State v. Jensen, 482 N.W.2d 238 (Minn. Ct. App. 1992). · Go Syfert
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State v. Jensen, 482 N.W.2d 238 (Minn. Ct. App. 1992). Cases Citing This Book View Copy Cite
19 citation events (12 in the last 25 years) across 6 distinct courts.
Strongest positive: Burris v. Kansas Dept. of Revenue (kanctapp, 2021-07-02)
Top citers, strongest first. 13 distinct citers.
discussed Cited as authority (rule) Burris v. Kansas Dept. of Revenue
Kan. Ct. App. · 2021 · confidence medium
App. 1992) (retrograde extrapolation of breath-alcohol content 15 hours from driving admissible); State v. Jensen, 482 N.W.2d 238, 240 (Minn. App. 1992) (retrograde extrapolation admissible to show blood-alcohol concentration over 11 hours earlier).
discussed Cited as authority (rule) People v. Beck
Ill. App. Ct. · 2018 · confidence medium
Montgomery v. Miller, 321 P.3d 454, 469 (Ariz. Ct. App. 2014) (holding retrograde extrapolation was “generally considered to be a reliable scientific discipline”); Commonwealth v. Senior, 744 N.E.2d 614, 620-21 (Mass. 2001) (holding evidence of retrograde extrapolation was sufficiently reliable); State v. Jensen, 482 N.W.2d 238, 239 (Minn. Ct. App. 1992) (holding that the principles underlying retrograde - 21 - extrapolation were not emerging or novel and that expert testimony on the subject was admissible). ¶ 111 We note defendant has not directed us to any case excluding retrograde extr…
discussed Cited as authority (rule) State v. Dixon
Minn. Ct. App. · 2012 · confidence medium
Minnesota courts have held that experts in various fields may offer opinion testimony “to a reasonable scientific certainty,” implicitly holding that the phrase does not imply “to the exclusion of all others.” See State v. Bloom, 516 N.W.2d 159, 168 (Minn.1994) (allowing a properly qualified expert to express an opinion “to a reasonable scientific certainty” that the appellant is the source of the DNA while not allowing the expert to say that a particular profile is unique); see also State v. Riley, 568 N.W.2d 518, 526 (Minn.1997) (concluding that it was not error for the district …
discussed Cited as authority (rule) Ellingson v. Commissioner of Public Safety
Minn. Ct. App. · 2011 · signal: cf. · confidence medium
Cf State v. Jensen, 482 N.W.2d 238, 239-40 (Minn.App.1992) (holding that expert testimony relying on retrograde extrapolation to establish alcohol concentration of defendant’s blood at time of accident was admissible but noting expert testimony that retrograde extrapolation is “unreliable when an expert has insufficient information about variables”), review denied (Minn. May 15,1992).
discussed Cited as authority (rule) State v. Edstrom
Minn. Ct. App. · 2010 · confidence medium
“Expert testimony generally is admissible if: (1) it assists the trier of fact; (2) it has a reasonable basis; (3) it is relevant; and (4) its probative value outweighs its potential for unfair prejudice.” State v. Jensen, 482 N.W.2d 238, 239 (Minn.App.1992), review denied (Minn. May 15, 1992); see Minn. R.
cited Cited as authority (rule) State v. Morales-Mulato
Minn. Ct. App. · 2008 · confidence medium
State v. Jensen, 482 N.W.2d 238, 239 (Minn.App.1992), review denied (Minn. May 15,1992). a.
discussed Cited as authority (rule) Commonwealth v. Senior
Mass. · 2001 · confidence medium
App. 3d 790, 797 (1991) (while not required, retrograde extrapolation admissible); State v. Jensen, 482 N.W.2d 238, 240 (Minn. Ct. App. 1992); People v. MacDonald, 227 A.D.2d 672, 674-675 (N.Y. 1996); State v. Catoe, 78 N.C.
discussed Cited as authority (rule) State v. Wolf (2×) also: Cited "see"
Minn. Ct. App. · 1999 · confidence medium
State v. Jensen, 482 N.W.2d 238, 239 (Minn.App.1992), review denied (Minn. May 15, 1992).
discussed Cited as authority (rule) In Re the Welfare of K.A.S.
Minn. Ct. App. · 1998 · confidence medium
Expert testimony is generally admissible if: “(1) it assists the trier of fact, (2) it has a reasonable basis, (3) it is relevant, and (4) its probative value outweighs its potential for prejudice.” State v. Jensen, 482 N.W.2d 238, 239 (Minn.App.1992), review denied (Minn. May 15, 1992).
discussed Cited as authority (rule) Hotchkiss v. Commissioner of Public Safety (2×) also: Cited "see"
Minn. Ct. App. · 1996 · confidence medium
State v. Jensen, 482 N.W.2d 238, 239-40 (Minn.App.1992), review denied (Minn. May 15, 1992).
discussed Cited "see" State of Minnesota v. Michael James Berry
Minn. Ct. App. · 2015 · signal: see · confidence high
See State v. Jensen, 482 N.W.2d 238, 239-40 (Minn. App. 1992) (upholding admission of 8 expert testimony using retrograde extrapolation to determine alcohol concentration), review denied (Minn. May 15, 1992).
discussed Cited "see" State v. Wolf (2×)
Minn. · 2000 · signal: see · confidence high
See generally State v. Jensen, 482 N.W.2d 238, 239 (Minn.App.1992), rev. denied (Minn. May 15, 1992).
discussed Cited "see, e.g." State of Minnesota v. Christopher Steven Pettinelli
Minn. Ct. App. · 2014 · signal: see also · confidence low
Evid. 702; see also State v. Jensen, 482 N.W.2d 238 , 239–40 (Minn. App. 1992) (affirming the admission of expert testimony on retrograde extrapolation and stating that the Frye-Mack and Dille tests commonly used to examine the admissibility of scientific evidence do not apply to retrograde extrapolation, which is not emerging or novel and is a mathematical formula rather than a chemical or scientific test), review denied (Minn. May 15, 1992).
STATE of Minnesota, Respondent,
v.
David Burnell JENSEN, Appellant
C7-91-1139.
Court of Appeals of Minnesota.
Mar 10, 1992.
482 N.W.2d 238
Hubert H. Humphrey, III, Atty. Gen., Tom Foley, Ramsey County Atty., Steven C. DeCoster, Asst. County Atty., St. Paul, for respondent., Philip G. Villaume, Philip G. Villaume & Associates, Bloomington, for appellant.
Forsberg, Klaphake, Davies.
Cited by 15 opinions  |  Published

