Genis: So an .08 could be an .07, right?   

Denise Lyons: That’s – yeah.   

Darryl Genis: It’s within the realm of possibility.   

Denise Lyons: Okay. 

Darryl Genis: And an .08 could be an .09.  That’s equally within the realm of possibility.   

Denise Lyons: Okay. 

Darryl Genis: Right?  These are facts subject to the proof in this case.  These are not hypotheticals, are they?   

Denise Lyons: No. 

Darryl Genis: Okay.  Now, we’ve got essentially an .07 and an .07 or an .08 and .08 depending on which number you wanted to adopt and we know that this one came later.  We know that this one came earlier.  Could you please come up to the board and place these two where on the curve they belong?   

Denise Lyons: No, I can’t.   

Darryl Genis: Now, in making your retrograde extrapolation calculations, do you employ something known as Widmark’s formula?   

Denise Lyons: It’s the basis for the calculations that we do. 

Darryl Genis: Okay.  You told us that you only needed three variables, right?  Do we have that other piece of paper?  Is that still around?   

Male: No.  The janitors took the it at lunch. 

Darryl Genis: Okay.  Can you tell me –?  My handwriting’s terrible.  Assuming you can read my handwriting, does that look like Widmark’s formula?   

Denise Lyons: I actually don’t have it memorized, but it appears to be.  I’m not seeing anything that makes me think it’s incorrect.   

Darryl Genis: Okay, and would you agree with me that in Widmark’s formula there are one, two, three, four, five, six, seven variables.   

Denise Lyons: Yes. 

Darryl Genis: Okay, and does that make for something known as the uncertainties in Widmark’s equation?   

Denise Lyons: Yes. 

Darryl Genis: And is it true that you failed to include the uncertainties in your Widmark calculations?  Your Honor, I have a document I’d like to be marked as Defense Exhibit A.   

Male: All right.  I assume the people have seen it.   

Darryl Genis: I have showed it to them. 

Male: Yes, sir.   

Denise Lyons: The uncertainties, I believe, are accounted for when – I don’t actually use Widmark’s actual equation. 

Darryl Genis: I’m sorry? 

Denise Lyons: I don’t use Widmark’s actual equation.  We do calculations that are based on Widmark’s equation and there are certain things that we do in our calculations that in my opinion help to reduce some of the margin of error, but as far as taking into account for each and every one of those exact variables, not specifically.   

Darryl Genis: Okay.  I’m showing you the Widmark’s equation and tell me what the N stands for. 

Denise Lyons: Oh.  I’m sorry.  I don’t recall the specific variables. 

Darryl Genis: Okay, let’s start with – 

Denise Lyons: Because this is an equation that I learned about four years ago and I don’t commonly use it.   

Darryl Genis: Okay, let’s go with the easy stuff.  Drink means number of drinks, right? 

Denise Lyons: One standard drink, yes. 

Darryl Genis: And F-L dot O-Z means fluid ounces, right? 

Denise Lyons: Yes. 

Darryl Genis: Okay.  Now we got the easy stuff out of the way.  What does W stand for?   

Denise Lyons: You know, I really would have to review it.  I can’t recall off the top of my head.  It’s not something that I commonly use. 

Darryl Genis: What’s the R factor stand for?   

Denise Lyons: I’m not sure.   

Darryl Genis: What’s the C stand for?   

Denise Lyons: I’m not sure. 

Darryl Genis: What’s the T factor?   

Denise Lyons: I’m not sure.   

Darryl Genis: What’s the beta factor? 

Denise Lyons: I’m not sure. 

Darryl Genis: What’s the large T factor?   

Denise Lyons: I’m not sure.

Darryl Genis: What’s the significance of 0.82?   

Denise Lyons: There’s a factor of some sort but I’m not sure. 

Darryl Genis: Okay, and what about all these margins of error, the – for the W, it says there’s a 2 percent margin of error.  For the R, there’s a 9 percent.  For the C, there’s a 4 percent and for the beta factor there’s a 20 percent and for the T there’s a 2 percent and for the 0.82 there’s a 1 percent and for the fluid ounces there’s a 3 percent.  What do all those margin of error mean?   

Denise Lyons: I have no idea.  I’ve never seen those like that before. 

Darryl Genis: Have you ever read any articles written by police expert Rod Gullberg?   

Denise Lyons: No.   

Darryl Genis: Do you know who Widmark was?   

Denise Lyons: I know he was the originator of the Widmark equation and did some of the original alcohol research. 

Darryl Genis: That’s a pretty good guess, but do you know like what his basis of expertise was or why he developed this equation or – 

Denise Lyons: No. 

Darryl Genis: – what era he lived in or anything like that? 

Denise Lyons: No.   

Darryl Genis: Okay.  Is there a kind of a similar type of equation to the Widmark equation called Alha’s equation?   

Denise Lyons: I don’t know about Alha’s equation at all.   

Darryl Genis: Now when you – 

Denise Lyons: Unless it goes by a different name.  That’s – 

Darryl Genis: When you’re considering –.  Your Honor, I have a second document here.  All right?   

Male: Is this Alha’s equation?   

Darryl Genis: No.  That’s Widmark’s again.   

Male: Okay.   

Darryl Genis: B for identification.  While we’re waiting for that, can you please tell the jury what my client’s blood alcohol level was at the time she was driving?   

Denise Lyons: At the time she was driving? 

Darryl Genis: Yeah, what was her blood alcohol level?  Can you tell me to a 99 percent certainty what it was?   

Denise Lyons: No.   

Darryl Genis: Can you tell me to a 99 percent certainty based on the chemical test evidence in this case whether she was under the influence at the time of driving?   

Denise Lyons: With a 99 percent certainty, no.   

Darryl Genis: Okay.  I have another equation here for you and the caption is “Uncertainty in Blood Alcohol Estimates.”  Can you explain that equation to us and why it explains the uncertainty?   

Denise Lyons: No.   

Darryl Genis: You are a forensic alcohol expert, are you not?   

Denise Lyons: Yes, I am.   

Darryl Genis: You have studied these things have you not? 

Denise Lyons: Yes, I have.   

Darryl Genis: Well, can you explain anything on that page?   

Denise Lyons: No. 

Darryl Genis: Do you need to make assumptions about total body water in making calculations for either peak alcohol concentration or burn-off or any of that? 

Denise Lyons: Do I need to? 

Darryl Genis: Are there assumptions made when you’re calculating for retrograde extrapolation?   

Denise Lyons: Yes, there are.   

Darryl Genis: Okay.   

Male: Okay.   

Darryl Genis: C for identification. 

Male: All right.   

Darryl Genis: While we’re waiting for that, are you familiar with how a Becton, Dickinson gray-top Vacutainer is supposed to be handled?   

Denise Lyons: I have general knowledge of that, yes. 

Darryl Genis: Okay, so you’re aware that the manufacturer says that collection, in order to make sure that the powder that’s in the vial, assuming it’s in the vial, is properly distributed through the 10 milliliters of blood, 10 milliliters of blood needs to be placed in the vial and then the vial needs to be inverted eight times meaning that the vial – if this pen were to represent a vial – would not be shaken – and since the Bond movie’s coming out tomorrow – or stirred but rather inverted, one, two, three, four, five, six, seven, eight times. 

You’re aware that that’s the manufacturer’s requirement for handling on collection. 

Denise Lyons: I was not aware that that was their specific requirement, but I do know it’s required that the two be inverted several times to mix the anticoagulant.   

