State v. Lemler

#24815-a-SLZ

2009 SD 86

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

NEAL J. LEMLER, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT

OF THE SIXTH JUDICIAL CIRCUIT

HUGHES COUNTY, SOUTH DAKOTA

* * * *

HONORABLE JAMES W. ANDERSON

Judge

* * * *

MARTY J. JACKLEY

Attorney General

MAX A. GORS

Assistant Attorney General Attorneys for plaintiff

Pierre, South Dakota and appellee.

ROSE ANN WENDELL Attorney for defendant

Pierre, South Dakota and appellant.

* * * *

ARGUED ON APRIL 28, 2009

OPINION FILED 09/16/09

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ZINTER, Justice

[¶1.] Probationer Neal J. Lemler’s alcohol monitoring bracelet registered

three “drinking events,” and the State petitioned to revoke his probation. At the

probation violation hearing, the circuit court ruled the State’s expert was qualified

to testify concerning transdermal alcohol detection. At the end of the evidentiary

hearing, the court ruled the methodology utilized in the alcohol monitoring bracelet

met the Daubert standard for admissibility of scientific evidence. After considering

conflicting expert opinions whether certain variables could have affected the

monitoring bracelet’s results, the court entered findings that it was reasonably

satisfied Lemler had consumed alcohol and violated probation. On appeal, Lemler

challenges the qualifications of the State’s expert, the admissibility of the alcohol

monitoring bracelet data under Daubert, and the sufficiency of the evidence to

support a probation violation. We affirm.

Facts and Procedural History

[¶2.] Lemler was arrested for driving under the influence of an alcoholic

beverage in September 2005. He pleaded guilty in April 2006 and was sentenced to

two years in the penitentiary as a third-time offender. The court suspended

execution of sentence and placed him on probation for two years.

[¶3.] As a condition of probation, Lemler was not to consume alcoholic

beverages. On January 16, 2007, the court ordered use of a Secure Continuous

Remote Alcohol Monitoring (SCRAM) bracelet to ensure compliance with this

condition. Lemler was subsequently fitted with a SCRAM bracelet and he signed a

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SCRAM participation agreement. The agreement prohibited the use of any product

containing alcohol, whether consumable or not. 1

[¶4.] The methodology underlying the SCRAM bracelet is premised on the

fact that when blood containing alcohol passes through capillaries in the skin, a

portion of the alcohol is absorbed into water compartments. After absorption, the

alcohol evaporates through the skin like perspiration. Detection of alcohol is based

on the principle (not contested in this case) that people eliminate approximately 1%

of consumed alcohol transdermally through sensible (liquid) and insensible (vapor)

perspiration. The SCRAM bracelet measures transdermal alcohol concentrations

(TACs) in the insensible perspiration. There is no dispute in this case that

transdermal alcohol testing has, since 1985, been a generally accepted way to detect

alcohol in the blood, and this form of testing has been verified by several methods

and scientists. Lemler agrees that “transdermal alcohol analysis has been proven

to work with beverage alcohol.” (Appellant’s Br 16.)

[¶5.] The SCRAM bracelet is worn just above the ankle. It is fastened to the

ankle with a strap and locking clip. The bracelet consists of two components. The

first contains a fuel cell that measures ethanol gas in the insensible perspiration.

The second component contains electronics that detect tampering, removals, and

1. The agreement provided that Lemler was “. . . to abstain from any and all

alcohol consumption and to refrain from the use of products containing

alcohol and to not participate in restricted activities as described: Banned

Products– ‘I understand that I am not to use or possess any product

containing alcohol, including, but not limited to: mouthwash, medicinal

alcohol, household cleaners and disinfectants, lotions, body washes,

perfumes, colognes, or other hygiene products that contain alcohol.’”

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obstructions. This component also collects, stores, and transmits the alcohol

measurements via radio frequency link to a modem installed in the probationer’s

home. The modem uploads the data to Alcohol Monitoring Systems (AMS), the

SCRAM manufacturer, for analysis. According to AMS, the bracelet “flags” all

transdermal alcohol readings of .02% alcohol by weight or higher. A drinking event

is not “confirmed” unless there are three consecutive measurements over .02%.

According to AMS, this requires the consumption, on average, of at least two drinks

per hour. During normal monitoring, readings are taken approximately every hour.

When the bracelet detects a reading of .02% or greater, the bracelet begins taking

readings every thirty minutes.

[¶6.] When apparent drinking events are detected, the data is analyzed by

AMS technicians using known correlations between TACs and blood alcohol

concentrations (BACs). 2 When a person consumes alcohol, blood alcohol levels

follow predictable changes that, when plotted over time, produce a BAC curve. This

curve has: an absorption phase as alcohol is consumed and absorbed into the blood;

a distribution phase as alcohol is distributed by blood throughout the body; and, an

elimination phase as the body processes and eliminates alcohol through the liver,

breath, and skin. TAC readings are also plotted, producing a TAC curve. Although

the TAC curve is correlated with the BAC curve, three differences are observable.

First, the initial detection of transdermal alcohol is delayed. 3 Second, peak TACs

2. The correlation used by AMS for beverage alcohol has not been challenged in

these proceedings.

3. The delay is caused by the way the body processes alcohol.

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are lower than peak BACs. Third, TACs remain elevated for a period of time after

BAC levels return to zero.

[¶7.] To confirm or exclude a drinking event, AMS technicians compare the

TAC curve, particularly the absorption rate, the peak concentration, the elimination

rate, and the total elimination time against the same known parameters for BAC

curves. AMS’s analysis, like that commonly utilized in blood-alcohol testing, is

based on averages for all humans. According to AMS, averages are chosen that

eliminate false positive readings by disregarding readings that are not sufficiently

high to suggest alcohol consumption. If the SCRAM bracelet’s periodic

measurements reflect a TAC curve that is sufficiently correlated with known

averages for beverage alcohol consumption, AMS presumes a drinking event has

occurred.

