FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Orange County, John Marshall Kest,
S. Purdy, Public Defender, and Susan A. Fagan, Assistant
Public Defender, Daytona Beach, for Appellant.
Moody, Attorney General, Tallahassee, and Kellie A. Nielan,
Assistant Attorney General, Daytona Beach, for Appellee.
Vitiello appeals her conviction of four counts of boating
under the influence with serious bodily injury, after a boat
she was piloting crashed. Vitiello's primary challenge on
appeal concerns the admissibility of the testimony of the
State's expert witness who, using retrograde
extrapolation,  estimated that her blood alcohol content
("BAC") exceeded the legal limit at the time of the
crash. We find no error and affirm.
evening of April 4, 2016, Vitiello's eighteen-year-old
niece was hosting a party at her father's lakefront home
in Maitland, Florida. Vitiello and her niece spent the day
preparing for the party. Around 6:30 p.m., the guests
arrived. As part of the festivities, the partygoers ate and
drank alcohol as they watched the televised NCAA Men's
Basketball National Championship game. After the game
concluded, around midnight, the partygoers took a boat out
onto the lake behind the house. Vitiello drove. After only a
few minutes on the lake, Vitiello crashed the boat into a
seawall, injuring her niece and several other passengers.
the passengers called 911. Maitland police officers arrived
at the scene and found the boat atop the seawall surrounding
the pool in the backyard, three or four feet above the
lake's surface. Three people lay injured. Next to the
boat, one officer saw Vitiello holding an injured passenger
and pressing a towel against a wound on the back of his head.
That same officer also observed Vitiello praying and slurring
her words. About this time, paramedics arrived and
transported the injured individuals to the hospital.
the injured individuals departed, the officer approached
Vitiello, who confirmed that she had been piloting the boat.
He smelled the odor of alcohol coming from Vitiello and saw
that her eyes were bloodshot. Suspecting she was intoxicated,
the officer had Vitiello perform several field sobriety
tests. Vitiello performed poorly. She lost her balance
several times, failed to complete the walk-and-turn test as
instructed, and failed to walk along a straight line. Based
on her overall performance during the field sobriety tests
and his previous observations, the officer concluded that
Vitiello was impaired by alcohol and arrested her for boating
under the influence. Vitiello was then transported to the
Orange County DUI Center, where she refused to submit to an
alcohol breath test. Eventually, law enforcement obtained a
warrant to draw her blood. At 6:50 a.m., Vitiello's blood
was drawn and registered a BAC of .027.
was charged with four counts of boating under the influence
with serious bodily injury. The information alleged that she
was under the influence of alcoholic beverages to the extent
that her normal faculties were impaired or that she had a
blood-alcohol level of 0.08 or more grams of alcohol per 100
milliliters of blood.
trial, the State notified Vitiello that it intended to call
toxicologist Dr. Bruce Goldberger to testify as an expert
witness regarding Vitiello's BAC at the time of the
accident. Vitiello moved to strike Dr. Goldberger's
testimony. At the hearing on the motion, Dr. Goldberger
testified that by using retrograde extrapolation, he
estimated Vitiello's BAC at the time of the accident was
approximately .12. He came to this figure by multiplying the
average rate at which alcohol is eliminated from the body
(.015 mg/mL/hour) by six and a half (the time between the
accident and the blood test) and adding that product to
Vitiello's known BAC of .027. He also considered her
performance of the field sobriety tests and the police
observations of her behavior, all of which he believed
confirmed his calculations.
Goldberger explained that he made two assumptions when
performing the calculations. First, he assumed Vitiello
eliminated alcohol at .015mg/mL/h, although he acknowledged
that the rate can be higher or lower depending on factors
such as a person's weight or their pattern of alcohol
consumption. Second, he assumed Vitiello's blood alcohol
level had peaked, meaning her body had finished absorbing
alcohol at the time of the crash. Dr. Goldberger conceded
that, similar to the elimination rate, many variables could
affect when a person has finished absorbing alcohol,
including the time of the person's last drink, how much
they drank, and when they last ate. Dr. Goldberger admitted
that he did not know the time of Vitiello's last meal or
last drink. However, he did not perform his calculations in a
vacuum-he also considered the reports of law enforcement,
including their descriptions of Vitiello's performance on
the field sobriety tests, and the depositions of the other
passengers, all of which confirmed his estimation of
challenging Dr. Goldberger's testimony, Vitiello did not
attack the science or reliability of retrograde extrapolation
as a general practice. Instead, she attacked the factual
basis for his testimony. Specifically, she argued that Dr.
Goldberger lacked the information necessary to assume her BAC
had peaked and was declining at the time of the accident.
This lack of information, she argued, made Dr.
Goldberger's opinion speculative, and therefore,
support of her argument, Vitiello presented the testimony of
Dr. Julia Pearson, the chief forensic toxicologist for the
Hillsborough County Medical Examiner's Office. Dr.
Pearson testified that the State had asked her to perform a
retrograde extrapolation in this case before asking Dr.
Goldberger to do the same. Dr. Pearson declined to perform
the calculation because her lab and the Florida Department of
Law Enforcement will not perform an extrapolation on any
sample under .03. While Dr. Pearson had performed
extrapolations on samples as low as .03, in those cases, a
second blood sample taken two to three hours earlier was also
available, which helped her establish the elimination rate
and determine that the person's BAC was declining. In
addition, Dr. Pearson said the six-and-a-half-hour lapse
between the accident and the blood test was much longer than
usual, making any calculation much less reliable. Finally,
Dr. Pearson noted that she had no information about what
Vitiello drank that evening. She recalled that the police
report indicated that the crash occurred less than five
minutes after everyone boarded the boat. But no one could
state what Vitiello had been drinking, when she had been
drinking, or when she had stopped drinking. According to Dr.
Pearson, this lack of information on Vitiello's drinking
history was critical. Without it, she could not conclude, or
even assume, Vitiello was in a post-absorptive state (meaning
her BAC was declining) at the time of the accident, and
without assuming post-absorption, a retrograde extrapolation
could not be performed.
considering the testimony of both experts, the trial court
denied Vitiello's motion. The court found that Dr.
Goldberger's methods were generally accepted by the
scientific community and were admissible under the
Frye standard. At the parties' request, the
trial court also considered the admissibility of the
testimony under the Daubert standard. The court noted
that "[w]hile the lack of information regarding
[Vitiello's] drinking history that day is concerning,
these are facts for the jury to consider." It ruled Dr.
Goldberger's testimony was also admissible under the
Daubert standard because it was the product of
reliable scientific principles and based on sufficient data
following trial, along with Dr. Goldberger's testimony,
State presented physical evidence, testimony of the officers
who administered the field sobriety tests at the accident
scene, and the testimony of other people who were onboard the
boat when it crashed to prove Vitiello was impaired by
alcohol at the time of the accident. ...