Darryl Genis: Okay.  I have the Becton, Dickinson directions on my computer.  Would you like to come down and look at it? 

Denise Lyons: No.  I don’t doubt that that’s true.  I just was not aware that that was their specific direction.   

Darryl Genis: Okay, and you’re aware that if it’s not inverted ten – eight to ten times that it hasn’t been handled properly and therefore the chemicals haven’t been mixed properly and that can affect the analysis. 

Denise Lyons: It can affect the analysis in the fact that there could be clot formation, yes. 

Darryl Genis: And where is the vial so that one could inspect it visually to see if there are or are no clots in it today?   

Denise Lyons: I don’t know where the vial is.  I – 

Darryl Genis: Well, doesn’t the prosecutor have the burden of proof in this case to produce all the evidence?   

Male: Objection.  Argumentative. 

Male: Sustained. 

Darryl Genis: Okay, where’s the vial?  Doesn’t your lab have it?   

Denise Lyons: I don’t know.  I’m not – I did not check on the custody of the vial at this time.  I’m not sure if it’s still in custody as been retained or not.  I’m not sure.   

Darryl Genis: Well, can we approach, Judge?   

Male: Yes.   

Darryl Genis: Exhibit C, “Uncertainty in Total Body Weight.”  Can you explain that equation to the jury, please?   

Denise Lyons: No.   

Darryl Genis: Did you test this vial for preservative level?   

Denise Lyons: No, I did not.   

Darryl Genis: Doesn’t Title 17 require 1 percent?   

Denise Lyons: I’m not sure what the requirement is for the preservative, I’m sorry.   

Darryl Genis: Isn’t the requirement for preservative to ensure that there won’t be any bacterial growth?   

Denise Lyons: Yes. 

Darryl Genis: Don’t some bacterias eat sugar and poop alcohol?   

Denise Lyons: Yes, there are some that do that. 

Darryl Genis: And the most common found on human skin is called a Candida Albicans, is it not?   

Denise Lyons: I’m not sure if that’s the most common one found on skin or not. 

Darryl Genis: Candida is actually a yeast, isn’t it?   

Denise Lyons: Yes. 

Darryl Genis: And that Candida, if it were to make its way into the vial would sit inert waiting until a food source appeared and once a food source would appear, it would consume the food until it was gone.  It would excrete its byproduct and then when no food was present, it would die.  Isn’t that how that works?   

Denise Lyons: That could be how it worked.   

Darryl Genis: Now suppose I’m a lab tech at Becton, Dickinson and I’m wearing surgical gloves and suppose that I have the B&D tube but it hasn’t got the gray stopper on it yet and I’ve got a pile of sodium fluoride here and a pile of potassium oxalate here and somewhere between the potassium oxalate going into the vial and the next step my nose itches.   

I’m wearing surgical gloves, so I scratch my nose and then I put the sodium fluoride into the vial and then I put the gray top on it.  Can you see how easy it would be for a common human bacteria to make it into the vial?   

Male: Objection, Your Honor.  That calls for speculation.   

Male: I’ll let her answer it.  You can answer with an explanation.  It’s not limited to yes or no.   

Denise Lyons: Thank you, Your Honor.  First of all, I would consider that to be a poor laboratory technique to be touching your face.  Second of all, I cannot testify as to the practices of Becton, Dickinson as how they train their employees or what their procedures are, what types of quality control they do, any of that. 

Darryl Genis: Now suppose you have the blood nurse, Ms. Chow, and suppose as she taking the arm she’s gonna clean it.  Now if you wanted to clean it and make sure that you didn’t get any bacteria into the penetration site, you would clean away from the site in a motion like that and then you’d take a fresh wipe and you’d clean away from the site like that and that way the site would be clean, correct?   

Denise Lyons: I’m not a phlebotomist.  I don’t know their exact procedure.   

Darryl Genis: If you instead take a wipe and just go like that, all you’re doing is smushing the bacteria around in the site location, aren’t you? 

Male: Objection, Your Honor.  She’s already indicated she’s not a phlebotomist. 

Male: Sustained on foundation grounds.   

Darryl Genis: And the cleaning solution that they use at the lab, according to the paperwork, is called aqueous Zephiran.  Are you aware of that?   

Denise Lyons: Yes. 

Male: Objection.  At the lab?   

Darryl Genis: I mean at the hospital.   

Male: Then same objection.  She’s not ______.   

Darryl Genis: Okay.  I’ll lay the foundation for it.  Who prepares the blood kits for the hospital?   

Denise Lyons: They’re prepared at the laboratory. 

Darryl Genis: At your laboratory. 

Denise Lyons: Yes. 

Darryl Genis: And what do you put in those blood kits? 

Denise Lyons: To be honest with you, I’ve never prepared them and I am not sure.  I know that they put blood vials, a security seal in it and the instructions, but what else may be in it, I’m not 100 percent sure.   

Darryl Genis: Do we have ____ ____?  I was right here. 

Male: All right.  I want to have both counsel approach briefly on the ______.   

Darryl Genis: See if you can find that.  So are you prepared to say that the solution, the cleansing pad that’s included in the blood kit is aqueous Zephiran?   

Denise Lyons: Based off just that information, no.  I told – I said I’m not 100 percent aware of what’s in the kits. 

Darryl Genis: Okay.  Well, let’s do it this way then.   

Male: Which sections?  Yeah.   

Darryl Genis: I’m showing you a document labeled “Medical Record of Blood Specimen,” and for the record this should probably become Exhibit D.   

Male: It’s already – 

Male: It’s admitted. 

Darryl Genis: Is it already in?   

Male: It’s already in.   

Darryl Genis: Okay.  Can we just have it identified as what exhibit it is for the record?  Do you know –? 

Male: I think that it was No. 1.   

Darryl Genis: And does it say what the cleaning solution is?   

Denise Lyons: It’s hard to tell if we could see that it was actually ____ ____ and it does say aqueous Zephiran there.   

Darryl Genis: And you were looking to see that this was a document in this case?   

Denise Lyons: No.  I just want to make sure that it – of what I’m looking at, what I’m testifying to. 

Darryl Genis: Okay.  Did you hear the district attorney after I showed this to him not in acquiescence that that was the document that he had already referred to?   

Male: Let me just – Mr. Genis, why don’t we just show her the actual document – 

Darryl Genis: Fine. 

Male: – and just cut to the chase and – 

Darryl Genis: Yeah.   

Male: – does the clerk have all these _____ _____?   

Darryl Genis: I have _____ the clerk with these.   

Male: That’s it.   

Darryl Genis: The clerk found it faster than me.  He’s that good.  Exhibit 1, official court document.  No reason to doubt it, right?   

Denise Lyons: I just like to know what I’m testifying to if I’m making ____ ____. 

Darryl Genis: Okay.  Aqueous Zephiran, right?   

Denise Lyons: Yes, it is.   

Darryl Genis: Okay, and I can do that at _____ at that point.  You guys had that with us today, so.  It’s folded _____ there.  Okay, just have to _____ ____.   

Male: Are we waiting on a question, Judge? 

Male: Mr. Genis? 

Darryl Genis: Yeah, I’m trying to find the – since I can’t find the piece of paper that was printed out with the documentation showing that this solution contains alcohol – 

Male: Judge, I just – 

Male: I just want to find out we’re gonna be expeditious in terms of leading into the question.   