[¶8.] In some cases, the data may reflect that an obstruction or interferant

has come into contact with the bracelet. Obstructions are objects (such as paper)

that can be inserted between the bracelet and the skin. Interferants are substances

that, through exposure to the bracelet, can produce a TAC reading. Interferants

include products containing consumable and not consumable alcohols, as well as

some chemicals found in products such as antifreeze and certain cleaners.

According to AMS, interferants can be excluded from data indicating alcohol

consumption because interferants produce a different TAC curve.

[¶9.] The AMS analysis does not attempt to quantify how much alcohol is in

a person’s blood. Rather, the analysis only determines whether the subject has

consumed alcohol. If alcohol is detected but the TAC curve also suggests the

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presence of an interferant, a drinking event is not confirmed. In those situations,

AMS contacts the probation officer to question the probationer whether obstructions

or interferants could have caused the SCRAM device to react. If interferants were

being used, the data is reviewed again to see if the TAC curve is consistent with

alcohol consumption and the concurrent presence of an interferant. If that review is

not conclusive, then the event is not reported as a drinking event. If the data

reflects alcohol consumption together with the use of an interferant, then a drinking

event is reported.

[¶10.] Lemler’s SCRAM bracelet detected transdermal alcohol on July 10, 11,

and 12, 2007. On July 10, the bracelet detected alcohol at 8:00 p.m. On July 11, the

bracelet detected alcohol at 11:00 a.m., continuing until after 1:00 a.m. the following

morning, July 12. AMS technicians reviewed the data from the bracelet, and based

on the TAC curves, concluded that Lemler had consumed alcohol. According to the

AMS technicians, some of the data also reflected the presence of an interferant.

[¶11.] As a result of the data, the State filed a petition to revoke Lemler’s

probation. Lemler filed an affidavit denying that he had consumed alcohol and

alleging that interferants used in his occupation as a farmer must have caused the

readings. Lemler specifically alleged that he had been using John Deere brand

graphite lubricant and starter fluid, and that he had cleaned out grain bins

containing fermented grain. Lemler also called three witnesses who had different

levels of contact with him on those days. Those witnesses testified that they did not

observe evidence of alcohol consumption. Lemler finally alleged that he had sores

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caused by the SCRAM bracelet, and that the sores may have contributed to the

readings.

[¶12.] The State called Jeff Hawthorne as an expert witness to explain the

AMS analysis and refute Lemler’s arguments. Hawthorne is the Chief Technology

Officer at AMS. Over Lemler’s objections, the circuit court recognized Hawthorne

as an expert in transdermal alcohol detection. After considering the conflicting

evidence presented by the parties, the court also determined that Hawthorne’s

opinions met the Daubert standard for reliability of scientific evidence.

[¶13.] Regarding Lemler’s interferants defense, Hawthorne testified that

interferants were detectable and excludable because they produced a different TAC

curve than that produced by beverage alcohol consumption. Hawthorne explained

that if a person pours or spills alcohol or other interferants on or near the bracelet,

the TAC curve reflects a sharp peak or spike with very quick elimination, neither of

which is present in a drinking curve. He also indicated that, unlike TAC curves

from consumed alcohol, the absorption rate of topical interferants is very fast. With

respect to fermented grain vapor inhalation, Hawthorne testified inhalation could

not produce measurable amounts of alcohol in the blood that could be eliminated

transdermally. Regarding Lemler’s sores, Hawthorne testified that the sores would

not have any effect on the bracelet’s alcohol readings.

[¶14.] Hawthorne further testified that he had tested graphite lubricant and

starter fluid, and found that neither produced data like that exhibited in the July

10-12 data. Because Lemler disagreed with the testing, the John Deere brand

graphite lubricant was shipped to AMS for retesting. AMS’s retesting, in

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Hawthorne’s opinion, indicated that Lemler’s alleged interferants did not cause the

observed TAC readings. Hawthorne ultimately opined that, based on his education

and experience, Lemler had consumed alcohol on the dates in question.

[¶15.] Lemler’s expert witness was Dr. Michael Hlastala. Dr. Hlastala is an

expert in physiology, alcohol physiology and pharmacokinetics. 4 He had testified in

at least six other SCRAM cases and had researched and published numerous

articles on transdermal alcohol exchange. Dr. Hlastala studied the diffusion of

alcohol and the dynamics of the process, including variables in the human body that

can influence diffusion. According to Dr. Hlastala, fuel cell detection of alcohol, the

technology used to detect alcohol in the SCRAM bracelet, is generally accepted, but

has limitations. One limitation is that fuel cells are nonspecific for ethyl alcohol.

Therefore, other types of alcohol such as methyl alcohol, isopropyl alcohol, butyl

alcohol, and 2-butoxyethanol (interferants) may cause a fuel cell reaction. Another

source of detectable interferants is the hydroxyl group (OH), which is found in

glycols and some cleaning solutions. Consequently, Dr. Hlastala opined that if

contamination from such interferants entered the body and were diffused through

the skin, the shape of the interferant TAC curve “may” not be different from a

beverage TAC curve. Although he conceded that these non-consumable alcohols

may be toxic if consumed, he opined that long exposure to chemicals under certain

confined conditions could result in substance absorption into the skin and

4. Pharmacokinetics relates to the body’s processing of a substance like alcohol.

Dr. Hlastala testified that it is “the way that alcohol is processed; it goes into

the body, [is] absorbed, metabolized, distributed.”

