Riverside Cross-Examination of Okorie Okorocha
Judge:
Thank you. Back on the record matter. Sir, you are still under oath.
Okorie Okorocha:
Yes, your honor.
Judge:
Ms. McCauley cross-examination?
Prosecutor Ms. McCauley:
Yes, your honor. Good afternoon, Mr. Okorocha.
Expert Witness Okorie Okorocha:
Good afternoon. Am I saying that correctly?
Expert Witness Okorie Okorocha:
Yes, you are.
Prosecutor Ms. McCauley:
You received both of master’s degrees from the University of Florida?
Expert Witness Okorie Okorocha:
Yes. We’re ranked like number 5 for public schools in the United States.
Prosecutor Ms. McCauley:
And during your master’s programs, how often were you in a laboratory?
Expert Witness Okorie Okorocha:
That’s a technician’s job. Someone with a master’s degree never gets paid to run the instrument, so you
have to know that, but that’s the least scientifically educated role in the lab, unless they have an
inventory person, receptionist or janitor. It is not something someone with my education would do.
Prosecutor Ms. McCauley:
So, you are saying that no one with a doctorate would ever do lab work, a doctorate in chemistry?
Expert Witness Okorie Okorocha:
I wouldn’t say never do lab work, but I’d be very suspicious if someone has a Ph.D. in chemistry like your
“expert” does and they’re working as a lab technician, I think that says a lot about their skills.
Prosecutor Ms. McCauley:
Okay. Now I noticed that you said that you work as a forensic toxicologist, so who do you work for?
Expert Witness Okorie Okorocha:
Well, forensic means for legal purposes, so people with cases, legal cases.
Prosecutor Ms. McCauley:
I’m just trying to make sure I understand what a forensic toxicologist is. That position for you at the
moment is testifying and working with lawyers.
Expert Witness Okorie Okorocha:
It’s a lot more working up things and explaining it and helping the lawyers understand the scientific
evidence.
Prosecutor Ms. McCauley:
But as a forensic toxicologist, are you doing any independent research separate from a legal case that
you’re working on?
Expert Witness Okorie Okorocha:
I’m not sure what you mean. In what sense? Am I dosing people with alcohol or something?
Prosecutor Ms. McCauley:
No. Are you doing research? Are you working on a paper?
Expert Witness Okorie Okorocha:
I work on papers. I’ve published several. I work on papers.
Prosecutor Ms. McCauley:
Well, your last paper based on the CV that was provided to me by a defense, your last paper publication
was in 2014, correct?
Expert Witness Okorie Okorocha:
That wasn’t my last publication, but
Prosecutor Ms. McCauley:
Is there one that wasn’t listed on your cv?
Expert Witness Okorie Okorocha:
I don’t remember. I got this case a really long time ago. I don’t remember what was on my cv, but there
should be one from 21.
Prosecutor Ms. McCauley:
Thank you, your Honor. So, to clarify, you do not have any certifications under Title 17?
Expert Witness Okorie Okorocha:
We laugh at people that say they have that. We call it a level two space shuttle license. We joke with
each other. Mr. Armendariz, do you have a level two space shuttle license? Objection,
Prosecutor Ms. McCauley:
Your Honor. Nonresponsive,
Judge:
Ask your next question.
Prosecutor Ms. McCauley:
You also testified earlier that as part of your experience, you have been experts on cases in the army or
military. I can’t recall which one it
Expert Witness Okorie Okorocha:
Was the Army and Navy.
Prosecutor Ms. McCauley:
And what were those cases regarding? What were you considered an expert in
Expert Witness Okorie Okorocha:
Japan? It was breath testing for alcohol. Germany was blood testing for alcohol and then in San Diego
and other places in the us drugs and or alcohol.
Prosecutor Ms. McCauley:
Do you happen to remember the case names or numbers of those cases in which you were considered
an expert by military or army or Navy?
Expert Witness Okorie Okorocha:
Yes.
Prosecutor Ms. McCauley:
Can you give me those?
Expert Witness Okorie Okorocha:
First name is Ryan, last name is [deleted]. That was in Japan and for Germany, It was specialist Lee
[deleted].
Prosecutor Ms. McCauley:
When you testified in those cases, were you testifying for the Army or Navy or were you testifying for
defense attorneys in that case?
Expert Witness Okorie Okorocha:
The Army and the Navy hire me on contracts to do that stuff.
Prosecutor Ms. McCauley:
So you were hired by the Army
Expert Witness Okorie Okorocha:
And the Navy? Yes.
Prosecutor Ms. McCauley:
Also on your CV you have listed that you have a Juris doctorate.
Expert Witness Okorie Okorocha:
Correct. We’ve all done things we’re not proud of.
[laughter]
Prosecutor Ms. McCauley:
Well, as a well, you are still actively using your Juris Doctorate. You are a criminal defense attorney,
correct?
