Wednesday’s Testimony
By Misha Berman
Wednesday afternoon, July 20, in Department 10 was the trial for Defendant Rachel Clemente who is charged with driving while intoxicated, hit and run, and child endangerment, abuse and neglect. There was witness testimony from an officer from the City of Davis Police Department, and from DOJ Senior Criminologist Joseph Palecek.
The Davis police officer testified about how he witnessed Ms. Clemente exit her Motel 6 room and put the key in her car. He said that was when he communicated with her for the first time.
He said, “I had a conversation with Corporal Ramos that he wanted to perform a sobriety test.”
The witness then continued that once Officer Jeff Vignau looked over the video footage, and after Ms. Clemente was not willing to do a field sobriety test, he arrested Ms. Clemente for drunk driving.
The witness pointed out that these field tests are voluntary, after being asked whether they were voluntary or required. He then stated that after Ms. Clemente had the handcuffs on, she cried and said she would do the tests. The witness then performed the test on her.
“I have been involved in 30-60 DUIs,” said the testifying officer.
The jurors then had questions for the witness. The first question was whether Ms. Clemente had ever been arrested before for a DUI. The officer said no. The next question was asking the officer about his reasoning for going to the Motel 6.
“Dispatch advised that the same car that was seen earlier was located at Motel 6 and facing Chiles Road,” replied the officer.
The next witness, Senior Criminologist for the Department of Justice in Sacramento Joseph Palecek, was called to the witness stand. He was first asked about what he does as a criminologist.
“I am responsible for breath alcohol programs,” replied Mr. Palecek.
Deputy District Attorney Frits Van Der Hoek asked Palecek how many times he had been an expert witness in court for “blood alcohol breath instruments.” The witness claimed 120 times. When Mr. Van Der Hoek asked him how many times he had been an expert witness on the effects of alcohol, Palecek responded 140 times.
After Mr. Palecek’s credibility as an expert witness was approved by Judge Dan Maguire, the first question he was asked by the prosecution was for him to explain ethyl alcohol.
“Ethyl alcohol is the alcohol that is beers, wines and spirits. It’s a very water loving molecule. If you put it in the mouth and leave it there it would be absorbed in 15 minutes,” said Mr. Palecek.
Palecek then added that alcohol gets absorbed into our body through the blood, and our mouth “is a good source.” He then explained how alcohol is processed in our body. He explained how alcohol goes down to the stomach first and, because the stomach does not have a lot of blood in it, a lot of the alcohol won’t gets processed in the stomach. He then pointed out that after it goes into the stomach it goes into the small intestine, and because there is a lot of blood in the small intestine this is where a lot of the alcohol gets processed.
Mr. Van Der Hoek then asked if there are any factors that would affect how fast the body processes the alcohol. Mr. Palecek explained that there are conflicting studies where some say yes and others say no. He said that he would explain both the yes studies and the no studies.
“Some studies state that there is a slight difference on how fast the body absorbs the alcohol. Factors such as if you have eaten, what you are drinking like a beer vs. a spirit, and the other side says that there is no difference. I am on the fence about which side to take,” explained Palecek.
Van Der Hoek then asked if weight or gender is a factor on the speed alcohol is digested into the body. Mr. Palecek replied that since alcohol likes water, a person’s weight affects how fast alcohol is digested because people who are heavier have more water in their bodies.
“There is really no difference between the rate at which men and women absorb alcohol,” said Palacek.
Van Der Hoek then asked Palecek if there are ways of expelling alcohol from the body. Mr. Palecek responded that when people sweat the alcohol is being expelled from the body, but it isn’t a significant amount. Palecek added that urine is another insignificant way alcohol is expelled.
“The liver is the main way alcohol is eliminated. More habitual drinkers will have a higher elimination rate. Some studies say women eliminate faster than men, but other studies say there is no difference,” explained Palecek.
The witness then added that there are studies that show that some Asians and Native Americans have issues with processing alcohol due to a genetic mutation, and signs of this mutation are that after they drink their face turns red.
