with whom Douglas and Saitta, JJ., agree, concurring in part and dissenting in part:
I agree with the majority that Cotter v. State1 expresses the proper standard for NRS 484.3795(l)(a) in requiring that the State establish that the defendant was impaired to such a degree that he was incapable of driving safely. I further conclude that the district court erred in its finding that insufficient evidence was presented at the grand jury proceeding to bind Burcham over for trial on the State’s first theory that Burcham violated NRS 484.3795(l)(a) by driving under the influence and causing the victim’s death.2 I therefore concur with the majority on that issue.
As to the State’s second theory that Burcham had a BAC of 0.08 or more at the time of the collision, I would hold that the State presented insufficient evidence at the grand jury proceeding to establish probable cause that a “per se” violation of NRS 484.3795 occurred. In particular, I would abide by the holding in the Texas Court of Criminal Appeals case3 that the State may not rely on retrograde extrapolation unless it presents an expert to testify on the technique as well as the many variables involved. Even though the Texas case involved evidence of retrograde extrapolation presented during a jury trial, I submit that the principles involved are equally valid at a grand jury proceeding or a preliminary hearing. I do not believe the district court committed substantial error by granting Burnham’s petition for a writ of habeas corpus on the State’s theory that Burcham had a BAC of 0.08 or more at the time of the collision.4 I therefore dissent from the majority’s decision to reverse that portion of the district court’s order.
103 Nev. 303, 738 P.2d 506 (1987).
Sheriff v. Hodes, 96 Nev. 184, 186, 606 P.2d 178, 180 (1980).
Mata v. State, 46 S.W.3d 902, 915-16 (Tex. Crim. App. 2001), overruled on other grounds by Bagheri v. State, 87 S.W.3d 657, 660-61 (Tex. App. 2002).
Sheriff v. Provenza, 97 Nev. 346, 347, 630 P.2d 265, 265 (1981).