Expert Witness Okorie Okorocha:
I am.
Prosecutor Ms. McCauley:
You are currently criminal defense Attorney.
Expert Witness Okorie Okorocha:
You’re incorrect.
Prosecutor Ms. McCauley:
So you were a criminal defense attorney?
Expert Witness Okorie Okorocha:
Well, for three out of the 20 years I’ve been licensed, if that’s significant enough. I don’t know if I could
still do all that, but I was able to at one point.
Prosecutor Ms. McCauley:
And while you were a criminal defense attorney, you did try D U I cases specifically.
Expert Witness Okorie Okorocha:
Correct? Absolutely.
Prosecutor Ms. McCauley:
You were actually considered Doctor D IJ I at one point. Right?
Expert Witness Okorie Okorocha:
No, that’s what you prosecutors called me and I adopted it because it’s the only thing you ever called me
that didn’t have cursing in it.
[laughter]
Prosecutor Ms. McCauley:
Mr. Okorocha, you spoke earlier that you testified earlier that you have experience with breathalyzer,
correct?
Expert Witness Okorie Okorocha:
A lot, yes.
Prosecutor Ms. McCauley:
You work for a, I wrote down a national breath test operator,
Expert Witness Okorie Okorocha:
Manufacturer.
Prosecutor Ms. McCauley:
A manufacturer,
Expert Witness Okorie Okorocha:
Yes. Okay.
Prosecutor Ms. McCauley:
What’s the name of that company?
Expert Witness Okorie Okorocha:
Prosecutor Ms. McCauley:
How long have you worked for that company?
Expert Witness Okorie Okorocha:
I haven’t worked in a while, but I’ve been on a contract for, I don’t know, seven years or something.
Prosecutor Ms. McCauley:
What do you do for that company?
Expert Witness Okorie Okorocha:
I review data that they need expert opinions on, on whether the results are artificially high or from
contamination and it’s a very competitive industry, so we’re always trying to find ways to improve the
instrument and seal up any flaws. So I test them on people with different medical conditions, different
heights and weights, different genders, ethnicities, tons of medical conditions, not just gastric bypass,
but say diabetes.
Prosecutor Ms. McCauley:
Do you run these tests in your own, do you have your own laboratory
Expert Witness Okorie Okorocha:
In San Diego? You
Prosecutor Ms. McCauley:
Do have your own laboratory’?
Expert Witness Okorie Okorocha:
Well, I don’t own it, but I work there
Prosecutor Ms. McCauley:
Now as working as an expert or forensic toxicologist expert, you’re not working for free, correct?
Expert Witness Okorie Okorocha:
I usually hope so, but I don’t always get paid. But.„.
Prosecutor Ms. McCauley:
What are you paying for your testimony today?
Expert Witness Okorie Okorocha:
I’m not paid for my testimony. I’m paid for my professional time. But, for example, the last two times I
testified it was completely free. So it’s not a matter of the money. In this case, I got $2,000 two years
ago, which is way below my appointed rate.
Prosecutor Ms. McCauley:
Yeah. Have you ever participated in a wet lab?
Expert Witness Okorie Okorocha:
I assume by wet lab you mean correlation study?
Prosecutor Ms. McCauley:
Yes
Expert Witness Okorie Okorocha:
I have, but those are of no moment. A correlation isn’t really important in science. It’s causation So
there’s a correlation between the rooster crowing and the sun coming out. Scientifically speaking, the
experiments would be to see if the rooster crowing causes the sun to come out, but correlation is just a
precursor to an experiment. Those experiments.
Prosecutor Ms. McCauley:
Your opinion as a scientist is that data that correlates has no scientific significance whatsoever?
Expert Witness Okorie Okorocha:
Not for real scientists, no. You want to have causation.
Prosecutor Ms. McCauley:
Does correlation not lead to causation?
Expert Witness Okorie Okorocha:
No. The rooster crowing. Well, maybe your witness said the rooster crowing would cause the sun to
come out, but no, there’s no correlation there.
Prosecutor Ms. McCauley:
Returning back to the question then, I suppose you have participated in a wet lab before?
Expert Witness Okorie Okorocha:
I have run them personally.
Prosecutor Ms. McCauley:
You have run them with what agency or organization?
Expert Witness Okorie Okorocha:
Los Angeles Public Defenders. That office
Prosecutor Ms. McCauley:
With the Los Angeles Public Defenders?
Expert Witness Okorie Okorocha:
Yes. Okay.
Prosecutor Ms. McCauley:
Have you ever had the opportunity to be a part of a, let me start with this. Are you familiar with the
term Ride-Along as it pertains to D IJ I investigations?
Expert Witness Okorie Okorocha:
Yes.
Prosecutor Ms. McCauley:
Have you ever had the opportunity to participate in a Ride Along?
Expert Witness Okorie Okorocha:
No one from my neighborhood would choose to get in a police car.