Van Der Hoek then asked about field sobriety tests. Palecek described how field sobriety tests work. First, he said, these tests are designed for officers to help them decide if they need to give suspected drunk drivers “chemical tests.”
“These tests are easier than operating a vehicle but it is seeing if a person is physically and mentally impaired,” stated Palecek.
The witness then explained how alcohol affects the body. He explained at what level of blood alcohol content a person is considered too impaired to drive.
“Alcohol is a central nervous system depressant. At low levels people experience a sense of euphoria and relaxation,” said Palecek.
He explained that, as people drink more, their eyes will become watery and red, and it will affect a person’s fine motor skills and balance. Palecek added that, if the level is high enough, coma and death will ensue.
Van Der Hoek then asked Palecek if someone’s vision is impaired by alcohol. Mr. Palecek said yes, and explained what blood alcohol content is considered too high to drive.
“Point zero eight blood alcohol content is too impaired to drive,” said Palecek.
Van Der Hoek then asked, since coffee is a stimulant, whether, if someone drank coffee, that would counter the affects of alcohol, which is a depressant.
“Nothing you can do to eliminate alcohol, only time and liver function will absorb alcohol. Coffee will not make you less impaired,” asserted Mr. Palecek.
Judge Maguire then said that Mr. Palecek will resume his testimony the following day at 9:00am in Department 10.
Thursday’s Witnesses and Closing Arguments
By Sarah Gregory
Defendant Rachel Clemente is charged with four counts that include driving under the influence, hit and run property damage, and abusing or endangering the health of a child.
The prosecutor presented more witnesses today. First, he finished the direct examination of the blood alcohol content expert.
The expert testified to the accuracy of the defendant’s breath test taken on May 29, 2015. The defendant was arrested that same day for a DUI.
The defendant had walked into a Valero gas station in Davis a little before 8:00 a.m. and decided to buy a 32 oz. Miller High Life for herself and a juice for her five-year-old granddaughter. After the defendant purchased the beer, she went out into the parking lot and proceeded to back her car straight into another parked vehicle.
Allegedly, without realizing the damage she had caused to the other vehicle, the defendant drove off with her five-year-old granddaughter in the front passenger seat.
Immediately afterwards, the owner of the damaged vehicle called 911.
A half an hour later, the defendant was found by police at the Motel 6 across the street. They questioned her, while observing that she appeared to be drunk. The officers proceeded to have the defendant perform a FST (Field Sobriety Test).
The most common of these is the walk-and-turn test, where the subject is directed to take nine steps, touching heel-to-toe, along a straight line. After taking the steps, the suspect must turn on one foot and return in the same manner in the opposite direction.
Upon determining that the defendant could not in fact walk a straight line, the officers administered a breathalyzer test. As part of the protocol in administering a breathalyzer test, officers must take two samples from the subject.
The defendant’s BAC (Blood Alcohol Content) was found to be 0.24% and 0.25%. This is three times the legal limit, which is 0.08%.
According to the expert, the reason for the difference between the two results is the strength of the subject’s breath in each test. As a standard, it should be considered that the higher of the two results is more accurate.
During the defense’s cross-examination, the expert stated that the average time it takes for a person to peak in their blood alcohol level after consuming alcohol is about 15 minutes. He also noted that hard alcohol allows an individual to peak earlier than if they had consumed alcohol with a lower concentration, such as beer.
Masking is another concept that the expert discussed with both parties. Masking is a person’s ability to adjust their behavior, to appear less inhibited by the alcohol. He also testified that an individual with a higher tolerance to alcohol is more likely to be able to hide the symptoms of alcohol consumption, such as an unsteady gait.
Next to testify for the prosecution was “MB,” the clerk who sold the defendant that 32 oz. bottle of beer at the Valero gas station. He had been working at the Valero station for two years at the time of the incident in May of 2015.
He testified that a part of his job is to sell alcohol to people. However, he must also recognize when a person is too drunk to buy alcohol. There are legal penalties if the Valero station sells alcohol to an individual that is already inebriated and that person is involved in a crime partly due to the alcohol that was sold.