Darryl Genis: I’m trying.  Okay, well, let me just do it this way.  You can’t – you’re not prepared to say that aqueous Zephiran does not contain alcohol, are you?   

Denise Lyons: I’m not 100 percent sure of what it contains.   

Darryl Genis: Okay, and you are aware, however, that Dr. Kurt Dubowski has written in peer-reviewed articles that when doing a forensic blood draw, only soap and water should be used to clean the draw site.   

Denise Lyons: I’m not aware of that statement, no.   

Darryl Genis: Okay, and it makes perfect sense to you that if you place alcohol on the draw site and then take a needle and penetrate the skin into the vein that there is risk of alcohol from the cleansing solution mixing with the blood as the needle is passing over that site because alcohol is a – I’m not finished with the question because – 

[Crosstalk]  

Male: You’re Honor.  That’s leading. 

Darryl Genis: – because alcohol is after all a volatile chemical.  It tends to evaporate at a very low boiling point like below body temperature, right?   

Male: Objection.  That was a long-winded statement with a “right” at the end of it.   

Darryl Genis: It’s a leading question.   

[Crosstalk]  

Male: ______ a question.   

Male: All right.  What’s the grounds of the objection? 

Male: An improper question.   

Male: It’s not a valid objection.  Overruled.   

Denise Lyons: I think you would need to rephrase the question.   

Darryl Genis: Let me rephrase it for you – 

Denise Lyons: Thank you. 

Darryl Genis: – and make it real simple.  If you put alcohol on the skin and then you take something that has a hole in it like a blood draw needle that there’s no way to be certain whether some of that alcohol is getting into the hole in the needle and mixing with the blood, is there?   

Denise Lyons: There is no way to be certain.  I have, however, read studies where they have done testing for that, where they’ve put actual alcohol on a pad and put the syringe through it and drew blood and did not have appreciable alcohol in the sample. 

Darryl Genis: Okay, but there are also studies like Dr. Dubowski’s that say that when doing a forensic blood draw, that is when doing a blood draw for somebody who’s been arrested for the crime of driving under the influence, the skin site where the blood is drawn should not be treated with anything that has any alcohol in it. 

Denise Lyons: I’m not aware if that’s his opinion or not.   

Darryl Genis: Does that sound like a reasonable opinion to take out of an abundance of caution?   

Denise Lyons: That could be someone’s opinion.  I don’t necessarily agree with that opinion.  I think that to have an abundance of caution you would definitely want to make sure you’re using a solution that does not contain any ethyl alcohol.   

Darryl Genis: Okay, now – 

Denise Lyons: But in the absence of ethyl alcohol, I would think that it would be fine.   

Darryl Genis: If the aqueous Zephiran solution has something other than ethyl alcohol in it then it wouldn’t measure in an Alco-Sensor IV, would it?   

Denise Lyons: I cannot determine whether there’s anything in Zephiran that would measure on a Alco-Sensor IV.   

Darryl Genis: But isn’t an Alco-Sensor IV allegedly supposed to be specific for ethyl alcohol?   

Denise Lyons: It does – can have some – it can have some reaction to other – some other alcohols. 

Darryl Genis: By the way, do you know if my client had airbags on her car?   

Denise Lyons: No. 

Darryl Genis: Do you know if the airbags – if she had them if they deployed? 

Denise Lyons: I wouldn’t know if airbags deployed.  I didn’t know they – if they exist.   

Darryl Genis: Do you know what the Tindall Effect is as it relates to breath testing? 

Denise Lyons: No.   

Darryl Genis: Let me recap.  You can’t tell us where on that curve the blood test goes, right?   

Denise Lyons: I could say where – from what – you can’t – you cannot make a statement from one blood test where on a alcohol curve it would be.   

Darryl Genis: Okay, but we know that the bottom line represents time, yes? 

Denise Lyons: Yes.   

Darryl Genis: And we know that 8:42 was an hour before 9:42, right? 

Denise Lyons: Yes, we do. 

Darryl Genis: So we know that this test has to be somewhere closer to the intersect than this test on the bottom line, right?   

Denise Lyons: No, we don’t know that.   

Darryl Genis: Okay.  What I’m gonna draw – 

Denise Lyons: Oh, on the bottom.  I’m sorry.  I misunderstood.  Yes, that is correct.   

Darryl Genis: Okay, ’cause this point right here represents the zero time. 

Denise Lyons: Zero.   

Darryl Genis: And depending on how many hours this curve represents, and we don’t know, you could put 8:00 here or you could put 8:00 here.  Depending on where you put 8:00, that would determine where you’re gonna put 9:00, right?   

Denise Lyons: Mm-hm.  

Darryl Genis: Okay, but wherever you put 8:42 on this line, whether it’s here or here or anyplace in between, 9:42 has to come after.  It can’t come up the same time and it can’t come before, right?   

Denise Lyons: Correct. 

Darryl Genis: Because these two points are linear, right?   

Denise Lyons: Time is linear. 

Darryl Genis: Right.  These two points, the 8:42 and 9:42, those are linear points. 

Denise Lyons: Correct. 

Darryl Genis: So they have to be represented on this bottom line and the blood alcohol levels, those would be related somewhere on this curve depending on where the linear timelines get put, right? 

Denise Lyons: Correct. 

Darryl Genis: So tell me; where do I put the 9:42?  Do I put it here or do I put it here or do I put it somewhere in between?   

Denise Lyons: Based on just one point, you can’t put it anywhere on the curve because you don’t know.  You only can put it on the point if you – on the curve if you take information that would lead you to believe that it’s either in the pre-absorptive state or the post-absorptive state. 

Darryl Genis: Right.  Now, if a person is – when you did your calculation to come up with the .105 at the time of driving, did you use a .015 burn-off or did you use a .020 or a .018?  Which one did you use? 

Denise Lyons: I used a .015. 

Darryl Genis: Okay.  Now if you use a .015 and you go back an hour to 8:00, in the hypothetical or in the officer’s report – the same officer who said that my client was 5’1” and weighed 125 pounds, also wrote in his report that my client said that she quit drinking at 8:00 in the evening.   

Now I want you to assume that a person quits drinking at 8:00 in the evening.  Based on that assumption, from what you know about average absorption and peak and elimination, you would expect that person to be in the fully absorbed state no later than, what, an hour or two hours after their last drink? 

Denise Lyons: Correct. 

Darryl Genis: So if they quit drinking at 8:00 then they would have to be post-absorptive by 10:00, right? 

Denise Lyons: Correct. 

Darryl Genis: Okay.  So from 10:00, the blood alcohol level is falling.  From 9:59 the blood alcohol level is plateauing or rising, right? 

Denise Lyons: I’m sorry.  Say that part again.   

Darryl Genis: If we assume that a person quit drinking at 8:00 and we further assume that they completely absorbed all the alcohol that they’re gonna consume by 10:00. 

Denise Lyons: Okay. 

Darryl Genis: Then at all points in time 10:00 p.m. and later that person’s blood alcohol level would be coming down, won’t it? 

Denise Lyons: Correct. 

Darryl Genis: Okay.  Now let’s do a full retrograde based upon the facts, the so-called facts, that the officer recorded for this 5’1”, 125-pound client who’s now seated in court and suddenly grew to 5’6” and 235.   

Male: Objection, Your Honor. 

Male: Sustained. 

Darryl Genis: Let’s – 

Male: Sustained. 

Darryl Genis: I’ll rephrase.  Let’s go ahead and do the calculation.  I want you to assume that a person is given a blood test at point 9:42 in the morning. 