Prosecutor Ms. McCauley:
Is that a No?
Expert Witness Okorie Okorocha:
I wouldn’t, well, I wouldn’t get in the police car voluntarily,
Prosecutor Ms. McCauley:
So, no?
Expert Witness Okorie Okorocha:
No, not voluntarily, no.
Prosecutor Ms. McCauley:
Have you participated in a ride-along involuntarily?
Expert Witness Okorie Okorocha:
Oh, well I was falsely arrested for D U I when I had a 0.02 BAC, so yes, that was a ride-along of sorts, but
it wasn’t my idea.
Prosecutor Ms. McCauley:
Moving on into your opinions, into the opinions, some of the opinions you stated during your direct, you
stated at one point that NHTSA guidelines have a 50% false positive rate. Is that correct?
Expert Witness Okorie Okorocha:
I said that their standardized tasks, the physical ones, the walk and turn and one leg stand have a 50%
false positive rate when a real experiment’s done.
Prosecutor Ms. McCauley:
Where did you get that number from?
Expert Witness Okorie Okorocha:
I have the paper right here. It’s by Cole and Nowacyk and it’s called field sobriety tests. Are they
designed for failure and it discusses all of that.
Prosecutor Ms. McCauley:
Do you know of any other studies that back up that claim?
Expert Witness Okorie Okorocha:
Well, I think this one establishes it. I don’t know of any studies that make them valid and that’s what
we’d want know.
Prosecutor Ms. McCauley:
You’re unaware of any studies that validate NHTSA’s field sobriety tests?
Expert Witness Okorie Okorocha:
No. NHTSA claims they’re validated, but scientifically speaking, that’s a joke and borders on fraud.
Prosecutor Ms. McCauley:
So, you are aware of studies that do say NHTSA is 60, 70, 80% accurate depending on the
Expert Witness Okorie Okorocha:
Test? No, not scientific journals.
Prosecutor Ms. McCauley:
Do you know your number of 50% false positive is based on one study, correct?
Expert Witness Okorie Okorocha:
Yes. One study that was done correctly as opposed to the hundreds NHTSA did that were horribly
flawed.
Prosecutor Ms. McCauley:
But no other study since then has backed up or validated information?
Expert Witness Okorie Okorocha:
No. There have been other papers specifically by Dr. Greg Kain. I also wrote a paper that was peer-reviewed I don’t remember when, it was probably IO years ago on the field sobriety test that explained
how flawed they are. Even NHTSA says they don’t correlate to impairment.
Prosecutor Ms. McCauley:
Yes. And you’re aware though that NHTSA also states that typically in D IJ I investigations officers
aren’t relying entirely or only on field sobriety tests? Correct.
Expert Witness Okorie Okorocha:
I’m talking about the field sobriety tests. There can be a whole bunch of other facts you throw in there,
but I’m talking about the accuracy of the field sobriety tests themselves.
Prosecutor Ms. McCauley:
And in your opinion, can field sobriety tests be indicators to impairment impaired with other factors like
drinking time or driving pattens?
Expert Witness Okorie Okorocha:
I guess it would be very fact specific. I need the exact scenario.
Prosecutor Ms. McCauley:
Any other questions? Yes, I apologize. I need a moment. You testified earlier that regarding a
hypothetical scenario and that hypothetical scenario, it was going from a 0.0 8.07 to a 76 from a PAS
to a breath test, correct?
Expert Witness Okorie Okorocha:
Yes. Okay,
Prosecutor Ms. McCauley:
And in your testimony, you said those numbers are basically the same?
Expert Witness Okorie Okorocha:
I don’t remember saying that specifically, but I did say that if it’s a female who’s tested an hour apart,
she should be down about approaching 0.02 and in this case it was only 0.01. So there had to still be
some absorption going on
Prosecutor Ms. McCauley:
In that hypothetical the person had drank four hours prior to those tests, did that not affect your
opinion at all?
Expert Witness Okorie Okorocha:
When she drank is absolutely irrelevant. What I’m going by is what the blood alcohol was doing and
those are facts. It doesn’t matter if she says she drank a gallon of whiskey an hour ago or she said she’s
never had a drink In that factual scenario, she’s absorbing alcohol and it’s absorbing into the
bloodstream to make the numbers stay close together. But they’ve studied that in a psychological
literature. They have kids who are not going to be arrested or anything who are of age drinking at a bar
and they ask them how many drinks they think they had and when and everybody’s all over the place
completely wrong.
Prosecutor Ms. McCauley:
So it’s your opinion that, and I want to make sure that I’m getting this right, that somebody can have a
drink, a drink and three or four hours later still be absorbing that drink.
Expert Witness Okorie Okorocha:
Oh, that’s absolutely possible, but I wouldn’t put any weight in the factual scenario somebody gives
when they’re facing arrest and going to jail.
