Tardy Expert Testimony Not Error, Nor Harmless, In DUI Trial

US v. Smith: Smith was the driver of a car that rolled and crashed into a wall on the Baltimore-Washington Parkway.  A passenger was killed and Smith showed signs of intoxication before and after the crash.  Nearly three hours after the crash, Smith was given a blood test that showed a blood alcohol content of 0.09.  She was charged with misdemeanor manslaughter, with the underlying offense being operation of a motor vehicle with a blood alcohol content above 0.08.  At trial, a Government expert witness testified not just to the alcohol content of Smith's blood as tested, but about how human bodies both absorb and eliminate alcohol from their system, pegging the rate of elimination for women at 0.017 per hour.  Smith was convicted after a jury trial.

On appeal, Smith challenged her conviction on several grounds, all of which the Fourth Circuit rejected.  First, she argued that the Government's expert should not have been allowed to testify about generic alcohol absorption/elimination rates because it was beyond the scope of the pretrial notice of the subject of the expert's testimony.  The court disagreed, concluding that "although full disclosure by the government would have been more in keeping with the spirit of Rule 16," the testimony at issue was general background information and not tied directly to an expert opinion about Smith.  At any rate, if there was any error, it was harmless.  Second, Smith argued that the evidence was not sufficient to prove she had a blood alcohol level of at least 0.08 at the time of the crash (as opposed to several hours afterward).  The court disagreed, concluding that there was enough evidence to conclude that she violated the statute, including that the expert's testimony about absorption/elimination rates made it highly unlikely that her blood alcohol level was below 0.09 before the accident.  Finally, the court rejected her argument that the district court erred by refusing to instruct the jury that the blood test result, standing alone, was insufficient evidence to convict her.