Thursday, July 27, 2006

‘Nicole’ too drunk to give her consent, says toxicologist

By Volt Contreras, Tarra Quismundo
ONE OF the four US Marines charged in the Subic rape trial submitted yesterday to a court order to have his blood sample taken for DNA comparison, a procedure earlier sought by the lawyers of Filipino complainant “Nicole.”

Also yesterday, a toxicologist presented by the prosecution as an expert witness said the amount of alcohol Nicole claimed to have imbibed shortly before the alleged rape was enough to render her too drunk to “defend herself” or “sense impending danger.”

“[In] my opinion, a person would not be able to give her consent [to sex] at that level,” Dr. Kenneth Go of the Philippine General Hospital replied when asked during direct examination how Nicole’s alcohol intake at the Neptune Club in the Subic Bay Freeport on the night of Nov. 1, 2005, could have affected her “capacity to resist a sexual attack.”

Before Go’s cross-examination could begin, Makati Judge Benjamin Pozon announced that Lance Corporal Daniel Smith’s blood extraction could proceed.

Pozon issued a ruling earlier in the day granting the prosecution’s motion to have the soldier’s DNA examined. Later in open court, he denied the oral motion for reconsideration of Smith’s lawyer Benjamin Formoso.

Two female officers of the Philippine National Police Crime Laboratory administered the 10-minute procedure on Smith inside the courtroom.

The soldier was moved from his usual seat in the gallery to a nearby table for the extraction.

The prosecution wants Smith’s DNA to be compared with the “male DNA profile” that, an expert witness from the PNP Crime Lab said last week, had been found on the panties Nicole wore on the night of the alleged rape.

Months before the landmark trial began in June, Smith admitted to having had sex with Nicole but claimed it was consensual.

Formoso yesterday told Pozon he would elevate to the Court of Appeals his objection to the DNA test conducted on his client.

The judge acknowledged that Formoso could indeed go to the CA, but said the test would still proceed in his court.

Go said the alcohol level in Nicole’s system was sufficient to cause “severe impairment of [her] cognitive ability [and] impairment of judgment.”

She would have difficulty “perceiving things, remembering things, controlling movement,” the doctor added during questioning by private prosecutor Evalyn Ursua.

Asked if Nicole would have been able, for example, to board a vehicle, Go said “no way” would a person in such a state do that “by herself.”

Unable to resist

She may “not be able to resist, or move voluntarily. She cannot sense impending danger or defend herself in response to that stimuli,” he said when asked by Ursua how alcohol would have affected Nicole’s capacity to defend herself against violence.

Go also said Nicole’s failure to remember some incidents, especially those which other prosecution witnesses earlier testified to, was “consistent” with the expected effects of alcohol on a person’s memory.

“Fragmentary amnesia may happen while drinking or upon cessation of drinking,” he said.

He also said “alcoholic blackouts” could happen to frequent or first-time drinkers.

But on cross-examination by defense lawyer Jose Justiniano, Go admitted that his studies on the alcohol content of Nicole’s drinks did not consider the fact that some of the cocktails had ice served with them.

“Yes, from a chemical perspective, water can dilute chemicals,” Go said.

The doctor tried to qualify his answers but was stopped by Justiniano, who said Go would have a chance to do that during redirect examination.


Go said he and six fellow toxicologists at the PGH arrived at a medical opinion after a study of Nicole’s possible intoxication level.

He said the complainant had 445.2 mg/dL (milligrams per deciliter) of alcohol in her blood.

Asked to define intoxication, Go gave both a scientific and a legal explanation:

“Intoxication is a spectrum. From a clinical perspective, you could be intoxicated with a small amount of alcohol, depending on how your body absorbs alcohol.

“We don’t have a legal definition of intoxication here but in [the United States], an 80 to 100 mg/dL of blood alcohol level is considered intoxication. More than 100 is considered severe intoxication.”

Go said the computation of Nicole’s intoxication level was based on witness accounts of her physical state and behavior at the Neptune and the drinks she had prior to the alleged rape. Several witnesses, Nicole included, had testified that she consumed two glasses of Vodka Sprite, a shot each of B52 and B53, a glass of Singapore Sling, half a glass of Long Island Iced Tea, and half a pitcher of Bullfrog.

Scientific formula

Go said he used a scientific formula that considered several factors, including the amount of alcohol in a given drink and the drinker’s ability to diffuse the alcohol depending on her metabolic rate and body weight.

The computation was cumulative, as Nicole’s blood alcohol level after one drink was factored in during the calculation of her intoxication level upon the next drink

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