Prosecutor Ms. McCauley:
Well in this case, didn’t you rely on the police reports in making your opinion?
Expert Witness Okorie Okorocha:
I relied on what part specifically
Prosecutor Ms. McCauley:
Did you rely only on a particular part of the police report?
Expert Witness Okorie Okorocha:
No, I’m asking you what you thought. You’re asking me if I relied on the police report. In what sense?
There’s a lot of things in there. It doesn’t necessarily mean they are part of the calculus of her b a c.
Prosecutor Ms. McCauley:
It was part of what you relied on informing your opinion today.
Expert Witness Okorie Okorocha:
There were things in the police report that I used, yes.
Prosecutor Ms. McCauley:
What else did you use informing your opinion in terms of the facts of this case?
Expert Witness Okorie Okorocha:
I used all the scientific literature.
Prosecutor Ms. McCauley:
I suppose what I’m trying to get at is you just testified that you would’ve put a lot of credence into what
might be in a police report or what an officer might see at the scene, correct?
Expert Witness Okorie Okorocha:
I am not putting a lot of credence in the fact that when you’re, it’s four in the morning and you’re facing
a rest at night and you’re a female, you’re going to say you weren’t drinking at all probably.
Prosecutor Ms. McCauley:
I suppose then my follow up question is what, in terms of your opinion on this case, note.
Judge:
Ask a different question.
Prosecutor Ms. McCauley:
Do you produce a report in your work as in this case?
Expert Witness Okorie Okorocha:
I saw one in the file but I don’t remember writing it.
Prosecutor Ms. McCauley:
So you did not produce a report in
Expert Witness Okorie Okorocha:
This case? Apparently I did. I don’t remember it. I think it was a while ago. Lemme see. May 2nd, 2022.
Prosecutor Ms. McCauley:
So preparing that report, and correct me if I’m wrong in that report you say that you relied on the police
reports. Next question. Next question. Moving on to the field sobriety test and impairment specifically, I
suppose you stated on your direct that you don’t believe speeding is an indication of impairment.
Expert Witness Okorie Okorocha:
Correct? I’m saying NHTSA says it’s not an indication of alcohol impairment and she was driving the
vehicle perfectly very fast. That’s very hard. That’s the textbook definition of not being impaired for
purposes of driving.
Prosecutor Ms. McCauley:
So you would consider weaving within your lane, going all the way onto the right edge of the lane onto
the left edge of the lane. In your opinion you would consider that to be driving a vehicle perfectly
Expert Witness Okorie Okorocha:
Well it depends how much there was. The officer didn’t state that that’s what happened in his report or
at least I didn’t see that. Yes, your honor.
Prosecutor Ms. McCauley:
Sustained. Next question. Motion to strike. In your opinion, you would not consider the braking
consistently or erratically without any car in front of you that would not be in your opinion, any indicator
of control?
Expert Witness Okorie Okorocha:
I don’t recall that part of the factual scenario that she’s slamming on the brakes randomly. I don’t see, I
don’t remember that
Prosecutor Ms. McCauley:
Hypothetical scenario. Somebody’s driving and they are hitting the brakes without a vehicle in front of
them without any seating blockage in front of them just hitting their brakes at random points of time.
Seemingly no reason. You wouldn’t consider that to be an indicator or possible impairment?
Expert Witness Okorie Okorocha:
It’s not selective for impairment. There’s a whole lot of other things that can be going on. It could be an
attentiveness or fatigue or
Prosecutor Ms. McCauley:
When somebody is impaired, couldn’t they be considered inattentive?
Expert Witness Okorie Okorocha:
I couldn’t imagine somebody impaired driving a vehicle a hundred miles an hour.
Prosecutor Ms. McCauley:
In your experience as an attorney, as an expert, you have never encountered somebody who is under
the influence driving a hundred miles an hour.
Expert Witness Okorie Okorocha:
Well, I don’t want to conflate under the influence with impairment. Impairment is a deficit, but under
the influence just means it’s having an effect. So if you drink coffee in the morning, you’re more alert
when you’re going to work. You’re under the influence of the coffee. That doesn’t mean you’re impaired
for purposes of driving. Those are two very different things.
Prosecutor Ms. McCauley:
So in your work as an attorney or as an expert, you have never encountered a situation where
somebody is what you would consider to be impaired and driving at a hundred miles an hour?
Expert Witness Okorie Okorocha:
I don’t know. That’s not something I keep track of in my head.
Prosecutor Ms. McCauley:
You just stated that you don’t believe anybody who’s impaired could operate a vehicle at a hundred
miles an hour. Correct.
Expert Witness Okorie Okorocha:
It’d be exceptional. Really exceptional to be impaired and driving a hundred miles an hour and not crash
or anything. That would be amazing.