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subsequent elimination, suggesting a possible source for fuel-cell readings unrelated

to alcohol consumption.

[¶16.] After hearing the evidence, including the possibility of interferants

having affected Lemler’s bracelet’s data, the circuit court found that the results of

the SCRAM bracelet were relevant, reliable and met the Daubert standard of

admissibility. After hearing the other lay witnesses, the court entered a finding

that it was “reasonably satisfied that Neal Lemler consumed alcohol on the three

occasions shown by the SCRAM bracelet.” The court concluded that Lemler violated

a condition of his probation.

Decision

Whether Hawthorne Was Qualified to Render an Expert Opinion

[¶17.] Lemler argues that Hawthorne lacked the qualifications necessary to

testify as an expert witness on transdermal alcohol detection. Lemler points out

that the SCRAM technology is scientific in nature. Lemler contends that

Hawthorne was not a qualified expert because he is not a scientist, he had only co-

published one article on the subject, he had not studied or been peer-reviewed on

the physiology of alcohol, and his curriculum vitae did not reflect evidence of

responsibilities concerning the science behind the SCRAM technology.

[¶18.] The admission of expert testimony is governed by SDCL 19-15-2 (Rule

702), which provides,

If scientific, technical, or other specialized knowledge will assist

the trier of fact to understand the evidence or to determine a

fact in issue, a witness qualified as an expert by knowledge,

skill, experience, training, or education, may testify thereto in

the form of an opinion or otherwise.

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Assuming that the assistance to the trier of fact requirement is met, 5 the witness

must also be “qualified.” Klutman v. Sioux Falls Storm, 2009 SD 55, ¶21, 769

NW2d 440 (citing Burley v. Kytec Innovative Sports Equip. Inc., 2007 SD 82, ¶16,

737 NW2d 397, 404). “Whether a witness is qualified as an expert can only be

determined by comparing the area in which the witness has superior knowledge,

skill, experience, or education with the subject matter of the witness’s testimony.”

Maroney v. Aman, 1997 SD 73, ¶39, 565 NW2d 70, 79. We review a trial court’s

“decision to admit or deny an expert’s testimony under the abuse of discretion

standard.” Burley, 2007 SD 82, ¶12, 737 NW2d at 402.

[¶19.] In this case, the evidence reflected that Hawthorne had substantial

knowledge and experience in transdermal alcohol measurement and SCRAM

technology. He had a bachelor’s degree in electrical engineering and had completed

some work on a master’s degree in business administration. Although this

educational background did not reflect expertise in transdermal alcohol

measurement, Hawthorne is the chief technology officer at AMS. His experience in

alcohol testing started in 1986, when he became involved in the design and

development of hand-held breath testing equipment with both fuel cells and active

sensor technology. In 1989, Hawthorne began researching transdermal alcohol

monitoring, and by 1991, he co-invented the SCRAM bracelet. In June 2006,

Hawthorne and Mark H. Wojcik, published an article, “Transdermal Alcohol

Measurement: A Review of the Literature,” in the Canadian Society of Forensic

5. Lemler does not dispute that the “assistance to the trier of fact” requirement

was satisfied.

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Science, a peer-reviewed journal. 6 Can. Soc. Forensic Sci. J. Vol 39 No 2 (2006) pp

65-71. Hawthorne had also qualified as an expert and testified on forty-eight prior

occasions regarding transdermal alcohol testing.

[¶20.] Although Lemler acknowledges that Hawthorne has qualified as an

expert numerous times on the subject at issue, he contends that numbers alone do

not make him qualified to be an expert witness. Lemler also contends that because

of Hawthorne’s financial interest in AMS, he cannot claim expert status. We

believe that although prior qualifications as an expert and financial interest in the

company performing the test are factors to consider, neither is dispositive. In this

case, the circuit court acknowledged Hawthorne’s association with AMS and did not

rely solely on Hawthorne’s history as an expert witness. Instead, the circuit court

relied on a number of factors. Explaining why it qualified Hawthorne as an expert

on the subject matter of his proposed testimony, the circuit court found:

• Jeffrey Hawthorne has been working [in] the field of alcohol

sensing for more than ten years.

• Jeffrey Hawthorne invented the SCRAM bracelet, had it

patented in 1993 and currently is employed by [AMS] as the

Chief Technology Officer.

• Jeffrey Hawthorne has conducted numerous scientific studies

on transdermal monitoring and is an expert in the field.

• Jeffrey Hawthorne is an expert on the SCRAM bracelet and

accompanying technology and has been accepted as an expert

6. Hawthorne’s article surveyed existing studies and research on transdermal

alcohol measurement. Hawthorne testified that he and his co-author

“reviewed a lot of [the] articles and then we did experiments trying to

duplicate what they did, and we were successful in duplicating a lot of their

results. So along the way we were doing studies to justify the article that we

were researching.”

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and testified in at least forty-[eight] courts in the United

States.

• Jeffrey Hawthorne has studied transdermal alcohol sensing

and has published a scientific treatise on the subject.

• Jeffrey Hawthorne’s scientific treatise was published in the

Canadian Journal of Science and has been subject to peer

review.

[¶21.] “Reading, study, and practice can be a source of education and

knowledge sufficient to qualify a person as an expert.” Burley, 2007 SD 82, ¶19,

737 NW2d at 404 (citing John W. Strong, McCormick on Evidence, § 13, 24 (5th ed

1999)). The circuit court relied on these factors in making its determination. “This

court has consistently held that the trial judge has the discretionary power to

determine whether a witness is an expert witness. As such, his ruling will not be

disturbed ‘unless there is no evidence that the witness had the qualifications of an

expert or the trial court has proceeded upon erroneous standards.’” State v.

