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Click here for the full text of this decision FACTS:A car accident between a pick-up truck and a car in Panola County critically injured a child in the car. The first person at the scene of the accident found Robert Blumenstetter at the wheel of the truck, smelling of alcohol and appearing intoxicated. The state trooper investigating the scene concluded that the truck had crossed the center lane and struck the car. He also concluded Blumenstetter’s intoxication was a factor in the accident. Blumenstetter was taken to a hospital, where blood was drawn. His blood alcohol concentration (BAC) level more than two hours after the accident was .20. Blumenstetter was charged with intoxicated assault. Pretrial, the trial court denied Blumenstetter’s motion to suppress the BAC evidence. At trial, the state’s expert, a forensic chemist, testified that in his opinion, Blumenstetter was legally intoxicated at the time of the accident. He said he could not conceive of a scenario whereby Blumenstetter would be below the legal level for intoxication at 5:30, when the accident occurred, and not at 7:30, when his blood was drawn. Blumenstetter’s attorney did not object to this “retrograde extrapolation” testimony. The expert stated that a person’s BAC level could fluctuate based on the person’s size, weight and metabolism, as well as whether he’d eaten, how much he’d had to drink and how quickly he drank it. He also acknowledged that a person’s BAC depended in part on whether the person was in the absorption phase, whether the person’s level had peaked, or whether the person was in the elimination phase, where the level would be dropping. Administering IVs could dilute the results, he also noted. Blumenstetter was convicted and sentenced to 10 years in prison. Blumenstetter appealed in 2003. The case was remanded to the point at which Blumenstetter was convicted and his sentence imposed. He filed a motion for new trial, in which he complained of ineffective assistance of counsel. His attorney said he did not challenge the expert’s testimony on retrograde extrapolation because he was concerned that if he brought up the witness’ lack of certification, the prosecution would the establish his certification, thus making him more credible in the eyes of the jury. The attorney also stated that he was unfamiliar with the Texas Court of Criminal Appeals’ ruling in Mata v. State, 46 S.W.3d 902 (Tex.Crim.App. 2001). HOLDING:Affirmed. The court concludes that even though Blumenstetter’s counsel was ineffective in not challenging the retrograde extrapolation testimony, the error did not prejudice Blumenstetter. Blumenstetter first complains that the trial court gave the jury an erroneous instruction on community supervision. The court agrees, finding that contrary to the standards set forth in Texas Code of Criminal Procedure Art. 42.12, �4(b), the charge erroneously provided that the jury was to recommend the period of community supervision, if it first decided community supervision was appropriate. However, because the jury did not recommend community supervision, it did not need to apply the erroneous instruction, and Blumenstetter was not harmed. Blumenstetter then raises several points related to his claim of ineffective assistance: 1. failure file a motion to suppress the blood test; 2. failure to object to the forensic chemist testifying on extrapolation; 3. failure to object to the forensic chemist testifying to a legal conclusion; 4. failure to object to the jury charge on punishment which, instructed the jury it was to assess the duration of any community supervision; and 5. failure object to the jury charge on punishment, which provided an incomplete instruction on parole. The attorney’s decision not to try to suppress the blood test was reasonable, the court finds, despite Blumenstetter’s argument that the sample taken before his arrest was in violation of the Fourth Amendment. The court notes that the seizure is reasonable when exigent circumstances exist, such as here. “First, exigent circumstances exist in cases such as these because alcohol in blood is quickly consumed and the evidence may be lost forever. . . . Second, the taking of blood by a medical laboratory technician in a hospital is a reasonable method of extraction. Finally, probable cause existed to arrest Blumenstetter, who, according to the first person at the scene, was the sole occupant of the Ford pickup truck and was behind the wheel.” The court agrees, however, that it was unreasonable trial strategy for the attorney not to object to the retrograde extrapolation testimony, and admitting that he was unfamiliar with the Mata case. Had he been familiar with the Mata case, he would have known that the expert’s testimony was unreliable and inadmissible. The court gives a detailed account of the Mata case, noting its finding that retrograde extrapolation can be reliable in a given case, but the expert must show an understanding of the difficulties associated with the theory. According to Mata, when evaluating the reliability of retrograde extrapolation, a trial court should consider: “(a) the length of time between the offense and the administration of the test(s); (b) the number of tests given and the interval between each; and (c) to what extent, if any, the individual characteristics of the defendant were known to the expert in providing his or her extrapolation.” Here, the expert did not explain the science behind the theory, nor did he demonstrate a familiarity with the difficulties associated with it. Further, the expert only testified to the one known test of Blumenstetter’s BAC, taken two hours after the offense, and he did not testify to one of Blumenstetter’s relevant characteristics. “We conclude that [the expert's] testimony on retrograde extrapolation was clearly inadmissible under Mata. To not object to the admission of prejudicial and arguably inadmissible evidence may be strategic; to not object to the admission of prejudicial and clearly inadmissible evidence has no strategic value.” For many of the same reasons expressed above, Blumenstetter’s attorney was also in error for not objecting to the expert’s testimony on a legal conclusion, that Blumenstetter was legally intoxicated at the time of the accident. Nonetheless, the court concludes that Blumenstetter was not prejudiced by this error because the expert’s testimony was cumulative of other evidence of Blumenstetter’s intoxication: the witness’ observations, the state trooper’s observations and the testimony of another witness who saw Blumenstetter swerve into the other lane, for instance. Plus, the test showing his BAC level of .20 was some evidence that Blumenstetter had been drinking. He, himself, testified that he had consumed two large vodka and orange juices shortly before the accident. OPINION:Ross, J.; Morriss, C.J., Ross and Carter, JJ.

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