MB stated that he utilizes certain factors to determine if a person is too drunk to purchase alcohol. Some examples are if the person is not walking normally, has bloodshot eyes, is unable to enunciate correctly, or needs help retrieving their alcohol of choice from the cooler. According to MB, if a person does not have any of these symptoms it is all right to sell alcohol to the individual.
The prosecutor played a security video of MB selling beer to the defendant right before the incident. He argued that the sales counter separates the customer and the clerk, to about two to three feet from each other. Therefore, it is possible that those few feet are just enough to make it so MB was unable to tell if the defendant had any of the symptoms he normally uses to determine if someone is drunk.
The prosecutor also attempted to argue that the defendant was leaning on the counter because she was drunk and unable to stand. MB noted that he remembered thinking those actions were a result of her sleepiness because it was a little before 8:00 a.m. in the morning.
When the defense questioned MB, he testified that the defendant had not displayed any usual symptoms of drunkenness and that she seemed to be happily interacting with her granddaughter in the store.
Next, Judge Maguire provided the jury with instructions on deliberation and they also heard from both parties in the closing arguments.
The prosecutor went over the facts of the case with the jury. The defendant was at the gas station, she was leaning on the counter because she was unable to stand upright and she bought a 32 oz. bottle of Miller High Life, which has a 4.6% alcohol concentration.
There was also an accident in the parking lot. The defendant backed up into a parked car, caused property damage and drove away.
The prosecutor showed a clip of security footage of the defendant driving away and pointed out that the five-year-old in the front passenger seat was not wearing a seat belt. He argued that this emphasizes the fact that the defendant was indeed drunk and that is the reason she is being charged with abusing or endangering the health of a child.
He reminded the jury that when the defendant was first questioned by police at the Motel 6 across from the Valero station about the hit and run, she had made a series of contradictory false statements that indicated she was guilty. Only a guilty person would panic and lie about what they had done. The defendant had told the police that she only drank beer an hour before she had driven.
He also discussed the results of the breath tests and referred to the expert witness’s testimony, where it was noted that an individual of the defendant’s size must drink about 80 oz. of beer in order to reach 0.25% BAC.
The defendant had had about an hour and 15 minutes since the collision to sober up and burn off some of the alcohol in her system, which would lower her BAC when she took the breath tests. Arguably, her BAC could have been much higher at the time of the collision. The prosecution was convinced the defendant had been drinking before she arrived at the gas station.
The defense’s closing statement was more focused on objectivity and less on the assuredness that the defendant is guilty. The defense reminded the jury of its role and admitted that all of the charges the defendant is facing are serious.
He argued that the prosecutor’s job is to prove the defendant is guilty beyond a reasonable doubt. The defense stated that the defendant was not drunk when she arrived at the gas station, but was when police arrived to speak with her at the Motel 6 across the street. This left the defendant with well over half an hour after driving away from the collision to return to the Motel 6 and consume a great deal of alcohol. He argued that this would have raised her BAC to the 0.25% that was reported.
The quality of the police investigation was taken into question as well. The defense stated that the officers never checked the defendant’s room or car to see where she had been drinking. They assumed that she was driving while drinking, as opposed to casually drinking in her room.
He admitted that the defendant made a mistake by not making her granddaughter wear a seat belt. However, he emphasized that is all it is, a mistake. The defense reminded the jury that they are not present to judge the defendant’s lifestyle choices, such as drinking alcohol early in the morning.
He argued that if there is even a reasonable doubt that the charges against the defendant are not fully proved, then she is not guilty.
The prosecutor had a chance to respond to the defense’s argument. He stated that the court so far has been giving the defendant the benefit of the doubt for the entire trial and she deserves no more.
He discussed the hit and run and argued that maybe the defendant did not know that she had damaged the other vehicle. However, she knew that she had bumped it and, even if there was a possibility that she had damaged the other vehicle, she should have gotten out of her car and assessed the potential damage.
He argued that, while the defense had a closed focus on the case, the jury must take into account all of the evidence. He assured the jury that there was only one reasonable conclusion, and that is that the defendant is guilty.