Prosecutor Ms. McCauley:
Now after you got the hypothetical, earlier you said that somebody has no issues operating a motor
vehicle under high speed, even a hundred miles an hour, that that’s the textbook and definition of not
impaired correct?
Expert Witness Okorie Okorocha:
Yes.
Prosecutor Ms. McCauley:
So, if that person is going you well, you also stated at some point that speeding isn’t necessarily unsafe
driving. Is that correct?
Expert Witness Okorie Okorocha:
I don’t remember saying that.
Prosecutor Ms. McCauley:
Would you consider speeding to be safe?
Expert Witness Okorie Okorocha:
There’s a whole lot of things that go into it. Is it on an open country road? Is it in downtown New York?
Traffic speeding can make things more dangerous because it cuts down on your reaction time
Prosecutor Ms. McCauley:
When somebody’s impaired. When somebody’s impaired, their reaction times could be slower, correct?
Expert Witness Okorie Okorocha:
They could if they really are impaired.
Prosecutor Ms. McCauley:
Let’s operate under that presumption Somebody is actually impaired. In your opinion, would their
reaction times be slow?
Expert Witness Okorie Okorocha:
They should be.
Prosecutor Ms. McCauley:
Okay. And would they potentially have difficulty multitasking?
Expert Witness Okorie Okorocha:
You mean using the phone and driving or what kind of multitasking? Doing
Prosecutor Ms. McCauley:
Two things at once? Yeah, using the phone and driving?
Expert Witness Okorie Okorocha:
Yes. That’s more difficult if you are impaired.
Prosecutor Ms. McCauley:
Would they have a similar difficulty doing two tasks like keeping their vehicle straight and keeping it at
the speed limit?
Expert Witness Okorie Okorocha:
Can you repeat the question please?
Prosecutor Ms. McCauley:
Would somebody who’s impaired have difficulty doing two tasks such as keeping a vehicle straight? So
paying attention to the road in front of them and keeping their vehicle at a reasonable speed, meaning
looking at their odometer at the same time going back and forth.
Expert Witness Okorie Okorocha:
I am confident people going fast know they’re driving fast I don’t think that’s an attentiveness at all.
Prosecutor Ms. McCauley:
Well, I’m asking about more about divided attention and ability to multitask than inattentiveness,
Expert Witness Okorie Okorocha:
Multitasking. Doing what?
Prosecutor Ms. McCauley:
Doing those two things.
Expert Witness Okorie Okorocha:
Sorry, using the phone and driving or something else.
Prosecutor Ms. McCauley:
I can move on. What I’m trying to get at and what I’m trying to understand is exactly what you would
consider to be driving that is indication that somebody is not operating at their full capacity, that
somebody is impaired. So would you consider somebody who is, and you wouldn’t consider somebody
who is driving a hundred miles an hour to be of concern in terms of impairment,
Expert Witness Okorie Okorocha:
Someone driving a hundred miles an hour and the officer doesn’t note any problems driving. That’s
pretty good driving and that’s very difficult. That’s not going to, that’s and that speeding is the absolute
opposite of what officers tend to see when you’re drinking. Usually driving too slow.
Prosecutor Ms. McCauley:
So with no other issues driving noted, change it. If other issues driving or noted issues like weaving
within your lanes and erratic braking, would that change your opinion?
Expert Witness Okorie Okorocha:
I guess it depends on what extent and what exactly happened.
Prosecutor Ms. McCauley:
Could it change your opinion?
Expert Witness Okorie Okorocha:
It’s possible.
Prosecutor Ms. McCauley:
Would it change your opinion if they were weaving it within a lane and stalking erratically? That’s the
note. That’s what you would receive.
Expert Witness Okorie Okorocha:
Okay. Can I see whatever it is in context?
Prosecutor Ms. McCauley:
You being asked a question, my question, so answer it
Expert Witness Okorie Okorocha:
Directly. Okay. What’s the question, please?
Prosecutor Ms. McCauley:
Would it change your opinion if in addition to an officer noting speeding a hundred miles an hour,
officer also noted that somebody was braking erratically seemingly no reason and weaving within their
lanes, riding the side of each lane with that change your opinion on whether that person might be
impaired,
Expert Witness Okorie Okorocha:
Not impaired. That has nothing to do with being impaired by alcohol. The speeding.
Prosecutor Ms. McCauley:
What about the other factors
Expert Witness Okorie Okorocha:
Such as the
Prosecutor Ms. McCauley:
Other two that I listed ad breaking and wea
Expert Witness Okorie Okorocha:
I’m not sure what that means, if that’s going a hundred miles an hour and then slamming the brakes or
what exactly is meant. I don’t know what exactly you mean by that.
Prosecutor Ms. McCauley:
Going back to the field sobriety test, you stated earlier that somebody who it might be difficult under
circumstances of A D U I investigation for somebody to understand instructions for field sobriety test,
Expert Witness Okorie Okorocha:
Correct. And do the field sobriety test? Yes.
