There is no bright line test for the admission of alcohol in a civil case
Alcohol is one of the most prejudicial pieces of evidence that can be inserted into any matter. If the Plaintiff finds evidence that the defendant has alcohol in his or her system the Plaintiff demands it be admitted. The counter is true if the Defendant finds the Plaintiff may have been under the influence of alcohol; it shows contributory fault.
The truth is, given its incredibly prejudicial effect courts and litigants need to analyze this issue very carefully before allowing alcohol to be inserted into any civil matter. The knee-jerk reaction is to assume that if blood alcohol content (hereinafter “BAC”) involved in an automobile case is a level above the statutory minimum it should be automatically admitted. Additionally, practitioners in other types of cases including premises and products cases attempt to bootstrap the statutory provisions of the Illinois Vehicle Code into an argument for admissibility of BAC: should the BAC be above the statutory limits in order to be admissible. The reality is the analysis is actually much deeper and more methodical than that. There simply is no bright line for the admission of alcohol or drugs into a case. When we hear BAC is beyond a certain level the reaction is the alcohol should automatically be admitted to show impairment. This rush to admit this evidence is not the law.
The threshold question is whether the evidence of alcohol is relevant or probative to the issues in the case. Petraski v. Thedos, 382 Ill.App.3d 22, 30. (1st Dist. 2008) (Hereinafter “Petraski I”) Once the Court determines that the alcohol is relevant and reliable the court must then turn its attention to the determination of whether it is admissible. The court must conduct a balancing test to determine admissibility. Id. at 26. The court also reiterated the long-standing proposition that “relevant evidence may be excluded if its probative value is substantially outweighed by the nature of the unfair prejudice.” Id. at 31. The Court also found that “it must be shown that the intoxication resulted in an impairment of mental or physical abilities and a corresponding diminution in the ability to act with ordinary care.” Id.
There is no statute, nor is there case law that provides that someone that is presumptively over the legal limit in an automobile case is also presumptively under the influence in other cases. It is not unusual for the argument to arise that a plaintiff or a defendant is over .08 and thus the triggering of a presumptive level of being under the influence of alcohol. This is a trap that is not supported by the case law. The presumption of “under the influence of alcohol” is only contained in the Illinois Vehicle Code. It does not necessarily lead to the assumptive conclusion that a party is intoxicated or impaired because he or she is over the statutory limit. Quite to the contrary, the Illinois Courts have held that the presumptive level only supports that a person is under the influence and not that they are presumptively impaired or intoxicated. Petraski v. Thedos, 2011 Ill.App (1st) 103218 (2011) (hereinafter “Petraski II”). The rationale for this is clear. Different people react to and metabolize alcohol differently, thus impairment must be proven even in the face of an elevated BAC.
There have been a numerous of cases over the years that have dealt with the admissibility of alcohol. Perhaps the most often cited cases are Petraski I and Petraski II. In Petraski I, the plaintiff, Margaret Petraski, was involved in a high-speed collision with a Sheriff’s deputy. The collision took place at an intersection where the plaintiff had been stopped and began a left turn on a green arrow. The trial court barred the testimony of the expert based on the expert’s speculative conclusions that at the time of the accident in question Margaret was impaired. The expert employed retrograde extrapolation in arriving at his conclusion. This is a process whereby the expert attempts to determine the BAC at the time of the occurrence by using the BAC at the time of the blood draw or breathalyzer, then extrapolating back in time using a rate of elimination, to determine the BAC at the time of the occurrence in question. In order to perform retrograde extrapolation the expert needs certain pieces of information. The threshold question for the expert is whether the party in question is in the absorption or elimination phase regarding the metabolization of the alcohol. Essentially, a determination must be made whether the body is still in process of absorbing the alcohol, thus the BAC is still rising, or whether the body is eliminating, thus the BAC is dropping. In order to make the determination the expert must know certain information such as the last time the person drank, what she was drinking, food intake, etc.
The expert in Petraski I conceded that he did not possess a number of foundational issues such as when she had her last drink, what she was drinking, food intake and a host of other issues. As such, the validity of the BAC was called into question. Additionally, the expert had no information as Margaret’s actions leading up to the accident in the form of witness testimony such as erratic driving, speeding, swerving or the like. Due to of Margaret’s injuries, she had no recollection of the accident. The lack of this foundation resulted in the expert having no opinions that Margaret was actually impaired. As a result the expert’s testimony in Petraski I was barred.
The Appellate Court reversed in Petraski I stating that the evidence of BAC was relevant or probative to explain why Margaret turned left while a speeding squad car was headed towards her and that evidence should have been admitted. As such, while the expert’s opinion that she was under the influence was relevant, it did not negate the need for a determination that Margaret was in fact impaired or intoxicated.
Petraski I and II are often misunderstood for the proposition that an expert can testify to a party’s BAC based on a bright line test. Neither case made such an announcement. The court also did not announce that an expert would be prohibited from testifying about impairment should a party’s BAC be extraordinarily high.