Denise Lyons: One second, please.  Okay, I’m ready.   

Darryl Genis: You’ve got a female weighing 235 pounds who at 9:42 is given a blood test and your lab tests for alcohol only, no preservative test, no bacteria test.  Your reading is an .08.  Now I want you to go backwards in time and tell me what was her blood alcohol level at 10:00 at night when she reached her peak.   

Denise Lyons: At 10:00 p.m.?   

Darryl Genis: Yes, ma’am.   

Denise Lyons: Okay.  Okay.  Based on a test at 9:42 a.m. of .08 extrapolating back to 10:00 p.m. the night before, assuming full absorption at that time, there would be a alcohol concentration of .26.   

Darryl Genis: And now I want you to tell me in order for a 235-pound woman to get to a peak blood alcohol level of .26 if she stopped drinking at 8:00 and the .26 related to 10:00 and assume that she started drinking – I just want you to assume that that person started drinking at 6:00, so the drink period is from 6:00 to 8:00 p.m. 

Denise Lyons: They started drinking at 6:00 and stopped consuming alcohol at 8:00 p.m.? 

Darryl Genis: That’s right. 

Denise Lyons: Okay, and based on that – 

Darryl Genis: And they said they were drinking beer, so I want you to tell me how many ounces of beer a 235-pound woman would have to drink in two hours in order to acquire a true blood alcohol level of .26.   

Denise Lyons: Okay.  Okay, I would estimate based on that information and the standard drink they would have had to have consumed 19 standard drinks. 

Darryl Genis: What is a standard drink?  It’s a 12-ounce beer? 

Denise Lyons: Yes. 

Darryl Genis: How many ounces is 19 times 12?   

Denise Lyons: Two hundred and twenty-eight. 

Darryl Genis: Two hundred and twenty-eight ounces.  From 6:00 to 8:00 is 120 minutes, right? 

Denise Lyons: Yes. 

Darryl Genis: And 19 beers in 120 minutes would be how many beers per what time period?   

Denise Lyons: It would be 1.9 ounces per minute.   

Darryl Genis: Okay, so about every 10 minutes for two hours she drank a beer straight, right?  Twelve beers would take two hours at ten minutes per beer, wouldn’t it?   

Denise Lyons: Yes. 

Darryl Genis: Okay, so it would have to be about every six minutes for a beer, wouldn’t it?   

Denise Lyons: Oh, you’re trying to decide by beer.  I can do that. 

Darryl Genis: Yeah, per 12-ounce can.  How many minutes per can for 120 minutes?   

Denise Lyons: 6.3 minutes. 

Darryl Genis: So in order for the blood test that you conducted to be accurate, my client – and for the statements of the officer as to when my client started and stopped drinking to be accurate, my client had to drink a 12-ounce can of beer every six some odd minutes for two hours straight.  That’s what your testimony would be, right? 

Denise Lyons: Based on the information that was given me, yes.   

Darryl Genis: Okay.  Does that sound to you like a normal social drinking pattern? 

Denise Lyons: No, I would not say that’s a normal social drinking pattern. 

Darryl Genis: All right.  Do you know what the Mellanby effect is?   

Denise Lyons: Yes. 

Darryl Genis: Okay, that is essentially in simple English that a person will be more impaired on the way up than they will on the way down at the same levels at both points.  In other words, if you have .08 on the way up and .08 on the way down and you observe that person at both times, they will show more signs of impairment while their blood alcohol level is rising.  That’s the Mellanby effect, right? 

Denise Lyons: That’s not my understanding of it. 

Darryl Genis: What is your understanding of it? 

Denise Lyons: That at the same concentration on the way up and the way down that they would have – there would be a perceived – actually would you repeat that?  I think – 

Darryl Genis: Perceived impairment would be greater during the rise than in the fall, right? 

Denise Lyons: Perceived impairment, yes. 

Darryl Genis: Perceived impairment.  Okay, so if a person – and that’s because a human being is a dynamic existence and we acquire the ability to overcome various handicaps, right?   

Denise Lyons: Correct. 

Darryl Genis: So if I were to stub my toe really bad walking into court, I might have a really bad limp on my way into court, but an hour or two later, my toe might still be very hurt but the limp wouldn’t be as obvious ’cause I would have adjusted the other parts of my body to try to walk more normally.  That would be kind of an example of what we’re talking about, wouldn’t it?   

Denise Lyons: That would be fair, yes.   

Darryl Genis: Okay.  Now, if a person is at a .07, they might but aren’t definitely gonna be under the influence.  Would you agree with that?   

Denise Lyons: Yes. 

Darryl Genis: And they’re clearly not over the legal limit if they’re at .07.  You’d agree with that, too, wouldn’t you?  That’s just simple math.   

Denise Lyons: Yes. 

Darryl Genis: Okay, and if a person is an .07 on the way up and an .07 on the way down, they’re gonna be showing less signs of impairment on the way down.  You would agree with that, too, right?   

Denise Lyons: Less objective signs? 

Darryl Genis: Yeah. 

Denise Lyons: Yes. 

Darryl Genis: Okay, and if a person had quit drinking at 10:00 at night or at 8:00 at night then whatever their blood alcohol level peaked at and if they had a lower reading during the post-absorptive phase, based on the Mellanby effect, that same reading on the rise would have been more apparent impairment, right?   

Denise Lyons: I think the outward signs of impairment would be less on the upward side of the curve. 

Darryl Genis: Okay, so now let me ask you a couple more questions.  You were not there on the night in question when Mary was driving, right? 

Denise Lyons: Correct. 

Darryl Genis: You weren’t a witness to the accident and you have no opinion as a scientist as to whether alcohol had any contributing factor to that accident.  You don’t have any information on that, do you?   

Denise Lyons: I have the information that’s been provided to me. 

Darryl Genis: Well, in hypotheticals.  I’m talking about the facts.  The facts are when she was out on the road and the other motorist and her met accidentally that you were either on your way to work or you were at work or if it was a weekend you might have been at home enjoying your own private life, but you weren’t out there watching this accident.   

Denise Lyons: No, I have no personal knowledge of the accident. 

Darryl Genis: Right, and as far as the field sobriety testing, you don’t know if it was done correctly or incorrectly and you don’t know how she performed on it, do you? 

Denise Lyons: I have no personal knowledge of that, no.   

Darryl Genis: Okay, and as far as what her true blood alcohol level was when she was driving, you can’t say with any level of scientific certainty, can you? 

Denise Lyons: I believe that the calculations are scientifically based but as to what level of certainty is attached to that, I can’t testify to. 

Darryl Genis: Okay, let me translate that into another question.   

Denise Lyons: Okay. 

Darryl Genis: You believe that your calculations are mathematically correct based on the hypothetical that you answered.  Yes?   

Denise Lyons: Correct. 

Darryl Genis: But you can’t apply the hypothetical to the facts of this case because you don’t know what if any of those hypothetical facts have been proven, do you?   

Denise Lyons: No, I don’t. 

Darryl Genis: And your hypothetical did not take into account any of the factors in Exhibits A through C as to the variability of your calculations. 

Denise Lyons: I can’t testify to those documents. 

Darryl Genis: Because you don’t understand the math that’s expressed on them, do you?   

Denise Lyons: Because I have not had time – I didn’t have time to review them.  They’re very complicated equations and as I testified earlier, I’m not prepared to discuss them at this time, so I can’t then take that and apply it to something I’ve testified to.   