OPINION

DAVIES, Judge.

The trial court denied appellant David Jensen’s motion to suppress expert testimony as to blood alcohol that relied on retrograde extrapolation. The court convicted Jensen of criminal vehicular homicide. Jensen appeals, arguing that retrograde extrapolation is unreliable because it relies on unpredictable variables. We affirm.

FACTS

The parties stipulated to the following[*239] facts. [1] Jensen is a 21-year-old male who weighs 190 pounds. He and a friend left work at 5:00 p.m. and went to a bar. Jensen ate lightly and drank beer. After about an hour, they went to a second bar. Jensen told police that he left the second bar between 9:00 and 10:00 p.m. and that he did not have anything to drink after leaving this bar. Jensen’s friend did not see him leave but thought Jensen left between 10:00 and 10:30 p.m.

At 10:53 p.m. Jensen allegedly hit and killed Joseph Amyotte who was walking along the road with two friends. Police were unable to locate Jensen until eleven and a half hours had passed after the fatal accident. Blood tests taken at that time showed a .07 alcohol concentration. The state charged Jensen under Minn.Stat. § 609.21, subd. 1(3) (1990) (causing death by operating a motor vehicle while having an alcohol concentration of .10 or more).

At a pretrial motion hearing, Anne R. Manly and Thomas R. Burr described retrograde extrapolation as the process of determining a person’s alcohol concentration at a time prior to testing. Using retrograde extrapolation, Manly estimated that Jensen had between a .181 and a .2446 alcohol concentration at the time of the accident. Burr calculated Jensen’s alcohol concentration as between .19 and .31. Both experts testified that the scientific community generally accepts the basic principles of retrograde extrapolation, but that retrograde extrapolation is unreliable when an expert has insufficient information about variables.

ISSUE

Did the trial court abuse its discretion by admitting expert testimony that relies on retrograde extrapolation?

ANALYSIS

It is an issue of first impression whether expert testimony that relies on retrograde extrapolation is admissible.

We will not reverse the admission of expert testimony unless the trial court abused its discretion. May v. Strecker, 453 N.W.2d 549, 554 (Minn.App.1990), pet. for rev. denied (Minn. June 15, 1990). Expert testimony generally is admissible if: (1) it assists the trier of fact, (2) it has a reasonable basis, (3) it is relevant, and (4) its probative value outweighs its potential for unfair prejudice. State v. Schwartz, 447 N.W.2d 422, 424 (Minn.1989). A reasonable basis exists where an expert’s opinion is probably true; mathematical or absolute certainty is not required. See Block v. Target Stores, Inc., 458 N.W.2d 705, 710-11 (Minn.App.1990), pet. for rev. denied (Sept. 28, 1990).