Prosecutor Ms. McCauley:
And do the field sobriety test? Yes. Correct?
Expert Witness Okorie Okorocha:
Yes.
Prosecutor Ms. McCauley:
Would somebody who is impaired also have those difficulties?
Expert Witness Okorie Okorocha:
If you’re impaired, that means a deficit in performance, but it depends on the person, their tolerance
and everything. I understand there’s too many factors there.
Prosecutor Ms. McCauley:
Somebody’s performing one of these tests, walk and turn test, they’re unable to perform it to the
instruction. Would that to you indicate impairment?
Expert Witness Okorie Okorocha:
Absolutely not. That’s as good as flipping a coin Okay.
Prosecutor Ms. McCauley:
In addition, they have completed one leg stand test indicated the cues that NHTSA would that indicate
impairment with the walk turtle,
Expert Witness Okorie Okorocha:
Even NHTSA, the people that developed the test said it’s an unfortunate but undeniable fact that some
people can’t seem to find their own rear end with both hands while sober.
Prosecutor Ms. McCauley:
Isn’t it true though that mitts or are you aware that NHTSA says that if somebody has hits all the cues
during a horizontal gaze nystagmus that it’s 90% accurate?
Expert Witness Okorie Okorocha:
That’s a fraud and those statistics are not admissible in D U I trials.
Prosecutor Ms. McCauley:
Mr. Okorocha you said the NHTSA studies didn’t validate anything.
Expert Witness Okorie Okorocha:
Yes, it borders on fraud.
Prosecutor Ms. McCauley:
But you do know that they are called the “NHTSA validation studies” don’t you?
Expert Witness Okorie Okorocha:
I could name my son “King of Africa” but that doesn’t make it true.
Prosecutor Ms. McCauley:
Have you ever had an opportunity to do a police ride-along?
Expert Witness Okorie Okorocha:
No one from my neighborhood gets into a police car willingly.
Prosecutor Ms. McCauley:
So, you haven’t been on a police ride-along?
Expert Witness Okorie Okorocha: A ride along of sorts when I was falsely arrested with a 0.02 BAC, but
that wasn’t my idea to take a ride in the police cars.
Prosecutor Ms. McCauley: So you would never ride in a police car?
Expert Witness Okorie Okorocha:
Not by choice even if its just down the block.
Prosecutor Ms. McCauley:
And are you aware that NHTSA is a nationally recognized organization in highway and traffic safety.
Expert Witness Okorie Okorocha:
By whom?
Prosecutor Ms. McCauley:
In their title? Their name? National Highway Traffic Safety Administration.
Expert Witness Okorie Okorocha:
Well, I mean I could name my son King of Africa or something. That doesn’t mean that that’s,
Prosecutor Ms. McCauley:
You’re aware that criminal toxicology labs use NHTSA standards all over the country, correct?
Expert Witness Okorie Okorocha:
No. They’re used by police to determine whether to bring the person into the station for real testing.
Prosecutor Ms. McCauley:
And they’re used by police agencies all over the country,
Expert Witness Okorie Okorocha:
Correct. To determine whether to bring the person in for real testing.
Prosecutor Ms. McCauley:
And are they valid for that Purpose?
Expert Witness Okorie Okorocha:
No. There was a 50% false positive.
Prosecutor Ms. McCauley:
You also said specifically that at night it can be difficult for somebody understand the instructions as
they’re being told them they need to be in a controlled slow manner. Correct?
Expert Witness Okorie Okorocha:
I’m just saying I have concerns anytime any woman, let alone a small woman is surrounded by anybody
with a gun or anything at three in the morning on the side of the road, I’d have a lot of concerns about
what was going through her mind.
Prosecutor Ms. McCauley:
Mr. Okorocha? I’m just speaking generally I that you stated earlier that when somebody pulled over in
D U I investigation, you believe it may be difficult for them to understand instructions, correct?
Expert Witness Okorie Okorocha:
Yes. When they’re female and well anybody but on the side of the road you ask at four in the morning,
absolutely.
Prosecutor Ms. McCauley:
But is it also your opinion that somebody who is impaired would also have difficulty following
instructions?
Expert Witness Okorie Okorocha:
That’s the definition of being impaired is a deficit in performance. So if you tested them while sober and
then gave them alcohol and saw a difference, then you would have something to work with.
Prosecutor Ms. McCauley:
So in order to test somebody, you have to give them instructions, correct?
Expert Witness Okorie Okorocha:
Well, that’s the only way you have people doing, if you’re doing an experiment with 500 people, you
wouldn’t have ’em do 500 different things.
Prosecutor Ms. McCauley:
So to give a test, you’d have to give instructions, correct? Yes or no?