Darryl Genis: Okay.  Well, let’s do this.  When you did the calculations, the retrograde? 

Denise Lyons: Mm-hm. 

Darryl Genis: You took algebra in school, right? 

Denise Lyons: Yes. 

Darryl Genis: Do you remember your teacher telling you to show me your work?   

Denise Lyons: Yes. 

Darryl Genis: Show me your work.  Do the retrograde, but write it out.  Don’t leave anything off.  I want to see the entire equation.   

Male: Well, she has.  It just looks _____.   

Darryl Genis: Your Honor, may I move closer so I can see?  I’m colorblind to yellow and orange is almost as hard to see. 

Male: All right.  Both counsel can approach if they need to, Mr. Sabo as well. 

Male: I can see just fine.   

Male: All right.  While Ms. Lyons is working on that, let me just make use of the time and see counsel at the bench briefly.   

[Crosstalk] 

Male: All right, we can go back on the record at this time and counsel, you can pick up where you left off. 

Male: Thank you. 

Darryl Genis: Ms. Lyons, is this equation finished now?   

Denise Lyons: Yes. 

Darryl Genis: And I apologize I have to get all the way up here, but I really – 

Denise Lyons: And I apologize for using orange.  (Laughter)   

Darryl Genis: Well, at least you didn’t use yellow.  If you’d have used yellow, I would have been going, “Well, you didn’t put anything up there.”  But – so drive time at 8:00, that’s pretty self-explanatory.  Test time is 9:42.  That’s also explanatory.  What is this 1:42?  What is that? 

Denise Lyons: That’s the amount of time in between the test time and the drive time, an hour and 42 minutes. 

Darryl Genis: Drive, okay, and we know that the test time – so we kind of would draw a loop over.  That kinda should be in parentheses. 

Denise Lyons: That’s how I draw my notes. 

Darryl Genis: I got it.  Okay, so the actual equation is these two lines, right? 

Denise Lyons: Yes. 

Darryl Genis: .015.  What does that represent? 

Denise Lyons: That represents the elimination rate that I used. 

Darryl Genis: Okay, .015 times 42 over 60.  What does that represent? 

Denise Lyons: The elimination rate is expressed in – as a percent per hour, so the first 0.15 represents the amount of elimination that would have taken place in one hour’s time. 

Darryl Genis: I get it. 

Denise Lyons: The second is I kinda drew it out longhand so it’d be easier to see.  That represents the amount of elimination that would have taken place in 42 minutes. 

Darryl Genis: Okay, so again, this 015 relates to that one.  This 015 is a fractional because that’s not a full hour? 

Denise Lyons: Correct. 

Darryl Genis: And that’s how you do the math for that 42 right there. 

Denise Lyons: Yes. 

Darryl Genis: Got it, so it’s that plus that plus the .08 is what your answer would be, right? 

Denise Lyons: Correct. 

Darryl Genis: Okay, and so that works out to .015 plus .0105 plus .08 equals .105. 

Denise Lyons: Correct. 

Darryl Genis: Okay.  Now, if you were to change the .08 to an .07, this whole equation would change a little bit, wouldn’t it?   

Denise Lyons: If that were .07 – if the test result was an .07, ____ ____, yes. 

Darryl Genis: And you know that at least one lab got an .07, right? 

Denise Lyons: Yes. 

Darryl Genis: Okay.  Now if you haven’t tested my client then you don’t really know whether she burns off at a rate of .015 per hour, do you? 

Denise Lyons: No, I don’t. 

Darryl Genis: Okay.  Now the range in the literature, the average was a .018.  Is that right? 

Denise Lyons: Yes. 

Darryl Genis: Okay.  Why didn’t you use the average in your calculation? 

Denise Lyons: Well, as you mentioned, the range is larger than that and we try to use a number that’s a little more conservative because we don’t know exactly where that person is, so we pick a more conservative number that actually is a little more to the benefit of the person just because we don’t know what that person’s actual number is. 

Darryl Genis: Okay, and of course you didn’t use the higher – the outside limit of .020, right?   

Denise Lyons: Correct. 

Darryl Genis: You didn’t use – what burn-off rate did you use when you did the calculations to come up with the 19 beers?  Did you use the .015, the .018 or the .020? 

Denise Lyons: .015. 

Darryl Genis: Can you do that calculation again for me with the .020?  Not that one, the how many beers if she started drinking at 6:00, stopped drinking at 8:00, peaked at 10:00, blood tested at an .08 at 9:42.  How many beers is she burning off at a .020 per hour?   

Denise Lyons: Okay.  Would it be possible for me to have another color pen?  Is there a black or a blue pen? 

Darryl Genis: I would love for you to have another color pen. 

Denise Lyons: Thank you. 

Darryl Genis: Anything but this one right here. 

Denise Lyons: Okay. 

Male: Now, she’s talking about for her _____ _____. 

Denise Lyons: Oh.  Were you meaning for me to do that on the board?  I was gonna do it on my notes here. 

Darryl Genis: You can do it on your notes.  That’s fine. 

Denise Lyons: Okay.  All right.   

Darryl Genis: I just – I’m really just interested in the bottom line of how many more than 19 beers. 

Denise Lyons: Okay.   

Darryl Genis: Kind of a forensic version of the 100 bottles of beer on the wall. 

Denise Lyons: Okay.   

Male: While we’re waiting is a issue I’m gonna bring up with the jury I’ll ask you to think about.  We’re gonna take a break in a minute or two.  As I mentioned at the beginning of the case, we had talked about obviously being in schedule all this week and if we – tomorrow, the case, we anticipate, will go to the jury.   

I believe all the evidence will be in.  The question I wanted to leave with you is for reasons that have to do with convenience of the parties, I was gonna ask the jury to consider the possibility of being dark tomorrow, not being in session and coming back on Monday.   

Now what that would mean is that you would begin your deliberations sometime Monday morning as opposed to tomorrow morning.  Think about it over the break we take in a few minutes and if any juror has a problem with that, let me know.   

I can never anticipate once deliberations begin how long they’re going to be and that’s up to the jury.  It’s not up to me.  It’s not up to counsel.   

So the call of the question is whether we forge straight ahead and that would mean that the case would go to you, the jury, sometime probably tomorrow morning, maybe late tomorrow morning, or go dark tomorrow, not be in session, and resume Monday. 

And then the case would go to the jury and you’d start deliberating sometime probably late Monday morning, so I’ll ask if any of the jurors have a problem with that when we come back from our recess which we’ll take in about five minutes.  Ms. Lyons, whenever you’re ready, let us know. 

Denise Lyons: Okay.   

Darryl Genis: Your Honor, can we approach? 

Male: Mm-hm.   

[Crosstalk] 

Denise Lyons: Yeah, I’m done.   

Male: All right.   

Darryl Genis: Are you all done? 

Denise Lyons: Yes, I am.   

Darryl Genis: Okay, and I know the answer is gonna be more than 19 beers. 

Denise Lyons: Yes. 

Darryl Genis: So we’re all waiting with bated breath and the answer is – drum roll, please. 

Denise Lyons: 23.6. 

Darryl Genis: Okay.  Now remember that two hours?  That’s 120 minutes, so how many beers every – how many minutes every – for each beer?   

Denise Lyons: Five minutes. 

Darryl Genis: Did they find a beer bong in my client’s car, do you know? 

Male: Objection, Your Honor.  That’s argumentative. 

Male: All right.  Sustained.   

