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Vitiello v. State

Florida Court of Appeals, Fifth District

October 4, 2019



          Appeal from the Circuit Court for Orange County, John Marshall Kest, Judge.

          James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.

          Ashley Moody, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellee.

          ORFINGER, J.

         Krystyna 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, [1] estimated that her blood alcohol content ("BAC") exceeded the legal limit at the time of the crash. We find no error and affirm.


         On the 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.

         One of 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.

         After 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.

         Vitiello 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.[2]

         Before 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.[3] 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.

         Dr. 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 Vitiello's BAC.

         In 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, inadmissible.

         In 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.

         After 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[4] standard. At the parties' request, the trial court also considered the admissibility of the testimony under the Daubert[5] 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 and facts.

         At the following trial, along with Dr. Goldberger's testimony, [6] the 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.[7] ...

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