Edmundson, 379 NW2d 835, 839 (SD 1985) (citing State ex rel. Helgerson v. Riiff,

73 SD 467, 475, 44 NW2d 126, 139 (1950)). In this case, there was evidence that

Hawthorne had expert qualifications and Lemler has not established that the

circuit court proceeded upon erroneous standards. The circuit court did not abuse

its discretion in qualifying Hawthorne as an expert witness.

Whether the SCRAM Data Met the Daubert Standard

[¶22.] South Dakota courts determine the admissibility of scientific evidence

in accordance with Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 US 579, 113

SCt 2786, 125 LEd2d 469 (1993). See State v. Weaver, 2002 SD 76, ¶25, 648 NW2d

355, 364-65. The Daubert standard requires that the trial court ensure an expert’s

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testimony “rests on a reliable foundation and is relevant to the task at hand.” State

v. Hofer, 512 NW2d 482, 484 (SD 1994) (quoting Daubert, 509 US at 597, 113 SCt at

2799). Lemler does not dispute the relevancy inquiry; he only challenges reliability,

arguing that variables may affect the fuel cell methodology employed in the SCRAM

bracelet.

[¶23.] “Pertinent evidence based on scientifically valid principles will satisfy

[the reliability] demands.” Id. “The burden of demonstrating that the testimony is .

. . reliable rests with the proponent of the testimony. . . . The proponent . . . must

prove . . . admissibility by a preponderance of the evidence.” Burley, 2007 SD 82,

¶13, 737 NW2d at 403 (citing Daubert, 509 US at 592 n10, 113 SCt at 2796).

However, in reviewing a trial court’s “gatekeeper” role in screening such evidence,

courts “may not categorically distinguish between rulings allowing expert testimony

and rulings disallowing it.” General Elec. Co. v. Joiner, 522 US 136, 142, 118 SCt

512, 517, 139 LEd2d 508 (1997).

[¶24.] Furthermore, after Daubert, “general acceptance in the scientific

community is no longer required [as a precondition to admissibility.]” Hofer, 512

NW2d at 484. The Supreme Court “reasoned that the ‘liberal thrust’ of the Federal

Rules of Evidence . . . requires a more ‘flexible’ approach than Frye’s general

acceptance threshold.” United States v. Davis, 40 F3d 1069, 1074 (10thCir 1994)

(citing Daubert, 509 US at 594-595, 113 SCt at 2797-98). Under Daubert’s more

flexible approach, four factors guide a court’s consideration: (1) whether the theory

or technique in question can be (and has been) tested, (2) whether it has been

subjected to peer review and publication, (3) its known or potential error rate and

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the existence and maintenance of standards controlling its operation, and (4)

whether it has attracted widespread acceptance within a relevant scientific

community. 509 US at 593-94, 113 SCt at 2796-97. “The test of reliability is [,

however,] ‘flexible,’ and Daubert’s list of specific factors neither necessarily nor

exclusively applies to all experts or in every case.” Kumho Tire Co., Ltd. v.

Carmichael, 526 US 137, 141, 119 SCt 1167, 1171, 143 LEd2d 238 (1999).

[¶25.] Finally, as is particularly relevant in this case, the proffered opinion

may be inferred from accepted facts, and the subject of the scientific testimony need

not be known to a certainty:

The adjective “scientific” implies a grounding in the methods

and procedures of science. Similarly, the word “knowledge”

connotes more than subjective belief or unsupported speculation.

The term “applies to any body of known facts or to any body of

ideas inferred from such facts or accepted as truths on good

grounds.” Webster’s Third New International Dictionary 1252

(1986). Of course, it would be unreasonable to conclude that the

subject of scientific testimony must be “known” to a certainty;

arguably, there are no certainties in science.

Loftus, 1997 SD 131, ¶22, 573 NW2d at 173 (citing Daubert, 509 US at 590, 113 SCt

at 2795). Thus, an expert may extrapolate from existing data as long as there is an

analytical connection between the known data and the expert’s opinion. Joiner, 522

US at 146, 118 SCt at 519. In applying Daubert, “[t]he focus . . . must be solely on

principles and methodology, not on the conclusions that they generate.” Wells v.

Howe Heating & Plumbing, Inc., 2004 SD 37, ¶16, 677 NW2d 586, 592 (citing

Daubert, 509 US at 595, 113 SCt at 2797).

[¶26.] In this case, the circuit court found, “[b]oth experts . . . agreed that fuel

cell technology is generally accepted for testing alcohol in the system,” and “[b]oth

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experts . . . agreed that alcohol in the system can be detected and measured through

transdermal monitoring using existing fuel cell technology.” Lemler does not

dispute these findings. Further, there is no dispute that transdermal science began

in 1936, when scientists discovered that they could estimate blood alcohol levels by

analyzing perspiration from the skin. By 1985, scientists began using fuel cells and

other devices to monitor alcohol from insensible perspiration. Studies concluded

that ethanol was excreted in sufficient quantities to detect blood alcohol.