Darryl Genis: Once again, that’s not a normal social drinking pattern, is it? 

Denise Lyons: No, it’s not. 

Darryl Genis: That’s a classic chug-a-lug kind of a drinking pattern, isn’t it? 

Denise Lyons: To consume beers at that rate, yes. 

Darryl Genis: And even – you went to college.  Were you a member of a sorority? 

Denise Lyons: No. 

Darryl Genis: Did you ever go to a sorority party? 

Denise Lyons: No. 

Darryl Genis: Anything like that? 

Male: Objection, relevance. 

Male: All right, sustained.   

Darryl Genis: Okay.  Adults don’t drink 20 – 20 – how many beers? 

Denise Lyons: Based on the elimination rate of .02 that would be 23.6 beers. 

Darryl Genis: Basically, we’re talking about two 12-packs here, aren’t we?   

Denise Lyons: Basically. 

Darryl Genis: That’s an awful lot of beer, isn’t it? 

Denise Lyons: That’s a lotta beer. 

Darryl Genis: And in order to believe that the blood test result that you got was correct in this case, we have to – and to believe that she stopped drinking at 8:00, we have to believe that she drank two 12-packs, don’t we? 

Denise Lyons: For that hypothetical, yes. 

Darryl Genis: Yeah.  Now if we were to make the drinking period bigger; in other words, we could move the 6:00 down or the we could move the 8:00 out or we could do both.  That’s just gonna make more beers necessary, isn’t it?   

Denise Lyons: It’s definitely gonna change the calculations. 

Darryl Genis: Okay, but if you have a shorter drinking period, just hypothetically have a one-hour drinking period, you have a blood alcohol level, you do the calculations, you get X number of beers to get that Y blood alcohol level.  If you expand the drinking period, that’s going to raise the number of beers, isn’t it? 

Denise Lyons: Yes, it is.   

Darryl Genis: So if we were to say instead of drinking for two hours she was drinking for three hours, then we’d have to say instead of having 24 beers, she would have had to have 28 beers or something like that.  It’s just gonna keep getting bigger.  It’s never gonna get smaller if we make the drink period bigger, is it?   

Denise Lyons: No, if you make the drink period bigger, the number would go up because you would have to assume that there was elimination also going on for that entire time. 

Darryl Genis: Okay.   

Male: Why don’t we take a – unless you’ve one or two more questions, I was gonna give the jury a break.   

Darryl Genis: I was gonna go into a different subject, so this would be a great time for a break. 

Male: All right.  We’ll be in recess until 20 after 3:00, again 20 after 3:00.  Remember the court’s admonition – I’m required to give it every break – not to talk about the case nor form or express any opinion about the case until you’ve heard all the evidence and actually begun your deliberations.  We’ll see you back here at 20 after.   

All right, our jury and alternate left the room.  Defendant is present with counsel.  The People are present.  Ms. Lyons, would you step down and I hope you basically can make use of the water up there and – 

Denise Lyons: Yes, I got very thirsty.  Thank you.  If you wouldn’t mind, could I just make one statement?   

Male: Sure. 

Denise Lyons: Just if this would be of use to counsel at all, there is an image of the vial if you were interested in looking at the outside of vial.  That is readily available, actually is in this packet that’s up here, so. 

Darryl Genis: I have them. 

Denise Lyons: Okay.  I just wanted to make sure you knew.   

Male: Do you know off the top of your head where the CHP keeps the blood vials?  I’m just curious. 

Denise Lyons: I’m not familiar with their procedures and where they store them. 

Male: Fine.  Okay, thank you.   

Denise Lyons: Okay. 

Male: Before I forget, just for the record, there were two jury notes.  We talked about them both at the bench.  The first one that came in I believe was before the – 

Darryl Genis: When was that?   

Male: From Juror No. 12.  That was the question about the board that was facing in the jury’s direction with the calculations on it regarding the testing and I brought that to the attention to all counsel. 

And then there was a second note I believe by the same juror, Juror No. 12, asking a question about whether Mr. Genis’ phone was on, something that doesn’t happen to be allowed while – and we talked about them both at the bench.  I just wanted to put it ____ ____.  He’s minding – he’s on point with every detail. 

Darryl Genis: Right.  I was reading something ______. 

Male: He was watching us like a hawk.  When Mr. Genis was trying to do something for you, he kept trying to shut the thing off to stop it from ringing and I think that’s what he was talking about. 

Darryl Genis: Oh. 

Male: You were slamming the button. 

Darryl Genis: I was – it was breaking my train of thought. 

Male: Yeah, there was a comment.  I caught it where you had said, “Leave me alone,” when you reached for your phone.  I don’t know if that was what he was talking about but I also picked it up.   

I don’t think it’s a big deal.  I just _____ whenever jury questions come up and bring them to counsel’s attention and put them on the record.  It was definitely a lot of mileage got out of Mr. Widmark, so. 

Male: _____ Widmark or –?   

Male: Anything we need to take up? 

Male: I have nothing. 

Darryl Genis: No.   

Male: What’d you say, Judge, 20 after? 

Male: Twenty after and I don’t know what the jury is gonna say about this issue of whether we’re gonna take tomorrow off or not, so – 

Male: Oh, do you have to leave tomorrow? 

Darryl Genis: Well, we’ll see what happens.   

Male: Okay.  Mr. Sabo, I’m sorry.  You walked in.  I’m gonna sign off on this order.  It’s basically just to make it available, not produce it in court.  It’s just to allow them to inspect it.  Is that the ______? 

Male: You want to go now? 

Darryl Genis: Oh, I’ll go after your redirect. 

Male: Just be careful.  What I don’t want you to do is show up there at like 4:30 and have them say, “Well, it’s gonna take us 45 minutes to dig it out.” 

Darryl Genis: And so you’re ______ where you should really just say – I don’t want them to have to turn it over ’cause they provide to – 

Male: I wonder if I could call them. 

Darryl Genis: It doesn’t say.  Well, I know that I could call them ____ ____. 

Male: I think you’d be better off showing up with the order than calling them. 

Male: A blood vial and then blah, blah, blah, blah, blah, blah.  Does that make sense?   

Darryl Genis: ’Cause otherwise they’ll be confused to _____ that ’cause I know to just allow examination of it. 

Male: Be seated and come to order.  Court is again in session.   

Male: All right.  We are back on the record in the matter of People v. Mary D. Selznick.  Defendant is present with both counsel.  Our jury is present with the alternate.  People are present.  Our witness is on the stand and still under oath.  Mr. Genis, you may _____ _____. 

[Crosstalk]  

Darryl Genis: Thank you, Your Honor.  Ms. Lyons, does your lab prepare a reference solution for the Guth simulators that are used to the periodic determinations of accuracy on the preliminary breath machines?   

Denise Lyons: Yes, we do. 

Darryl Genis: And can you explain to the jury what a Guth simulator is. 

Denise Lyons: A simulator is a device that we use to – in order to test the breath machines to make sure that the breath machines are working accurately and what it is, it has a glass jar which holds a solution, an alcohol – a solution of water and alcohol that we’ve determined the exact concentration of in the laboratory.   

There’s a agitator in there that keeps the solution distributed.  There also a feeding probe in there that keeps the solution to 34 degrees, and there’s a breath tube on the top that goes down that can bubble air through the solution.   

On the top of this jar is a device that basically has a LCD readout showing the temperature of the solution.  That’s to be 34 degrees plus or minus .2.  It has a inlet breath tube and an outlet breath tube and what you would do when you’re using the device to do the determination of accuracy is you blow into the inlet tube.   

