Curtis Valentine, while driving at a high speed, failed to maintain control of his vehicle on a sharp curve. Valentine’s vehicle left the road and crashed into a tree. His front-seat passenger died.
Police officers who investigated the crash reported that Valentine was “acting crazy,” “irate, walking around,” and “constantly yelling.” Connie Dolan, an officer of the sheriff’s department who was described as an accident reconstruction expert, observed no skid marks. She smelled the odor of marijuana in the vehicle.
Dolan requested a warrant to obtain a sample of Valentine’s blood. After his blood was drawn at a hospital, Valentine was told that his passenger had died. Valentine “went ballistic” and shoved Dolan.
A few days later, Dolan interviewed Valentine in his home. Valentine said that he smoked marijuana the night before and the morning of the crash. He also said that he had taken Xanax that was prescribed to his mother. He admitted that he had taken his eyes off the road.
Prosecution’s Expert Testimony
A toxicologist at the Mississippi Crime Lab. Alyssa Bailey, testified that Valentine’s blood had tested positive for THC, Topamax (an anti-seizure medication), and Xanax. Bailey claimed that Valentine was under the influence of all three drugs.
Bailey testified that Xanax and Topamax are central nervous system depressants that can impair reaction times. She testified that those drugs can also affect judgment, motor function, and coordination. She also testified that THC can impair reaction time. She concluded that Valentine had smoked marijuana “fairly recently.”
Defense Expert Testimony
Dr. James O’Donnell, an expert in pharmacology, testified for the defense. Dr. O’Donnell testified that the trace amount of THC in Valentine’s blood was insufficient to have any clinical effect.
The lab reports contained no measurement of the other two drugs, making it impossible to say that they had an effect on Valentine. Based on the reports and on his observations of Valentine on body cam recordings, O’Donnell expressed the opinion that Valentine was not under the influence of any drug.
Sufficiency of Evidence
A jury found Valentine guilty of “aggravated DUI causing death.” In Mississippi, driving under the influence means driving while the ability to control a vehicle is lessened due to a state of intoxication.
On appeal, Valentine argued that the prosecution presented no evidence that he was under the influence. The state supreme court disagreed and affirmed the conviction.
Valentine maintained that the accident occurred because he was speeding. Mississippi precedent establishes that speeding is not evidence of being under the influence of an intoxicant.
The state supreme court noted that Valentine wasn’t just speeding but was driving at 70 to 90 mph when he approached a curve that was controlled by a 20-mph speed limit. The court seemed to think that “speeding really fast” is evidence of intoxication even if a lesser speeding offense is not. No expert testimony suggested that driving at any particular speed is a sign of intoxication.
The accident reconstruction expert testified that Valentine should have seen the curve and the speed limit sign. Drivers are frequently involved in accidents that they should have avoided. That fact does not establish their intoxication.
The accident reconstruction expert also testified that Valentine was having a “rage episode” at the scene and later when he was in the hospital. Accident reconstruction is based on principles of engineering, not psychology. Someone who was just involved in an accident and whose lover had just died might well respond to tragedy with rage. Hysterical behavior after a crash is not evidence of intoxication before a crash. The reconstruction expert’s testimony falls fall short of proof of intoxication.
Toxicologist’s Unsupported Testimony
The court was satisfied that intoxication was established by the toxicologist’s testimony. Yet the toxicologist had no scientific basis for her opinion. No studies establish a level of THC in blood that is consistent with intoxication. In fact, the National Institute of Justice recently reported that “there is little evidence correlating a specific THC level with impaired driving.”
Xanax can certainly affect driving skills, but the defense expert testified that the lab results did not establish the amount of Xanax that was present in Valentine’s blood. That testimony was apparently uncontradicted. The scientific evidence established only that Valentine used drugs at some point. It did not establish that he was under the influence of those drugs when he was driving.
As the dissent noted, Bailey did not testify about the amount of Xanax that is needed to have an impact on a driver’s ability to drive safely. Nor did she testify that the amount of Xanax in Valentine’s blood was sufficient to impair the ability to control a vehicle. Rather, she gave conclusory but unsupported testimony that Valentine was under the influence. The dissent concluded that Bailey’s testimony did not satisfy Mississippi’s legal standard for DUI “because Bailey could not and did not say whether the drugs had lessened Valentine’s normal ability for clarity and control.”
Proposed Jury Instruction
Bailey should never have been allowed to testify that Valentine was “under the influence” because she had no scientific data to form that expert opinion. In fact, she testified that, in her expert opinion, having any intoxicating substance in a driver’s blood means that the driver is under the influence of that substance.
Bailey’s testimony was outrageous. There is no scientific basis for the view that having a measurable amount of a drug in a driver’s blood causes a driver to be under the influence of that drug. It is for that reason that some states have enacted laws making it unlawful to operate a vehicle with any detectable amount of an unlawful drug in the driver’s blood. Those laws save the prosecution the trouble of proving that the drug made any difference in the driver’s ability to drive safely. Mississippi has no such law.
To counter Bailey’s testimony, the defense asked the court to instruct the jury that that the mere consumption of a drug is insufficient to prove that a criminal defendant was driving “under the influence” of an intoxicant. The trial judge instead gave the standard instruction that the state was required to the state to prove that the defendant was “driving in a state of intoxication that lessens a person’s normal ability for clarity and control.”
Since “under the influence” means a lessening of the normal ability to control a vehicle, Bailey’s testimony allowed the jury to conclude that the mere consumption of drugs lessens the ability to control a vehicle. The standard instruction did nothing to counter the prejudicial impact of Bailey’s blatantly false testimony.
As the dissent noted, “Valentine’s proposed jury instruction was an accurate statement of the applicable Mississippi law and was needed not only to inform the jury of all the elements of the offense but also to provide the jury a correct statement of Mississippi law on the element of driving under the influence, which had been stated incorrectly by the State’s toxicology witness.” In its eagerness to uphold a conviction, the majority was unmoved by the dissent’s reasoned analysis.
It isn’t clear whether Valentine’s lawyer moved to exclude the toxicologist’s testimony on the ground that it failed to satisfy the Daubert standard. It seems likely that the testimony blindsided the lawyer at trial.
Valentine’s lawyer objected to the toxicologist’s unfounded testimony when it was offered on the ground that it misstated the law. He offered his own expert’s testimony to counter the notion that unmeasured quantities of drugs prove impairment of the ability to control a vehicle. He also proffered a jury instruction that would have corrected the toxicologist’s misstatement of the law. Valentine was nevertheless convicted and his conviction was inexplicably upheld on appeal.
Mississippi purports to follow the Daubert standard. Bailey’s testimony was unsupported by a reasonable scientific methodology because no scientific literature establishes that the presence of any amount of Xanax or TCH in a person’s drug affects the ability to control a vehicle. Bailey appears to have given that testimony to help the prosecution obtain a conviction, not because the testimony is grounded in science. Sadly, some court decisions all but ignore the Daubert standard in criminal cases and allow experts to favor the prosecution with slanted testimony. The Mississippi Supreme Court’s decision is an unfortunate example of such a case.