Hawthorne testified the methodology has been “verified through several different

methods by several different scientists” and is “widely recognized as valid science

within the scientific community.” Hawthorne cited a number of supportive

published 7 and unpublished 8 studies. 9

7. Examples included a study by the Acadiana Criminalistics Laboratory in

Louisiana, published in the Louisiana Society of Forensic Toxicologist

Newsletter; a study by the Michigan Department of Corrections, published in

the Journal of Offender Monitoring; and, a 2006 two-year study at the

University of Colorado, Drs. Joseph T. Sakai, Susan K. Mikulich-Gilbertson,

Robert J. Long, and Thomas J. Crowley, Validity of Transdermal Alcohol

Monitoring: Fixed and Self Regulated Dosing, Alcoholism: Clinical and

Experimental Research, Vol 30 No 1 (2006) pp 26-33. The latter study

specifically involved the SCRAM bracelet. The study was partially funded by

AMS and by The National Institute of Mental Health. The study reported no

false positive indications. It further concluded that TACs did lag breath

testing by two to three hours, the TAC peak was lower than that measured in

breath testing, and that TACs took longer to return to zero. According to

Hawthorne, this independent testing mirrored AMS’s testing.

8. The example cited was a study by the National Law Enforcement and

Corrections Technology Center in Alaska.

9. At the time of hearing, Hawthorne identified a study completed, but not yet

published, by the National Highway Traffic Safety Administration. That

study has since been published. Although we do not rely on this study

because it was not admitted at the hearing, it does not contradict

(continued . . .)

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[¶27.] Hawthorne further testified that the components of the SCRAM

bracelet, and in particular, the fuel cell detection methodology, have been generally

accepted in the commercial marketplace. For example, the evidence reflected that

fuel cells are commonly used in evidentiary breathalyzers and preliminary breath

testing devices used to detect alcohol. According to Hawthorne, the same sensor is

used in approximately 50,000 hand-held alcohol measuring devices used on five

continents. Lemler concedes that the SCRAM bracelet has been on the market

since 2003, and that there are similar types of transdermal alcohol measuring

devices on the market. Indeed, Lemler’s own expert has written that, as of

November 2007, SCRAM was being used in some fashion in at least 44 states.

Michael P. Hlastala and Patrick T. Barone, Identification of Transdermal Ethyl

Alcohol, DWI J. Law and Science, November 2007, at 1. Further, Lemler did not

dispute that at the time of the hearing, AMS had performed over 92 million alcohol

tests and had monitored 48,913 subjects over almost 4 million days of recorded

monitoring in almost 1,500 jurisdictions. There was also no dispute that the theory

of transdermal transport is utilized in many medical products commonly used

____________________

(. . . continued)

Hawthorne’s studies. On the contrary, it recognizes the validity of this

methodology as a monitoring device. See Paul R. Marques and A. Scott

McKnight, Evaluating Transdermal Alcohol Measuring Devices, p 50

(National Highway Traffic Safety Administration 2007) (concluding, “[t]he

monitoring of alcohol consumption does not depend on precise measurement

of BAC; it depends on the ability of a technology to detect abstinence

violations as measured by a signal in excess of some minimal amount, such

as .02 g/dL. As a monitoring device for offenders, the transdermal concept is

valid and the benefit appears evident despite [other limitations not relevant

to Lemler’s case].” (emphasis added)).

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today. 10 Thus, Lemler’s own expert witness agreed that from a scientific standpoint

the SCRAM device, as a general principle, was scientifically sound.

[¶28.] Although Lemler concedes that transdermal alcohol analysis has been

proven to work with beverage alcohol, he argues that there are “too many

variables,” which have not been subjected to scientific scrutiny, to admit

Hawthorne’s testimony. (Appellant’s Reply Br 8.) Lemler’s argument is based on

the fact that the SCRAM bracelet’s fuel cell does not distinguish between ethyl

(beverage) alcohol and other types of nonconsumable alcohols and substances

(interferants) that are commonly found in anti-itch creams, hand sanitizers,

rubbing alcohol and antifreeze. See supra ¶8. Similarly, Lemler claims that

prolonged contact with fermented grain, such as Lemler allegedly encountered,

could have produced ethyl alcohol that could be inhaled or absorbed into his skin.

Because TACs from these interferants could be detected by the SCRAM bracelet,

Lemler argues that these other substances could produce a TAC curve that looks

like one produced from consumed beverage alcohol. Additionally, Lemler contends

that sores on one’s leg, the thickness and hydration of the skin, and the

environment in which the exposure to an alleged interferant occurred may skew the

bracelet's result. Lemler concludes that there are too many variables, some of

which have not been subjected to scientific scrutiny, to satisfy Daubert.

10. Hawthorne listed the following examples: nicotine patches, birth control

patches, seasickness patches, nitroglycerin chest pain medication, blood

pressure drugs, Ben Gay, Icy Hot, and muscle relaxants.

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[¶29.] Hawthorne, however, identified an analytical basis to interpret the

TAC data and account for these variables. He explained that with respect to

different skin types and colors, the bracelet is initially calibrated for each

individual. With respect to Lemler’s claimed sore, Hawthorne testified that it

would not have influenced the data reflecting alcohol consumption. Regarding

interferants, Hawthorne testified that AMS was able to distinguish between

interferants and consumed alcohol by comparing the TAC curves of the non-

beverage alcohol/interferants that are exposed to the fuel cell. Hawthorne testified

that AMS relied on internal testing 11 and experience, as well as peer reviewed

literature documenting differences in absorption rates, elimination rates, and the

total elimination time for consumed alcohol and interferants. See infra ¶30. Under

AMS’s analysis, unless all three of these distinguishing features reflected consumed

alcohol on a TAC curve, AMS declined to confirm a drinking event.

[¶30.] Lemler, however, argues that while AMS asserts that a TAC curve

from non-drinking events is expected to look different than a curve associated with

a drinking event, there are no scientific, peer-reviewed studies indicating that the

TAC “for a non-drinking episode will always” produce the data upon which AMS

relies. (Appellant’s Reply Br 4.) Although Hawthorne conceded that interferant

data had not been studied at any “great length,” Hawthorne testified that through

11. Hawthorne testified that AMS conducts ongoing studies. One study

examined 16 people over 30 days. Although the study indicated that not all

confirmed “drinking events” were detected, their technology produced a false

positive rate of approximately .12%. In comparison, Hawthorne testified that

the false positive rate was approximately 1% for the State laboratory and

approximately 5% for commercially available drug kits.