The air goes down, bubbles through the solution and comes out the outlet tube thereby simulating a breath sample that has a alcohol of a known concentration.   

You would then – the – attach that to the breath testing device and by knowing the concentration, the expected concentration, and the concentration that the breath testing instrument actually gave you, we make a determination as to the accuracy at that time.   

Darryl Genis: Now if you create a solution at your lab, generally you create a solution with a value – a known value of .10.  Is that – or .0101 or something like that?   

Denise Lyons: Generally it runs between .110 and .112. 

Darryl Genis: Okay.  Now in order for the gas to have a value measured at 34 degrees of .11, the liquid actually has to have more alcohol in it, doesn’t it?   

Denise Lyons: Yes, it does. 

Darryl Genis: So what would the liquid value be if you were to measure it not through the gas but by a gas chromatograph?  It would be like .13 or something?   

Denise Lyons: Approximately, yes. 

Darryl Genis: Okay, and the heating element – the significance of the number 34 degrees centigrade, that is a value that is expected in some literature to be the temperature of expired breath, right? 

Denise Lyons: I’m not 100 percent sure how the number 34 was chosen as the number, to be honest with you.  I’m not. 

Darryl Genis: Okay, and are you aware that for every degree that the temperature is off there is an 8 percent margin of error? 

Denise Lyons: I know that there is error associated with the temperature being incorrect.  The exact number, I’m not sure, but definitely if the temperature is wrong, you would expect to have an erroneous reading. 

Darryl Genis: The – can I borrow some _____ _____?  Is this what I see over here somewhere?  Right here ____ ____.  I’m reading an explanation of Henry’s Law by way of a chart.  I’m gonna see if this makes sense to you, and if it doesn’t then feel free to say so.  It says – a column on one.   

It says, “Henry’s Law” and on the other side, it says, “Human body.”  And as you go down Henry’s Law, it says, “When an aqueous solution and on the other side, blood, of a volatile compound, and on the human body side it says, alcohol, comes to equilibrium with air in the lungs, there’s a fixed ratio between the concentration of the compound in the air and the concentration in the solution, 2,100 to 1.”   

“Assumption, concentration of alcohol in blood varies, and this ratio is constant for a given temperature, body temperature, percent alcohol reading.  Blood alcohol reading is dependent on how much alcohol is present in the person’s blood.”  Does that sound like a fair explanation of Henry’s Law as it relates to a simulator solution and why it relates to blood and breath? 

Denise Lyons: On the general concept, yes.  I would feel more confident to say that if I had the document to look at, but as far as the general principles, that sounds appropriate. 

Darryl Genis: Well, sure.  I don’t mind showing it to you.  It’s just that – 

Denise Lyons: It just was a lot of information for one question. 

Darryl Genis: Yeah.  Let me show it counsel first. 

Male: I’ve got it.   

Darryl Genis: It’s this graph, right?  The _____ of the – 

Denise Lyons: Ooh, _____ _____. 

Darryl Genis: It’s regular 74 – 7110 anyway, which is not a machine that uses it, which explains it. 

Denise Lyons: Right.  Okay, so it’s taking the basic principles in Henry’s Law and making a correlation to – the exact correlation to the blood testing? 

Darryl Genis: Right, showing how it works. 

Denise Lyons: Okay.  Okay. 

Darryl Genis: Okay, and is that laid out accurately based on your understanding?   

Denise Lyons: Yes, I would say so. 

Darryl Genis: Okay.  Now if you have – all these pens are almost out – the same basic curve here and, again, this is time and this is BAC.  You recognize that curve here, right?  And this is absorption and this is elimination.  All that’s _____ _____, right? 

Denise Lyons: Yes. 

Darryl Genis: Okay.  Now at a point here, zero time and blood alcohol level, .00 percent right there, no alcohol.  If a person were given a blood test and a breath test and they got a .00 reading on both, they would have no alcohol in their system.  Would the relationship of the amount of alcohol in their blood to their breath be 1 to 1 or nonexistent?  Which would be the correct answer? 

Denise Lyons: Well, they would both zero at that time. 

Darryl Genis: Right, and so would the amount of alcohol contained in the blood bear a relationship of equal 1 to 1 with the breath or would it be more correct to say there’s no alcohol in either the liquid blood or the gas breath; therefore, there is no ratio relationship at that time?   

Denise Lyons: I think you could actually argue either one.   

Darryl Genis: Okay.  Well, let’s start – 

Denise Lyons: They’re both zero. 

Darryl Genis: Okay.  Now if the person starts at zero and at some point they’re gonna end up at zero, they’re – whatever – however you explain that relationship of the zero alcohol in the blood and zero alcohol in the breath at these two points, the explanation would have to be the same, right?   

Denise Lyons: Okay. 

Darryl Genis: Now if the person starts drinking, and for my example on an empty stomach a bolus dose, tell the jury what a bolus dose is ’cause probably not all of them know what it is. 

Denise Lyons: That would be one drinking episode where all the alcohol is consumed in one short, finite period of time. 

Darryl Genis: Okay, in simple English, if you wanted to do a study on somebody, you give them a tumbler with pure 80 proof whiskey.  You make sure that they showed up at your lab on an empty stomach.  You confirm that with – well, you couldn’t confirm the empty stomach but you would take a history from them and say, “You didn’t eat for the last 12 hours, right, and you ate light last night.”   

And then you’d give them some sort of test to determine they were alcohol free and then you would give them an eight-ounce glass of 80 proof whiskey or something like that and you would say, “Just drink this as fast as you can without throwing up.”  Okay? 

Denise Lyons: That would be definitely a bolus dose. 

Darryl Genis: That’s a bolus dose.  Okay, and their blood alcohol level would rise pretty quickly based on the empty stomach and the rapid drinking, right? 

Denise Lyons: Correct. 

Darryl Genis: And under those circumstances absorption could be completed as early as say 10 to 15 minutes, right?   

Denise Lyons: It could be, yes. 

Darryl Genis: So time from here to here could be as little as 15 minutes.   

Denise Lyons: It can be very short, yes. 

Darryl Genis: Okay.  Now as their blood alcohol level is going up – well, let me back up.  Breath testing assumes that a person is post-absorptive.  You’ve already testified to that, right?   

Denise Lyons: I wouldn’t say necessarily that breath testing assumes they’re post-absorptive.  I think that being able to do any sort of assumptions based on breath testing assumes that they’re in the post-absorptive state.   

Darryl Genis: Okay.  Take a look at this chart and when it talks about here, comes to equilibrium, if you have a person who is absorbing, that means the amount of alcohol that’s going into the person is greater than the amount of alcohol that’s going out, right? 

Denise Lyons: Correct. 

Darryl Genis: That’s by definition not equilibrium, is it? 

Denise Lyons: Well, there may – systems in the body that can be equilibrium and my understanding of that the equilibrium that they’re referring to is the equilibrium between the air and the lungs and the blood, not necessarily that absorption and elimination are at equilibrium. 

Darryl Genis: Okay.  Now the person who’s .00, bolus-dosed going up, they’re not 2,100 to 1 when they’re 0 to 0, are they?   

Denise Lyons: I don’t know what their blood to breath ratio is. 

Darryl Genis: Well, if you have a breath test that’s zero and a blood test that’s zero, you don’t need to use the factor of 2,100 to 1 to explain the two as they relate to each other, do you? 

