In McBirney v. City of Tulsa, 1973 OK CR 35, 505 P.2d 1403 (Okla. Crim App. 1973), the Court of Criminal Appeals of Oklahoma affirmed the decision of the Tulsa Municipal Court to deny a new trial to a defendant who had been convicted of driving while under the influence of intoxicating liquor.
During the trial of this case, the prosecution called an expert witness who, "based upon a hypothetical question propounded by the prosecutor which included the blood test results and the defendant's conduct at the scene of the accident, opined that the defendant was under the influence of intoxicants." Id. at 1405.
During a hearing on the defendant's motion for new trial, the defense presented a qualified expert whose "testimony in substance was that, given the same hypothetical given to the State's expert . . ., coupled with the defendant's medical history . . ., this expert would be unable to form an opinion one way or the other that the defendant was or was not under the influence of intoxicants at the time mentioned."
The McBirney Court stated:
The third paragraph of the Syllabus in Ward v. State, Okl. Cr., 1968 OK CR 146, 444 P.2d 255 (1968), recites:
A motion for new trial upon the ground of newly discovered evidence is not sufficient where it only tends to discredit or impeach the witness for the State and especially where it would not change the result of the trial.
The ultimate purpose of having the defense expert testify would be to obtain his opinion that he would be unable to form an opinion of whether or not the defendant was intoxicated. This testimony would be diametrically opposed to the opinion of the State's expert. This evidence would be submitted for the purpose of discrediting the opinion of the State's expert. It, therefore, falls within the rule in Ward, supra. (505 P.2d at 1405.)