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internal testing of numerous interferants, including those allegedly used by Lemler,

AMS could assess whether the data reflected alcohol consumption or an interferant.

Hawthorne also relied on research by Dr. Giles disclosing the type of data that was

expected of non-consumed alcohol. 12 Although Hawthorne conceded that there was

one study indicating that the pharmacokinetics of transdermal ethanol in humans

is not well understood, he indicated that the debate was not over the differences

observed in data from interferants, but the reason why interferants caused

differences. Although Hawthorne finally acknowledged that variables could affect

the data, 13 he testified the absorption and elimination rates used in the AMS

analysis 14 were set conservatively enough to give a bracelet wearer the benefit of

the doubt and not report false positive results.15

12. Dr. Giles’ research was discussed at several points during the hearing. Some

of his work examined the potential for false readings created by toiletries and

perfumes, as well as the interferant curve of pure ethanol placed on the body

near the sensor. H.G. Giles et al., Ethanol Vapor Above Skin: Determination

by a Gas Sensor Instrument and Relationship with Plasma Concentration,

Alcoholism: Clinical and Experimental Research, Vol 11 No 3 (1987) p 249.

13. Hawthorne acknowledged variables such as thickness and hydration of the

skin can affect how much and how fast alcohol is emitted. Although

Hawthorne also acknowledged that a sore could affect absorption and

elimination rates, the variation would not be outside the limits for Lemler’s

testing. Hawthorne was also cross-examined on variables such as clothing

worn, climate, temperature, and humidity. In each case, he explained the

reasons why, in his opinion, those variables would not have changed the

outcome of their analysis in Lemler’s case.

14. Lemler’s expert agreed with AMS’s assumption regarding the elimination

rate as a “reasonable choice for a cutoff” in this case.

15. Hawthorne testified that the bracelet has been tested in their laboratory and

is calibrated conservatively so that the bracelet wearer has to consume “a

fairly decent rate of at least two drinks an hour for us to confirm an alcohol

(continued . . .)

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[¶31.] Nevertheless, Lemler criticizes the studies upon which AMS has relied.

Lemler points out that one study has not been subject to peer review and another

was funded by AMS. Although these criticisms are relevant, they are not

dispositive. In Joiner, the Supreme Court held that it was within a trial court’s

discretion to conclude that the studies upon which the experts relied were sufficient,

whether individually or in combination, to support their conclusions. 522 US at

146-47, 118 SCt at 519. 16

[¶32.] It is also significant that AMS tested the specific interferants Lemler

claimed had caused the observed readings in this case. Hawthorne tested both the

John Deere starter fluid and graphite lubricant that Lemler claimed he was using.

Both were tested individually and in combination in environments similar to those

Lemler claimed existed. 17 All testing of the claimed interferants produced data that

was consistent with consumed alcohol and the presence of an interferant. Further,

although Dr. Hlastala’s concern related to the possible detection of other

____________________

(. . . continued)

event . . . [w]e’re looking for a rate of consumption of at least two drinks an

hour.”

16. Moreover, although Lemler suggests AMS’s studies are insufficient, we note

that the National Highway Safety Administration has recently cited the same

studies in its review of the effectiveness of the SCRAM bracelet. See

Marques & McKnight, supra note 9.

17. Although Lemler claimed the environments were not similar, Hawthorne

explained that based upon the conditions reflected in Lemler’s affidavit, the

differences would not have changed the result because of the volatility of the

claimed interferants involved.

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substances, 18 he testified that he had no reason to believe interferants were

actually involved or that other variables actually affected the outcome in this case.

Finally, with respect to Lemler’s claimed inhalation of fermented grain fumes,

Hawthorne testified the amount of alcohol consumable in that manner was so small

that it could not raise blood-alcohol levels to measurable amounts. Hawthorne

indicated a number of studies confirmed inhalation does not significantly raise

blood alcohol levels, and Lemler’s expert did not challenge this opinion.

[¶33.] It is most significant Dr. Hlastala agreed “with the science of

transdermal alcohol exchange,” the “principle” that “transdermal alcohol exchange

can be measured by a machine,” that “the SCRAM device can measure whether

there is alcohol in the person’s system,” and that “in principle it can be useful for its

intended purpose.” He agreed fuel cell detection of alcohol was “an accepted way to

test alcohol with the limitation that it is nonspecific for ethyl alcohol.”19 Therefore,

Dr. Hlastala agreed that for determining probable cause, “the SCRAM device is

pretty good for probable cause,” and the device “is suitable for that.” Considering

18. Dr. Hlastala’s concern was in the “borderline situations” in which he believed

the device to be limited in its ability to detect alcohol with certainty. Dr.

Hlastala, however, offered no testimony that one of his possible variable

scenarios actually affected the transdermal alcohol detection in this case.

19. When directly asked about the scientific validity of the SCRAM technology,

Dr. Hastala testified that it was sound.

Q: From a scientific standpoint, do you believe that the SCRAM

device as a general principle is scientifically sound?

A: The answer to that is yes, to a limited degree. I think the principle

of measuring transdermal alcohol is laudable and serves its purpose. . .

.

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this was a probation violation, which only required that a court be “reasonably

satisfied” that a violation occurred, see infra ¶40, Lemler’s own expert confirmed

the requisite level of reliability of the SCRAM bracelet in this case.

