concurring:
Sereika’s conviction for driving under the influence of alcohol is based solely on NRS 484.379(l)(c), having a blood alcohol content of . 10 or more within two hours after driving or being in actual physical control of a vehicle. The jury rejected the other two grounds available under NRS 484.379(1) upon which a person may be found guilty of being under the influence of intoxicating liquor while driving. I do not believe that subsection (c) of this statute alone can be relied upon to establish guilt beyond a reasonable doubt. However, I find sufficient evidence in the record to establish that Sereika was legally intoxicated when operating his motorcycle pursuant to NRS 484.379(l)(b).
The evidence presented at trial established that at approximately 1:00 a.m. a compact car ran into the rear of Sereika’s motorcycle, tossing Sereika ten to fifteen feet forward onto the asphalt. One witness testified that Sereika appeared shaken immediately after the collision, but he did not smell any alcohol on Sereika’s breath. The person whose car ran into Sereika stated that he was disheveled and walking with a limp. The first officer at the scene testified that she smelled alcohol on Sereika’s breath and that he flunked three tests administered to determine whether he displayed indications of intoxication. Sereika told the investigating officer that he had three or four beers one-half hour earlier and had eaten a steak dinner an hour prior to the accident.
Sereika was taken to the Carson City jail and given two breath tests, one at 2:25 a.m. and the second one a minute later. He registered a .16 and .15 respectively on these tests. A criminalist testified that the intoxilyzer was properly calibrated and that the *152tests using the machine would have been valid. On cross-examination, Sereika’s attorney elicited from the criminalist that the average person will metabolize or burn off alcohol at the rate of .015 to .02 percent per hour, that alcohol is absorbed into the blood stream within one-half hour to one hour after drinking it, depending on whether it was consumed on an empty or full stomach, and that a 200 pound grown male adult like Sereika would have to consume seven to nine beers within two hours to reach a level of . 15. Other than the statutory section under which he was convicted, the criminalist’s testimony was the only evidence to show what blood alcohol content Sereika would have had at the time of the accident.
Two views have emerged from courts when faced with accepting a blood alcohol test result as presumptive or conclusive evidence of driving under the influence when no other expert testimony is presented to ascertain the driver’s blood alcohol content when the vehicle was operated. In Miller v. State, 597 So. 2d 767, 769-70 (Fla. 1991), the Florida Supreme Court stated:
The weight of authority is exemplified by State v. Kubik, 235 Neb. 612, 456 N.W.2d 487 (1990). In Kubik, the Nebraska Supreme Court held that the numerical blood-alcohol content was admissible evidence if obtained within a reasonable time after the defendant was stopped, even if the state cannot provide a scientific basis for extrapolating the blood-alcohol content back to the time when the defendant was operating a vehicle. The Kubik Court determined that the inability of the state to “relate back” was a question of credibility or the weight of the evidence, not admissibility, and that evidence of blood-alcohol content thus was admissible provided an unreasonable amount of time had not elapsed until the test was taken.
The other line of cases is exemplified by Desmond v. Superior Court, 161 Ariz. 522, 779 P.2d 1261 (1989). In that case, the Arizona Supreme Court held that the inability to “relate back” a defendant’s blood-alcohol content rendered the numerical reading of the test inadmissible because of its potential unreliability. However, the state still would be entitled to introduce evidence showing that, at the time the test was taken, the defendant tested positive for alcohol, provided the trial court gave a cautionary instruction. This instruction must inform the jury that the evidence of the presence of blood alcohol is admitted for the limited purpose of showing that the defendant had alcohol in the blood at the time the test was taken and that such evidence standing alone is not sufficient to show either that the defendant was *153impaired or had an unlawful blood-alcohol level at the time a vehicle was being operated.
I prefer the line of authority espoused by the Desmond case and the requirement that additional evidence should be presented to show that the accused was intoxicated when he or she was operating the vehicle as well as when the blood or breath test was taken. As the concurrence in the Miller case noted, the state should be required to prove each element of the crime beyond a reasonable doubt, and this includes the fact that the accused was intoxicated when driving a vehicle:
While I concur with the majority’s analysis as far as it goes, I do so subject to the reservations expressed in my partial dissent in Haas v. State, 597 So. 2d 770 (Fla. 1992) (Kogan, J., concurring in part, dissenting in part). I agree that tests conducted on a blood sample taken within a reasonable time are admissible evidence, under the terms noted by the majority. However, I also find that the State remains subject to the requirement of proving beyond a reasonable doubt every element of the ofifense. U.S. Const. Amend. XIV; art. I, § 9, Fla. Const.
Miller, 597 So. 2d at 770 (Kogan, J., concurring).
One federal court has expressed concern with a statute that presumes or directs that a person is guilty of driving while intoxicated based solely on a test taken some time thereafter. In McLean v. Moran, 963 F.2d 1306 (9th Cir. 1992), the Ninth Circuit Court of Appeals had difficulty with the application of Nevada’s law that presumed a person guilty of drunk driving if that person had a .10 or more blood alcohol content when tested after the accident. The court found that while the presumption may be valid if treated as a rebuttable presumption, it had been improperly applied as a conclusive presumption by the justice of the peace and, therefore, was unconstitutional. McLean argued, as did Sereika in the case at bar, that a blood alcohol level measured some time after a driver’s arrest may be higher than if the test had been conducted immediately upon arrest and that the correlation between a person’s blood alcohol level when driving and a blood alcohol test taken thereafter may fail the “beyond a reasonable doubt” standard necessary to convict in a criminal case. The court concluded:
Absent the statutory presumption, the testimony of the police criminalist and the evidence regarding McLean’s conduct at the time of her arrest may have failed to establish beyond a reasonable doubt that the [blood alcohol concentration] at the time of driving was at least 0.10%. Thus, *154McLean’s constitutional right to have the State prove every element of the crime beyond a reasonable doubt was violated by the conclusive presumption applied by the judge. Accordingly, McLean is entitled to habeas relief.
Although we decline to address the facial constitutionality of the statute, we note that, on its face, the type of presumption § 484.381(1) establishes is subject to varying interpretations. The statute may establish a mandatory conclusive or rebuttable presumption and thus raise serious constitutional questions, because the statute does not indicate that the factfinder is free to reject the presumption.
Id. at 1310-11.
The Nevada legislature responded to the McLean decision by eliminating the presumption of intoxication and replaced it with a law stating that a person is guilty of drunk driving if he or she has a blood alcohol content of .10 or more within two hours of driving a vehicle. To cure any problem that a presumption of intoxication presented in light of the McLean case, the legislature replaced it with a directive; and it seems that such corrective action is going from the frying pan into the fire. The real cure to the problem is to require that some additional evidence be required to show the correlation between the blood alcohol test taken hours after driving and the blood alcohol content when the accused was driving.
While no expert testimony was elicited to establish directly what Sereika’s blood alcohol content would have been at the time of the collision, the criminalist’s testimony provided sufficient information about the time it takes to absorb and metabolize alcohol to show that Sereika was intoxicated when driving pursuant to either NRS 484.379(1)(a) or (b). Therefore, this conviction is supported by credible evidence and does not rest solely on NRS 484.379(1)(c). Accordingly, I concur in the majority’s decision affirming the conviction.