Intoxication Evidence Comes In

A woman suing defendants whose male Akita dog bit her on the arm and face will have to face her post-incident statement to animal control that she was “very intoxicated and did not remember a lot” about the incident; but the Chesapeake Circuit Court defers a decision on admitting possible expert testimony about alcohol being a stimulus to dogs.

In her motion in limine, plaintiff seeks to exclude any reference to plaintiff’s level of intoxication or whether the presence or odor of alcohol can be a stimulus that affects dogs. Plaintiff cites two grounds: 1) that there is no scientific basis or support upon which any such conclusion can be drawn, and 2) that plaintiff’s level of intoxication has no probative value to any material issue in this case.

At this stage, expert opinion regarding alcohol as a stimulus that affects dogs appears to be speculative. The court takes this issue under advisement. If defendant seeks to introduce this type of expert, the court will hear proffer and make a determination at trial.

Plaintiff also argued that based on Virginia law, evidence of plaintiff’s intoxication should be excluded, citing Hemming v. Hutchinson, 221 Va. 1143 (1981).

In Hemming, defendant admitted to drinking two to three beers the evening before an automobile accident. The investigating police officer testified that he did not detect the odor of alcohol on defendant’s breath or observe signs of intoxication as defendant walked. As such, no foundation existed to admit evidence of defendant’s alcohol consumption without evidence to establish without evidence to establish that it affected defendant’s driving at the time of the accident.

The facts here are distinguishable from Hemming. In this case, plaintiff admitted to an animal control officer that “she was very intoxicated and did not remember a lot,” and “she was not sure if she had tripped over the dog or not.” The foundation here is established by plaintiff’s own admission.

Also, intoxication is relevant in assessing plaintiff’s credibility to accurately recount the events of the dog bite incident and testify about them, especially if her testimony conflicts with the testimony of other witnesses.

Motion in limine is denied on this issue.

Hamrock v. Dunham (Smith) No. CL 11-913, Aug. 9, 2013; Chesapeake Cir.Ct.; John R. Fletcher, Raymond J. Sinnott III for the parties. VLW 013-8-084, 3 pp.