By Zachary Zolmer
The afternoon resumption of a DUI trial disputed whether or not the defendant was actually driving when intoxicated.
At approximately 3 a.m. on January 18, 2019, West Sacramento Police Officer Ken Fellows responded to reports of a man unresponsive in his car. In the parking lot of Denny’s restaurant on Harbor Boulevard, first responders had since woken up Robert Aldana, whom Fellows initially placed under arrest for public intoxication. But after a search of the defendant’s white Honda uncovered four sealed, 50 ml Fireball bottles—one “miniature” under the driver’s seat, three in the glovebox—and a search of Aldana found two in his jacket, Fellows’ questioning took on a new purpose.
Per Fellows’ testimony, Aldana said he’d driven to Denny’s from the Kick’n Mule, a sports bar three minutes north, where he’d had a cocktail. Asked how many of the Fireball miniatures he’d consumed, Aldana answered four, Fellows said.
In a series of body cam videos that recorded field sobriety tests, Aldana exhibited behavior typical of people under the influence of alcohol, Fellows stated. Most notably, in a Horizontal Gaze Nystagmus test—which has a subject’s eyes track the tip of a pen in left-to-right, up-and-down, forward-and-back, and circular motions—Fellows observed Aldana’s eyes jerked pronouncedly when the pen crossed a 45-degree angle, a sign of intoxication. In a walk and turn test consisting of nine heel-to-toe steps, a pivot-turn left, and nine steps back to where the subject started, Aldana turned to the right, 
unlike Fellows’ instruction. And a one-leg stand test, meant to test a subject’s balance over 10 seconds, saw Aldana drop his right foot after just one second, in each of three attempts.
Combined with Aldana’s two breathalyzer test samples—one BAC of .23 recorded at 4:16 a.m. and another of .22 at 4:18 a.m.—Fellows arrested Aldana for DUI.
Yet, in cross-examination, Fellows acknowledged that he never saw Aldana drive his vehicle. He confirmed that homeless individuals sleep in Denny’s lot often, and recalled Aldana said he was doing so because it was a safe place. By the amount of stuff in his car, and by his own admission, Aldana was living out of his car, Fellows said. He couldn’t locate the four Fireballs Aldana had admitted to drinking, and was unable to establish what time Aldana arrived at the Denny’s.
In a redirect, Fellows clarified that Aldana said he’d consumed the four bottles elsewhere, then had driven to the Denny’s.
The People then called two witnesses as experts.
Officer Jack Hutton, who oversees the accuracy and implementation of breath test equipment for the West Sacramento Police Department, testified to the accuracy of the breathalyzer used by Officer Fellows on the early morning of January 18. With the aid of an exhibited form, Hutton showed that on Jan. 16, Fellows’ Dräger 7510 returned a BAC of .104 on a dry gas solution of .100—within the required .01 variance. Combined with tests after Jan. 18 that also returned accurate values, Hutton believed the device was working properly that morning.
And expert Kimberly Sand, a Senior Criminalist for the Department of Justice’s Bureau of Forensic Services, testified to the mental and physical effects of alcohol consumption. Sand defined a “divided attention task” in terms of field sobriety tests, where a subject is required to process information from two or more independent sources. Because alcohol impairs this ability, and the operation of a motor vehicle comprises a very complex divided attention task, a .22 or .23 BAC would render a person unsafe to properly operate a motor vehicle, Sand stated. She calculated that, for a male weighing approximately 226 pounds, 14-16 drinks would return such a BAC.
Additionally, Sand performed a “retrograde extrapolation” to approximate Aldana’s BAC near the time of his arrest. Given the respective .22 and .23 BAC values taken at 4:16 and 4:18 a.m., and assuming a standard 80 percent alcohol absorption rate at five to 15 minutes past last consumption, at 2:50 a.m. Aldana’s BAC range was between .235 and .257, Sand calculated.
In cross-examination, Sand allowed that short-term memory loss, confusion, and misunderstanding directions are consistent with increased alcohol consumption; she confirmed that a .22 or .23 BAC renders an individual extremely impaired. She clarified that she wasn’t at the scene, and was also unaware of when Aldana had arrived at the Denny’s. She agreed that breath tests can’t determine when or if someone drove a car. Provided a hypothetical that one could consume four shots quickly and then drive for three minutes—at which point, per the 80 percent absorption rate after five to 15 minutes, the alcohol would not be fully absorbed—Sand concurred.
In a brief redirect, Sand said she wasn’t aware that alcohol impairment caused anyone to lie. In recross, she agreed that in judging whether one was safe to drive, it matters whether or not they drank before or after they drove.
The trial will resume at 9 a.m. tomorrow, Thursday, July 18.
