The expert witness for the defense in the Ronald J. Wendt II trial was grilled Thursday afternoon by the prosecution, which brought out some discrepancies in testimony given years ago in other trials.
Fran Gengo, Ph.D, is a clinical pharmacologist at the DENT Neurological Institute and currently serves as an associate professor of Pharmacy and Neurology and a clinical assistant professor of Neurosurgery at the SUNYAB School of Medicine. He now practices neuropharmacology research and pharmacotherapy.
His testimony yesterday concerned the rate of alcohol absorption in the body, the accuracy of breath analysis devices, specifically the DataMaster, and criteria for determining a person's level of intoxication.
Assistant District Attorney Kevin Finnell asked if alcohol can have an impact on a person's perception, eye-tracking ability, motor skills and cognition.
Gengo said he had to qualify his answer, "depending on the concentration amount."
According to testimony given in a trial on April 10, 2007 in Michigan, Finnell told Gengo, "you said you believe you can look at a person and determine if he's been drinking."
Gengo said, yes, but not whether that person was intoxicated. Finnell countered by saying Gengo back then said he could tell someone's BAC by looking at them, which Gengo flatly denied.
Back and forth they went, with Finnell asking a question and saying "that's a yes or no," and Gengo hesitating and saying the prosecutor was "mischaracterizing his words."
Finnell also asked him about his voluntary participation in unpaid activities, specifically "grand rounds," a sort of group discussion with students and other professionals about medical, pharmacologic and related topics.
The witness on several occasions, including this inquiry, looked puzzled by Finnell's questions, as though he could not ascertain their relevance.
Finnell asked him if he was paid for his testimony, yes, Gengo replied, $500 to research and decide whether to take a case, and $3,500 for preparation and testimony.
Finnell pointed out that his prices had gone up since 2004, when he charged $2,000 for preparation and testimony. Finnell asked Gengo if favorable defense testimony resulted in more clients, therefore more money in his pockets.
Gengo replied that no, it didn't, his career was more dependant upon his credibility regardless of a trial's outcome, and furthermore, he accepts on only one of every six cases he encounters.
Then they parsed over how correct the calibration was of the DataMaster breathylizer once it left the factory with a rate of .002 accuracy in detecting the amount of alcohol in a person's system. Gengo maintained that, although that standard was higher than the state's .005 standard, the "instrument alone" shouldn't be the determining factor, rather a person's biology, whether they have eaten, their body-mass index, gender, are part of the picture as well.
"The mathematical calculations in some instances are arbitrary," Gengo said.
Inevitably, they went into the inscrutable territory of "partition co-efficients," citing an esteemed Swissman, Dr. Allen Jones's body of work and when and how Gengo's statements differed with this colleague, a man Gengo "had the pleasure of dining with on at least three occasions."
Jones has written, according to Finnell, that the body's rate of alcohol absorption is between five minutes to two hours. Gengo said that was wrong, he believes it to be 45 minutes to two to three hours. The provider of the course materials used to train officers, Intoxometer Co., claims it is 15 minutes to two hours.
"But that is not complete absorption," Gengo said. "It is the time of peak absorption. (In detecting alcohol levels) breath overtakes blood until absorption is complete."
On re-direct examination, Defense Attorney Thomas Burns asked Gengo if he was aware of any jurisdiction where two blows into a breathylizer are mandated. Yes, Dengo replied, but not in New York.
"I don't recall any case where they had the same numbers twice," Gengo said, although they are usually "within a narrow margin."
Gengo was able to explain that a "partition co-efficient" says that for every 2,100 molecules of alcohol in one's breath, there is one molecule in the blood.
This tends to "grossly underestimate the variance of alcohol levels of subjects in the field versus the laboratory."
For example, he said, if a person is running a fever, that can result in a higher number of molecules of alcohol in the blood.
After Gengo's testimony, Sheriff's Deputy Tim Wescott was recalled to the stand. Under questioning by Burns, the officer said he did not ask Wendt at the accident scene about his physical condition, whether or when he had eaten or slept, if he wore contacts and if he was injured.
But when placing handcuffs on him later, Wendt told the officer his left forearm was injured in the accident. Asked if that could have had an impact on his balance during the field sobriety tests, the officer said, yes, if could have.
Asked if he had looked inside Wendt's truck to ascertain any damage inside the cabin on the driver's side, Wescott said no, because he's "not the tallest man in the world" and it would have been difficult to do from a street level.