Petraski II recounted the re-trial of the matter. The trial court in the re-trial allowed the admission of the BAC testimony; however, the Defendant’s expert was unable to provide a foundational basis for his opinion that Margaret was impaired at the time of the accident. The expert only testified as to generalities of people in similar circumstances. Following the verdict trial court in post-trial motions found that it had erred in allowing the expert testimony because the expert failed to opine as to Margaret’s conduct. Rather he conceded that he could not talk about Margaret in particular. The Plaintiff in post-trial motions argued that the foundational basis was not provided to allow the admission of this alcohol evidence, specifically the issues of intoxication or impairment, with no foundation for doing so. The trial court agreed granting a new trial. The defense appealed the matter arguing the trial court abused its discretion and failed to follow the appellate court’s ruling in Petraski I.
Petraski I and Petraski II provide a clear illustration of the prejudicial effect of alcohol evidence in a case. In Petraski I the jury awarded thirty-five million dollars reduced by twenty-five percent contributory fault attributed to Margaret. In Petraski II where the evidence of alcohol was allowed, the jury found the defendant not guilty. The jury instructions provide the likely reason for this result. The Jury instruction on the issue of alcohol and drug use is contained in the Illinois Pattern Jury instruction 12.01. This instruction was modified to its current language in 2009 and provides as follows:
Intoxication is no excuse for failure to act as a reasonably careful person would act. An intoxicated person is held to the same standard of care as a sober person. If you find that [insert allegedly intoxicated person] was intoxicated at the time of the occurrence, you may consider that fact, together with other facts and circumstances in evidence, in determining whether [insert allegedly intoxicated person] conduct was [negligent] [willful and wanton] [or] [contributorily negligent].
This instruction is similar to the one that was given in Petraski although it has been somewhat reformatted to place the “intoxication is no excuse language” at the forefront.
The Appellate Court in Petraski II clarified the initial ruling regarding the alcohol testimony. While not negating the finding that the BAC was relevant, without more foundation, this could not and does not stand for the proposition that a BAC above the statutory presumptive limit allows an expert to testify unfettered regarding the impairment of the individual involved. The Defendants in Petraski II argued that once an individual’s BAC is above the statutory presumption that individual is under the influence and it is also presumed they are intoxicated; however, the Illinois Vehicle Code 625 ILCS 5/11-501.2(b)(3) only provides a presumption that someone is under the influence of alcohol it does not presume intoxication. The Defendants argued Wade v. City of Chicago Heights, 216 Ill.App.3d 418 (1st Dist 1991), for this proposition, but the court in Petraski II noted that Wade specifically stated that “although one who is intoxicated can be said to be under the influence of alcohol, the converse is not necessarily true: one may be under the influence of alcohol in varying degrees without necessarily being considered intoxicated.: Petraski II at ¶115. As previously stated, neither section 11-501 nor section 11-501.2 of the Illinois Vehicle Code employs the term ‘intoxicated.’ Nor is the concept of being under the influence anywhere statutorily equated with being intoxicated.” Wade, 216 Ill.App.3d at 434.
This issue was further discussed in Logan v. US Bank, 2016 Il.App (1st) 15249. Logan was a legal malpractice case addressed the level of narcotics in an individual that was 10-20 times the amount which would be customarily administered to a patient in moderate pain. Id. at ¶12. The Court clearly indicated that the Appellate Court in Petraski II did not announce a bright-line test, nor did they conclude that the admission of an expert’s opinion of impairment would be an abuse of discretion based upon an unusually high BAC. Id. at ¶14. They reiterated that they found no authority for the proposition that an expert may testify to an individual’s impairment solely based on the fact that her BAC was above the statutory limit. Id. at ¶14. The Logan court went on to state that “We believe that the admission of an expert witness’s opinion that an individual was intoxicated or impaired based upon BAC depends on the level of alcohol in the individual’s blood.” Id. at ¶14 When the statutory level at which an individual is presumed to be under the influence is relatively low; a trial court does not abuse its discretion in barring an expert’s opinion that the individual was intoxicated or impaired based solely on BAC. Id. at ¶14 Interestingly, the Logan Court went on to discuss that, while that case involved morphine rather than alcohol, the analysis is the same. Id. at ¶15.
The Court in Petraski II upheld the trial court’s granting of a new trial finding that the expert had no evidence of Margaret’s conduct leading up to the accident. There was no evidence she was speeding or otherwise driving erratically. There was no evidence to corroborate impairment. Id. As such the Appellate Court in Petraski II upheld the trial court’s finding granting of a new trial based on the expert’s testimony being unreliable as to her Margaret’s intoxication.
It is axiomatic that extremely high levels of BAC could allow an expert to testify regarding an individual’s level of impairment as medical science would dictate that an extremely high BAC would have definitive effects on any individual. Petraski II discussed that the Court in Marshall v. Osborn, 213 Ill.App.3d 134 allowed expert testimony regarding that a BAC of .320 would “have a profound effect on the decedent’s perception, judgement and physical abilities.” Id. However, even in the instance of extremely high BAC levels there must be some finding of causation. Bielaga v. Mozdzeniak, 328 Ill.App.3d 291, 298. Without this finding, the alcohol can only be offered to inflame or prejudice the jury.
The bottom line is that the admissibility of this potentially highly prejudicial evidence should not be allowed lightly. The analysis must not be limited to the BAC of the individual applying some bright line demarcation. An analysis of the foundational factors that play a role in the determination of the absorption and elimination of alcohol, evidence of actual impairment and a careful balancing of the relevance of the evidence, along with its prejudicial effect are all factors that must be reviewed prior to alcohol evidence being admitted into a case.