Denise Lyons: No.   

Darryl Genis: But if you get a measured alcohol level – let’s say you take a breath test here, and in forensic circles, it is well known and believed that during absorption the blood lags breath, but during elimination the breath lags blood, right?   

Denise Lyons: I’ve seen that in literature.   

Darryl Genis: Okay, in simple English, breath tests are gonna overstate readings during absorption and understate during elimination, right? 

Denise Lyons: That is a theory that I have seen in papers.  I don’t know.   

Darryl Genis: Okay, in the ratios that you’ve seen even in elimination phase range from 800 to 1 to 4,000 to 1, don’t they? 

Denise Lyons: I have not studied blood to breath ratios. 

Darryl Genis: Okay.  Well, just as a simple function of math, if a machine is built to automatically calculate something like a breath machine, by law in California requires under Title 17 that they all use the 2,100 conversion rate.   

If you get a reading of .08, the 2,100, let’s cut that in half.  That’s 1,050, which is still greater than 800.  If you cut the 21 in half you have to cut the .08 in half, so if a 1,050 to 1 and you blow in a machine and get an .08, your true blood alcohol level is .04, isn’t it?   

Denise Lyons: I don’t think that I can make an opinion as to calculations with the blood to breath ratio. 

Darryl Genis: Okay.  If you have 2,100 to 1 equals .08 and you divide this by 2, you get 1,050.  You’d have to divide this by 2 and you’d get .04.  Isn’t that just simple math?   

Denise Lyons: That is simple math, but I – like I said, I have not done any study and research on the 2,100 to 1 or blood to breath ratios. 

Darryl Genis: Okay.  Now if a person is an .04 at 8:42 and they’re an .07 at 9:42 then they’re absorbing, right?   

Denise Lyons: If a person is an .04 – 

Darryl Genis: At 8:42 and they’re an .07 at 9:42 then that person is absorbing, right?   

Denise Lyons: In the absence of them not drinking any other alcohol during that time, I think that that might be assumed, yes. 

Darryl Genis: Okay.   

Male: _____ _____. 

Darryl Genis: Wait.  No, no, no.  And if the person is an .04 at 8:42 and their blood alcohol level is going up so that they’re an .07 at 9:42, at 8:00, 42 minutes before they were .04, they would be something less than an .04, wouldn’t they?   

Denise Lyons: I’m sorry.  You’re throwing me with the .04.  Would you repeat that, please?   

Darryl Genis: Let’s do it this way.  If a person is an .07 at 9:42 and they’re an .04 at 8:42, at 8:00 they would have to be lower than an .04, wouldn’t they? 

Denise Lyons: Based on those numbers and where you place them on the curve, yes. 

Darryl Genis: Okay.  Now I know I’ve asked you this before, but I’m just gonna ask you it so we plan a nice place to stop _____ _____.  You can’t tell this jury that my client had a blood alcohol level of .08 or more at the time of driving, can you? 

Denise Lyons: I believe that based – it is my opinion that based on the assumption that I was given that I can.   

Darryl Genis: That you what? 

Denise Lyons: Based on the assumption I was given – on assumptions that I was given, I can.  Based on just the fact that there is a blood test at 9:42 with no other information, no, I can’t. 

Darryl Genis: Okay, and the breath preliminary test in this case doesn’t help you to get to a more solid conclusion, does it?   

Denise Lyons: No. 

Darryl Genis: And while you do have an opinion that all persons are under the influence of alcohol at levels of .08 and higher, since you can’t say that Mary was at or above that level, you also can’t say that she was under the influence and you certainly can’t rely on field sobriety tests or driving because you didn’t see any of those things, as opposed to the blood test, which you did see ’cause you actually analyzed it yourself.  Right?   

Denise Lyons: Based on personal knowledge, no, I can’t. 

Darryl Genis: Okay, so in conclusion as a scientist, if you were conducting a study that you wanted to come to a conclusion in order to make a recommendation that was for a very serious matter, you know, like whether or not to have an organ removed or something, you’d want to be 99 percent certain.   

I mean you can never be 100 percent certain, but you’d want to be as certain as is humanly possible as a scientist, wouldn’t you? 

Denise Lyons: Yes. 

Darryl Genis: Okay, and you wouldn’t want to be any less certain when deciding somebody’s fate on a criminal matter when the burden of proof is just short of absolute doubt, beyond a reasonable doubt, would you? 

Male: Objection, argumentative. 

Male: Sustained.   

Denise Lyons: The question – 

Darryl Genis: You don’t have to answer ’cause the objection was sustained. 

Denise Lyons: Oh, I’m sorry. 

Darryl Genis: Okay, so – well, thank you for answering my questions.  I have no further questions at this time. 

Male: Redirect?   

Male: Yes, sir.  If I can approach and get Exhibit No. 2 first of all.  Now does that mean _____ _____?   

Male: This one? 

Male: Yes.  I think that’s 2A.   

[Crosstalk] 

Denise Lyons: Oh, it’s right here.  I’m sorry.   

Male: Oh, is it up there? 

Denise Lyons: Yeah. 

Male: Okay. 

Denise Lyons: And I may have inadvertently changed the order.   

Male: Well, let me provide you, Ms. Lyons, with Exhibit No. 2.  There’s been some discussion about the blood result.  It’s already in evidence, but what result did you get when you tested the blood sample? 

Denise Lyons: It was a .08. 

Male: Now that’s to two decimal places, is that correct? 

Denise Lyons: Yes, it is. 

Male: In fact, when that sample was tested, was – were you actually able to come to a third decimal place? 

Denise Lyons: Yes. 

Male: And would that information be contained within Exhibit 2?   

Denise Lyons: It should be. 

Male: Can you flip through and find it?  

Darryl Genis: Your Honor, can we approach for a second? 

Male: Okay.   

Male: Ms. Lyons, my question was: Is it contained in People’s Exhibit 2? I think you said yes.  I don’t know if while we were at the bench you located it or not. 

Denise Lyons: I did not.   

Male: _____ _____. 

Denise Lyons: Okay.  Okay, the sample was tested twice.  The first replicate was .087 and the second was a .085.   

Male: And that is reported by your – or obviously not reported, recorded by you according to Title 17 to two decimal places.  Is that correct? 

Denise Lyons: We report to two decimal places. 

Male: And that’s where the .08 on what was admitted as People’s Exhibit 2A comes from. 

Denise Lyons: Correct.   

Male: But in reality, it was actually higher than that. 

Denise Lyons: The reported – the recorded values from the actual test were the .087 and the .085 and then according to Title 17, you truncate off the third digit and we would report out the .08.   

Male: And that’s a benefit to a defendant, isn’t it?   

Denise Lyons: I believe so, yes. 

Male: There’s been some talk, I think, or some questioning about a blood split.  What’s that term mean? 

Denise Lyons: That is anybody that has a – evidence submitted or a blood sample submitted has the right to request a split meaning a portion of that sample to be split away from the original so that they can send it to an independent lab for independent testing. 

Male: And they would obviously be taking the same sample that has already been collected and that you had previously tested.   

Denise Lyons: Correct. 

Male: So it would be using the same tube with the same preservatives, those kind – same tube. 

Denise Lyons: Not the same tube. 

Male: Well, it’s coming out of the same tube. 

Denise Lyons: Yes, coming out of the same tube.   

Male: And it’s put into a new tube. 

Denise Lyons: Correct.   

Male: A portion. 

Denise Lyons: Yes.   

[End of Audio]