Two tests are commonly used to examine the admissibility of scientific evidence. The Frye-Mack test is the traditional test for determining the admissibility of emerging scientific techniques. Schwartz, 447 N.W.2d at 424. It requires that “experts in the field generally agree that the evidence is reliable.” Id. The Dille test requires that a “proponent of a chemical or scientific test * * * establish that the test itself is reliable” and that it was administered in such a way as to ensure reliability. State v. Dille, 258 N.W.2d 565, 567 (Minn.1977).

The Frye-Mack test does not apply here because the principles underlying retrograde extrapolation are not emerging or novel. See Schwartz, 447 N.W.2d at 424. Nor does the Dille test apply because retrograde extrapolation is not a chemical or scientific test, but rather a mathematical formula. See Dille, 258 N.W.2d at 567.

Jensen argues retrograde extrapolation is necessarily based on unreliable faets and the trial court therefore abused its discretion by admitting the experts’ testimony. We disagree.

Manly and Burr testified that retrograde extrapolation involves multiplying the alcohol elimination rate by the number of hours between the incident and testing, adding that to the test reading, and then subtracting any alcohol unabsorbed at the time of the accident. While the experts admitted[*240] that an individual’s specific alcohol absorption and elimination rates may vary widely, the state need not prove a defendant’s exact alcohol concentration. The state need only prove that Jensen’s alcohol concentration was .10 or more. Minn.Stat. § 609.21, subd. 1(3); see also Commonwealth v. Britcher, 386 Pa.Super. 515, 531, 563 A.2d 502, 509 (Pa.Super 1989) (precise alcohol concentration not required but only evidence that the alcohol concentration at least .10), aff'd per curiam, 527 Pa. 411, 412, 592 A.2d 686, 687 (1991).

Manly and Burr had information about Jensen’s height, weight, gender, amount and type of food eaten, the type of alcohol consumed, when he drank his last beer, the time between the accident and testing, and that he did not consume any alcohol after the accident. Neither expert based his or her opinion on Jensen’s specific elimination rate, but rather each based it on a range of probable elimination and absorption rates. Both experts explained that, absent metabolic pathology or steroid use, most elimination rates fall within a range of .01 to .02 grams per hour.

Burr assumed that Jensen had nothing to drink after 10:15 p.m., that eleven and a half hours passed between the accident and the test, and that the test revealed a .07 alcohol concentration. Using a .01 and a .02 elimination rate, the extremes of probability, he calculated Jensen’s alcohol concentration to be between .19 and .31. Burr noted that Jensen’s food consumption would only slightly lower these figures. [2]

Manly applied the average elimination rate of .015 per hour and estimated that Jensen had a .2446 alcohol concentration at the time of the accident. Despite the fact that Jensen told police he had stopped drinking about an hour to two hours before the accident, Manly assumed that Jensen consumed three beers a half hour before the accident and that these beers were not absorbed into the blood stream at the time of the accident. She subtracted these unabsorbed beers and estimated Jensen’s alcohol concentration to be between .181 and .2446. See id. (admission of retrograde testimony upheld where assumptions favorable to the defendant eliminated uncertain variables).

Both experts testified that based on these calculations and assumptions they could conclude with a reasonable degree of scientific certainty that Jensen’s alcohol concentration at the time of the accident fell within their estimated ranges. While it is possible that Jensen’s alcohol concentration fell outside this range, we cannot say the trial court abused its discretion in determining that Manly’s and Burr’s estimates were probably correct and therefore had a reasonable basis. Nor did the trial court abuse its discretion in determining that the experts’ testimony assisted the trier of fact, was relevant, and had probative value that outweighed any potential for unfair prejudice.

The record contains sufficient evidence to support Jensen’s conviction. We specifically note that Manly’s and Burr’s lowest estimates (.181 and .19) significantly exceed the .10 alcohol concentration required for a violation at the time of the accident.

DECISION

The trial court did not abuse its discretion by admitting Manly’s and Burr’s retrograde extrapolation.

Affirmed.

1

. To obtain appellate review, Jensen pleaded not guilty, waived a jury trial, and stipulated to the state’s case pursuant to State v. Lothenbach, 296 N.W.2d 854, 857 (Minn.1980).

2

. Variables affecting absorption and elimination rates would most likely go to the weight, rather than admissibility of retrograde extrapolation testimony. See Cueller v. Hout, 168 Ill.App.3d 416, 421-23, 118 Ill.Dec. 867, 870-71, 522 N.E.2d 322, 325-26 (1988), pet. for rev. denied 122 Ill.2d 572, 125 Ill.Dec. 214, 530 N.E.2d 242 (1988).