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Scientist spars with defense over driver's drinking before Scout crash

Thomas Murphy leaves Suffolk County Court in Riverhead

Thomas Murphy leaves Suffolk County Court in Riverhead during a lunch break on Monday. Credit: James Carbone

Suffolk County's chief toxicologist sparred Tuesday with the defense attorney for a Holbrook man over the amount of alcohol consumed by the driver before prosecutors say he drove drunk into a group of Boy Scouts, killing a 12-year-old boy.

Dr. Michael Lehrer, of the Suffolk Medical Examiner's Office, testified in a Riverhead court that he used a scientific technique known as "retrograde extrapolation" to determine that Thomas Murphy's blood alcohol content was 0.19% — more than twice the legal limit of 0.08% — at the time of the Sept. 30, 2018, crash in Manorville. 

Murphy refused repeated requests by a Suffolk police officer to take a Breathalyzer test at the crash scene to determine his blood alcohol level. Police officials obtained a warrant from a judge to collect Murphy's blood nearly four hours after the crash. The blood test, witnesses said, showed Murphy had a 0.13% BAC. Lehrer used the reverse extrapolation method to determine Murphy's BAC at the time of the crash.

Lehrer testified that based on Murphy's 350-pound frame, and that he did not eat a meal for several hours before the crash, it would likely take the equivalent of 12 and 14 "standard" drinks to account for a 0.19% BAC. He said a standard drink has about 1.5 ounces of liquor. In total, Murphy, 60, would have consumed between 18 to 21 ounces of 80-proof alcohol to achieve a BAC of that level, Lehrer said.

But defense attorney Steven Politi maintains that Murphy consumed between 4.25 and 6.75 ounces of vodka over a 2 1/2-hour period while playing golf with three friends at the Swan Lake Golf Course in Manorville on the day of the crash. 

Politi called Lehrer's calculations "impossible," suggesting that retrograde extrapolation was "junk science" based largely on guesswork and estimates.

Lehrer, testifying as an expert witness in the field of toxicology and retrograde extrapolation, stood behind his conclusions. He told a jury of seven men and five women that his analysis was sound and that all of the alcohol in Murphy's system had been fully absorbed at the time of the blood draw and would be evident in the final result. 

Lehrer added that there were "no irregularities" in the county's blood testing, dismissing Politi's contention that the sample may have been tainted by not being refrigerated until several hours after it was drawn.

"Everything worked as it should," Lehrer said of the work conducted by the Medical Examiner's Office, adding that the lab uses testing procedures that are the "gold standard" of the industry.

The three men who played golf with Murphy on the day of the crash have testified that the defendant had three vodka drinks. Two of the drinks, they said, came from an opened Svedka vodka bottle, filled between a third and a quarter of the way, that was brought to the course by one of Murphy's friends. The third drink came from an travel-sized vodka bottle, witnesses said.

It is unclear precisely how much vodka Murphy poured into his cup from the bottle and how much alcohol the two other golfers consumed. A fourth golfer testified that he does not consume alcohol and did not partake in the drinking. 

Prosecutors contend that Murphy crashed his white Mercedes SUV into a group of Scouts from Troop 161 hiking along the shoulder of David Terry Road, killing Andrew McMorris of Wading River and injuring three other Scouts. Politi argues that the scouts were "poorly supervised" by parents on the 20-mile hike and that the victims wandered onto the roadway, where they were struck by Murphy's vehicle.

Murphy has pleaded not guilty to a 16-count indictment charging him with aggravated vehicular homicide, assault and driving while intoxicated. If convicted, he faces 8 1/3 to 25 years in prison.

Politi raised questions about Lehrer's credentials — while he runs the department, he no longer personally conducts laboratory testing — and about the practice of retrograde extrapolation.   

For example, he noted that Dr. Alan Wayne Jones, a toxicology expert from Sweden, has written that “requests to back extrapolate a person’s BAC from sample time to driving time is a dubious practice because of the many variables and unknowns involved."

Earlier in the day, Politi asked Judge Fernando Camacho not to permit Lehrer's testimony, citing concerns about the technique's reliability. "This is not really science at all," Politi said.

Assistant District Attorney Brendan Ahern, chief of the Vehicular Crimes Bureau, argued that the jury should be able to determine the credibility of Lehrer's analysis.

"[The jury] has to analyze the facts and determine which facts they find to be the most reliable," Ahern said.

Camacho has permitted testimony about retrograde extrapolation in other cases, saying it is "based on sound scientific principles."

Lehrer's testimony was halted when he revealed that he had written notes earlier in the day about the case that were not turned over to prosecutors or to the defense. Lehrer was expected to turn over the notes Tuesday evening and to complete his testimony Wednesday.

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