[¶34.] Ultimately, Lemler’s arguments are based on the suggestion that

Hawthorne’s conclusions drawn from the accepted scientific process of transferable

diffusion of alcohol could be incorrect. “A party who offers expert testimony is not [,

however,] required to prove to a judge in a Daubert hearing that the expert’s

opinion is correct: all that must be shown is that expert’s testimony rests upon ‘good

grounds, based on what is known.’ Any other deficiencies in an expert’s opinion or

qualifications can be tested through the adversary process at trial.” Burley, 2007

SD 82, ¶24, 737 NW2d at 406 (citing Daubert, 509 US at 590, 113 SCt at 2795).

That is what occurred in this case.

[¶35.] Although Lemler’s expert opined that variables could affect the

outcome or conclusion, there was evidence that the underlying scientific process was

widely accepted, the theories and techniques in question either had been or could be

tested, the process has been subjected to some review and publication, and potential

error rates (under the evidence presented) are lower than some other accepted

methods of measuring alcohol consumption. The issues concerning “possible”

interferants, as well as the possibility of inhaled ethanol from fermented grain,

were factual variables argued to the fact-finder. Under the circumstances, both this

Court and the Supreme Court have recognized that a trial court does not abuse its

discretion in admitting the scientific evidence and then letting the fact-finder

resolve the factual dispute.

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[¶36.] For example, an analogous argument was raised and rejected by this

Court in a case involving the intoxilizer. See Hofer, 512 NW2d at 484. The general

scientific principles underlying the intoxilyzer were not in dispute, but that

defendant challenged reliance on an assumed ratio between alcohol levels in the

breath and blood. At trial, the defendant presented evidence that the State’s

assumed ratio was variable and not applicable to every person. Further, there was

no evidence presented to show what specific ratio would be appropriate for the

defendant. Nevertheless, we noted that the trier of fact heard the defendant’s

evidence concerning the potential inaccuracies in the intoxilyzer test results in light

of those potential variables. We found no abuse of discretion in allowing the trier of

fact to determine how much weight it would give to the intoxilyzer test results. Id.

[¶37.] The Supreme Court has more specifically stated that a scientific

opinion may be admitted under Daubert despite the existence of potential variables

affecting the conclusion. In Joiner, the Court faulted a party seeking admission of a

medical conclusion because the proponent relied on a scientific study that, although

involving a study of animal subjects, failed to explain “how and why the experts

could have extrapolated their opinions from these seemingly far-removed animal

studies . . . .” 522 US at 144, 118 SCt at 518. Although the Supreme Court found

fault with that deficiency, it recognized other “[t]rained experts commonly

extrapolate from existing data.” Id. at 146, 118 SCt at 519. Thus, an expert’s

opinion is not disqualified simply because variables require extrapolation from

known data. It is only when “opinion evidence . . . is connected to existing data only

by the ipse dixit of the expert [,a] court may conclude that there is simply too great

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an analytical gap between the data and the opinion proffered.” Id. 20 Unlike the

situation in Joiner, Hawthorne identified an analytical connection for his

extrapolation: he relied on studies, internal testing, and experience involving

millions of similar tests.

[¶38.] In the final analysis, Lemler’s arguments regarding the SCRAM

bracelet merely involve his disagreement with extrapolating from known facts. 21

Further, Lemler’s expert testimony reflects that he would essentially require

something that Daubert does not: scientific certainty. When asked what form of

alcohol testing he believed appropriate, Dr. Hlastala’s response reflected he did not

believe any extrapolation from known principles was appropriate. He stated:

The best [test] is blood, measuring blood directly. Any other test

is more indirect. A breath test is more indirect. A SCRAM

device is even more indirect. And the more indirect you are, the

more variables there are. It’s a simple matter. If you want to

measure something, measure it directly.

20. Lemler, quoting Gilbert v. Daimler-Chrysler Corp., 470 Mich 749, 783, 685

NW2d 391, 409 (2004), argues that there is too great an analytical gap

between the data and the opinion offered. In Gilbert, however, the Michigan

court only held that a social worker was not qualified to offer expert medical

testimony, stating: “[T]he faux ‘medical’ opinion of an individual who lacked

any medical education, experience, training, skill, or knowledge became the

linchpin of plaintiff’s case and unmistakably affected the verdict.” Id. at 410.

The Michigan court observed that the social worker “gave plaintiff a

‘prognosis’ on the basis of his interpretation of records from medical and

treatment facilities. The medical ‘prognosis’ of a social worker who has no

training in medicine and lacks any demonstrated ability to interpret medical

records meaningfully is of little assistance to the trier of fact.” Id. at 789-90,

685 NW2d at 413. This case, dealing with the qualifications of a social worker

to give a medical prognosis, involves the qualifications of the expert rather

than a qualified experts extrapolation from known data. Lemler’s reliance on

Gilbert is misplaced.

21. Dr. Hlastala opined that the shape of the curve suggested interferants, and

the alcohol levels recorded were too low.

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This reasoning is not a basis for challenging scientific evidence. Joiner, 522 US at

144-46, 118 SCt at 518-19.

[¶39.] Lemler’s position at oral argument also reflects an incorrect focus.

Lemler conceded the underlying technology was accepted. He only questioned how

variables, including non-beverage alcohol, affected the conclusion. As previously

noted, we have rejected that basis for challenging scientific evidence. See Wells,

2004 SD 37, ¶16, 677 NW2d at 592 (citing Daubert, 509 US at 595, 113 SCt at 2797)

(observing that our courts must focus “solely on principles and methodology, not on

the conclusions that they generate”).