Expert Witness Okorie Okorocha:
Assuming that it’s one of those, there’s some tests, they throw something at you, the psychologists do
from the side, there’s no instructions. They’re just seeing how people will react or they use,
Prosecutor Ms. McCauley:
I apologize for interrupting, but I’m really just, it’s just a simple question If you were given a test, you
would want to have instructions,
Expert Witness Okorie Okorocha:
Correct? If I was getting a field sobriety test, I would prefer to have instructions. Okay.
Prosecutor Ms. McCauley:
So, in the scenario where an officer is trving to investigate A D IJ l, they would have to give instructions
at some point, correct?
Okorie Okorocha:
I would hope so. Okay.
Prosecutor Ms. McCauley:
Those instructions should be regulated, correct? Similar in every D U I investigation.
Expert Witness Okorie Okorocha:
Right? So everbody’s treated fairly
Prosecutor Ms. McCauley:
Supposedly, and that’s whether you agree with NHTSA standards or not. That’s what they do. They
ensure that everything is read off the same way, correct?
Expert Witness Okorie Okorocha:
Oh, well the instructions are supposed to be given the same way, but I’ve only seen him done the same
way with an officer reading them from a card. They all come out funny and different whenever an
officer just recite it. You’ve been on
Prosecutor Ms. McCauley:
Any ride-alongs, have you? We spoke about that earlier. You testified to that
Expert Witness Okorie Okorocha:
I’m not sure what that has to do with the question.
Prosecutor Ms. McCauley:
Can you answer the question? You have not been on any ride-alongs, correct?
Expert Witness Okorie Okorocha:
No, I never get in a cop car. I mean under no circumstances. Even if they said, do you want to ride down
the block? They’ve asked me that before or after a murder trial.
Prosecutor Ms. McCauley:
Objection. Non-responsive.
Judge:
Sustained. Just answer the question, Mr. Okorocha
Expert Witness Okorie Okorocha:
No.
Prosecutor Ms. McCauley:
Your Honor. There was no question pending. Mr. Rocha then in what circumstances have you had the
opportunity to review officers giving field sobriety tests in the field?
Expert Witness Okorie Okorocha:
When they had checkpoints, they were doing them unconstitutionally and so many lawyers went to
observe them day after day at the locations. They indicated they were going to be doing the
checkpoints, which are published ahead of time.
Prosecutor Ms. McCauley:
When was this?
Expert Witness Okorie Okorocha:
The last time? Yes, before the, I don’t think they’ve done any since the pandemic because they didn’t
really do field sobriety’ tests the same way.
Prosecutor Ms. McCauley:
If it was laywers going to these demonstrations, was it when you were still practicing law and taking
cases?
Expert Witness Okorie Okorocha:
What Lawyers?
Prosecutor Ms. McCauley:
That’s what you just stated. They had lawyers go to
Expert Witness Okorie Okorocha:
View? No, they had lawyers not drinking, but going to observe the field sobriety tasks and the
checkpoint to see if they’re being done in a constitutional manner.
Prosecutor Ms. McCauley:
So was that the capacity that you were there as a lawyer?
Expert Witness Okorie Okorocha:
Well, I was there as an observer. I wasn’t representing anybody, but I have legal training.
Prosecutor Ms. McCauley:
I suppose what I’m trying to get at is, I’m trying to understand when exactly you went to do these
observations.
Expert Witness Okorie Okorocha:
The last time was before the pandemic.
Prosecutor Ms. McCauley:
Are you aware that mitzvah has changed their guidelines?
Expert Witness Okorie Okorocha:
In what sense?
Prosecutor Ms. McCauley:
I am just asking if you’re aware of any changes in the guidelines since then. If you’ve kept up on them.
Expert Witness Okorie Okorocha:
These things haven’t changed. These tests have not changed. And it doesn’t matter what I see the
officers doing because that’s usually wrong. So it doesn’t really make any difference.
Prosecutor Ms. McCauley:
So you don’t take into consideration what the officers are doing.
Expert Witness Okorie Okorocha:
I’m saying these tests, there’s over a hundred kinds of nystagmus to be able to tell them apart. You need
an ophthalmologist or a neuro-ophthalmologist, somebody with 12 years of formal science education
and they still need to take a complete medical history. They need to find out every medication the
person’s taking. They need an cullo, which is somebody who videotapes the eye movements that they
can play over and over and over. And they need a nyst geometer for nyst geometry to measure the
eyeballs movements. That’s what it requires to determine which one of the hundred kinds of nystagmus
somebody actually had, no matter how well meaning the textbook state that an officer on the side of
the road who took a 10 day course or something is nowhere near qualified.
Prosecutor Ms. McCauley:
You say they need to have an ophthalmologist come out to the field to do a test?
Expert Witness Okorie Okorocha:
No, I’m saying just don’t do them because it doesn’t make sense.
Prosecutor Ms. McCauley:
Would an ophthalmologist be able to conduct them
Expert Witness Okorie Okorocha:
Not on the side of the road? No. They need a clinical setting with nyst geometry, O iconography and all
those things.
