For the foregoing reasons, we find the circuit court abused its discretion in excluding the evidence of Evans's consumption of alcohol and the expert testimony of Dr. Rosenhan. Additionally, we reject the State's argument that Dr. Rosenhan is not qualified as an expert in retrograde extrapolation. Accordingly, we reverse and remand for a new trial in accordance with this opinion.

The Westlaw cite for this case is2008 WL 4712062.  We will provide a published cite if it becomes available.

ANALYSIS: In many states, the Per Se DUI law that was the subject of this case has language that the Per Se Limit (typically .08 or greater) just has to be proven within two hours of driving. Some states have legislation or caselaw that renders retrograde testimony irrelevant as long as the alcohol test sought to be admitted to prove the Per Se violation was obtained within 2 hours of driving.

This ruling is certainly good for the defense. However, if published, it may open the door to a higher court imposing a time limit of retrograde testimony. In my opinion, it is best for this case to remain unpublished for now.