[¶40.] Finally, it must be remembered that a circuit court has “‘considerable

leeway’ in deciding in each case ‘how to go about determining whether particular

expert testimony is reliable.’” Burley, 2007 SD 82, ¶25, 737 NW2d at 406 (citation

omitted). We review a circuit court’s “decision to admit or deny an expert’s

testimony under the abuse of discretion standard.” Id. ¶12, 737 NW2d at 402.

“Although we have repeatedly invoked stock definitions, the term ‘abuse of

discretion’ defies an easy description. It is a fundamental error of judgment, a

choice outside the range of permissible choices, a decision, which, on full

consideration, is arbitrary or unreasonable.” Id. (quoting Arneson v. Arneson, 2003

SD 125, ¶14, 670 NW2d 904, 910). The circuit court did not make such a decision in

determining that Hawthorne’s opinions, based on the SCRAM technology, satisfied

Daubert under the evidence presented in this case.

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Whether the Circuit Court Erred in Concluding Lemler Violated His

Probation

[¶41.] Lemler argues that other evidence showed he had not been consuming

alcohol on July 10, 11, and 12, 2007. Under the applicable burden of proof in a

probation revocation case, a court need only be “reasonably satisfied” a violation has

occurred. State v. Beck, 2000 SD 141, ¶7, 619 NW2d 247, 249 (indicating, “[a]ll that

is required is that the evidence and facts be such as to reasonably satisfy the judge

that the conduct of the probationer has not been as good as required by the

conditions of probation.”). We apply the clearly erroneous standard to findings of

fact in a probation revocation proceeding. SDCL 15-6-52(a); State v. Short Horn,

427 NW2d 361, 362 (SD 1988). Findings of fact reviewed under that standard will

not be disturbed unless we are left with a definite and firm conviction that an error

was made. Baldwin v. Nat’l College, a Div. of Dlorah, Inc., 537 NW2d 14, 17 (SD

1995).

[¶42.] AMS provided an extensive report of data collected from Lemler’s

bracelet. Hawthorne compared the absorption and elimination rates of the alcohol.

Both reflected results that would be expected from alcohol consumption. In the first

event, starting at 8:16 p.m., a time outside the normal working day in which

Lemler’s alleged interferants would have been normally used, the data did not

reveal the “spike” associated with interferants. Further, the data reflected alcohol

elimination throughout the night when Lemler would have been sleeping. The data

from the second event indicated an interferant, but that event started at 11:10 a.m.

and ended at 1:36 a.m. the next morning. Therefore, in order for interferants to

have been the only source of the data, the interferant would have had to have been

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applied at every one-half-hour reading taken by the bracelet. Moreover, even if such

an attempt had succeeded, the data would have produced sharp curves with spikes,

unlike those reflected on Lemler’s TAC curve. Finally, even Dr. Hlastala conceded

that if Lemler had actually been exposed to the environmental interferants Lemler

claimed, they would have caused the fuel cell to react at other times than the

isolated instances reflected in Lemler’s data.

[¶43.] With respect to violations, the circuit court found the following facts:

• The SCRAM bracelet worn by Neal Lemler recorded three

separate drinking events in July 2007.

• On July 10, 2007, the SCRAM bracelet showed a normal

drinking event.

• On July 11, 2007, the SCRAM bracelet showed a drinking

event with an interferant at the end.

• On July 12, 2007, the SCRAM bracelet showed a drinking

event with an interferant at the beginning followed by

alcohol consumption.

• The SCRAM bracelet worked properly.

• The [c]ourt is reasonably satisfied that Neal Lemler

consumed alcohol on the three occasions shown by the

SCRAM bracelet[.]

• The [c]ourt is reasonably satisfied that Neal Lemler violated

the condition of his probation that he not consume or possess

any alcoholic beverage while on probation.

[¶44.] Lemler, however, argues that three of his witnesses indicated that they

neither smelled alcohol nor saw any indication that Lemler had been drinking on

the relevant dates. We stated in Rousseau v. Gesinger that “the weight of the

evidence and the credibility of the witnesses is largely a matter of the trial court’s

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determination[.]” 330 NW2d 522, 524 (SD 1983). In this case, the circuit court was

within its discretion in not attaching controlling weight to Lemler’s witnesses.

[¶45.] Lemler also argues that the timing of the alleged violations is

significant: (1) it was mid-July, when heat and humidity could have influenced the

SCRAM bracelet, and (2) he was wearing soiled work clothes between 10:00-11:00

a.m., which is the time the TAC curve reflects an interferant and the beginning of

alcohol consumption. As previously explained, however, AMS had tested for those

scenarios and it did not change its conclusions. Hawthorne testified:

Q: [I]f it’s [starter fluid or lubricants] ongoing on his hands and

on his clothes and it’s being sprayed and he’s working on

machinery and he’s in a shop that’s hot and humid, isn’t that

going to affect the outcome, you know, make your tests

somewhat invalid?

A: I don’t believe so. I mean, we had it on the pants of the

subjects. They wore the pants for five or six hours. There was

no reaction to it.

Further, as previously mentioned, Lemler’s arguments are not supported by his own

expert. Dr. Hlastala never suggested that Lemler’s possible scenarios likely

occurred. He only indicated they were “hypotheticals.” The circuit court apparently

agreed.

[¶46.] The circuit court need only have been “reasonably satisfied” that a

violation occurred. Beck, 2000 SD 141, ¶7, 619 NW2d at 249. The court specifically

found that it was reasonably satisfied by the State’s evidence, and this Court is not

left with a firm and definite conviction that a mistake was made.

[¶47.] Affirmed.

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[¶48.] GILBERTSON, Chief Justice, and KONENKAMP, MEIERHENRY,

and SEVERSON, Justices, concur.

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