Prosecutor Ms. McCauley:
Are you aware that the American Ophthalmologist Association verified field sobriety tests as an
appropriate tests for horizontal nystagmus when conducted by officers who are trained in that matter?
Expert Witness Okorie Okorocha:
That is not true. And I can cite you to the leading ophthalmological reference textbook and it says
specifically,
Prosecutor Ms. McCauley:
Your Honor objection
Judge:
No, you asked for it. Go ahead Mr. Okorocha
Expert Witness Okorie Okorocha:
Unfortunately, the fact that alcohol can produce horizontal gazey nystagmus has led to a roadside
sobriety test conducted by law enforcement officers nystagmus as an indicator of alcohol intoxication is
fraught with extraordinary pitfalls. Many normal individuals have physiologic endpoint nystagmus, small
doses of tranquilizers that would not interfere with driving ability, can produce nystagmus. Nystagmus
may be congenital or consequent to structural, structural neurologic disease. And often a sophisticated
neuro-ophthalmologist or o iconographer is required to determine whether nystagmus is pathologic. It
seems unreasonable that such judgments should be the domain of cursorily trained law officers no
matter how intelligent, perceptive and well-meaning they might be.
Prosecutor Ms. McCauley:
Thank you. Can you give me that site for that paper please?
Expert Witness Okorie Okorocha:
It’s a textbook. It’s 20,000 pages long, but I only brought three with me. But yes, it’s Dwayne’s Clinical
Ophthalmology. It’s the leading ophthalmological reference textbook. Not only used to train
ophthalmologists or doctors. It’s used as a reference by practicing ophthalmologists.
Prosecutor Ms. McCauley:
Your honor, if I just have a moment to pull up, you can refer back to next question. Move on. So going to
this case or the hypothetical that you received in particular, female 5 7 1 15 pounds. Actually, strike that.
Are you familiar with, are you familiar with the device actually used in this case, the instrument?
Expert Witness Okorie Okorocha:
I own all of them that are used in California.
Prosecutor Ms. McCauley:
What about the particular device in this case?
Expert Witness Okorie Okorocha:
Not that particular device, but the models I have the 75 10, which is typically used here in Riverside.
Prosecutor Ms. McCauley:
And have you run experiments on that particular breathalyzer?
Expert Witness Okorie Okorocha:
Yes.
Prosecutor Ms. McCauley:
And at what BAC level would you consider somebody to be impaired
Expert Witness Okorie Okorocha:
From a pharmacologic or toxicologic perspective? You cannot do that. Goldfranks, for example,
toxicologic emergencies talks about people with a 0.30 that show no signs of impairment, but they’re
considered impaired legally speaking for purposes of driving.
Prosecutor Ms. McCauley:
So somebody with a 0.30 in your opinion, could operate a motor vehicle safely?
Expert Witness Okorie Okorocha:
I’m telling you that the leading toxicology reference tech, yes, in my opinion, I believe the medical
literature is much more reliable than the forensic literature because forensic people are typically on one
side or the other. The medical people don’t care. And when it’s in a textbook, it has to be very solid
information. It’s not like a journal article. It’s a lot harder to get in a textbook.
Prosecutor Ms. McCauley:
Aren’t journal articles, peer reviewed
Expert Witness Okorie Okorocha:
Textbooks? You need a lot more than just peer reviewed papers.
Prosecutor Ms. McCauley:
Is that textbook peer reviewed?
Expert Witness Okorie Okorocha:
You don’t peer review textbooks,
Prosecutor Ms. McCauley:
Right? Somebody just writes it and they can publish it as long as they find a publisher, correct?
Expert Witness Okorie Okorocha:
No. For it to gain national acceptance by all the emergency room physicians, it better be pretty good.
And it is. And
Prosecutor Ms. McCauley:
A journal article would need to be peer reviewed, correct?
Expert Witness Okorie Okorocha:
Yes. That’s the minimum you would want.
Prosecutor Ms. McCauley:
The NHTSA studies were all peer reviewed, correct?
Expert Witness Okorie Okorocha:
Wrong. That is absolutely incorrect. That is just plain false. None of them were. None.
Prosecutor Ms. McCauley:
Of the articles based on the NHTSA studies that are based on NHTSA field sobriety tests, none of those
have been peer reviewed.
Expert Witness Okorie Okorocha:
The NHTSA studies weren’t even studies.
Prosecutor Ms. McCauley:
My question is about articles that used the NHTSA studies. None of those have been peer reviewed to
the best of your knowledge.
Expert Witness Okorie Okorocha:
Yes.
Prosecutor Ms. McCauley:
No further questions
Judge:
Thank you. No redirect, your honor. Thank you, Mr. Okorocha, you are excused.
Expert Witness Okorie Okorocha:
Thank you.
