dissenting.
In the case before us there was no evidence by which the alcohol content in the blood serum tested could be converted into a relevant content of alcohol by weight in the whole blood. Despite repeated objections to the evidence without conversion extrapolation in which defense counsel specifically called the attention of the trial court to the applicable case law, Melton v. State (1992) Ind.App., 597 N.E.2d 359, the court nevertheless overruled the objection and permitted the testimony to remain before the jury. It is clear that such conversion is essential to an appropriate consideration of alcohol content by weight as evidence of operating a vehicle while intoxicated under I.C. 9-30-6-15.
Here it is unquestioned that the testimony of Mr. Cosby, the State’s “expert”, was wholly erroneous insofar as he opined that a conversion of test results derived from testing plasma or serum was unnecessary and that there is no difference between testing blood serum for alcohol content by weight and testing whole blood. Melton, supra, 597 N.E.2d at 361, as quoted by the majority, clearly demonstrates the total lack of value of Cosby’s testimony, including the unfounded conclusion that Blinn’s blood alcohol content by weight was 0.292%, with regard to whether Blinn was operating the vehicle while intoxicated. In this regard, there can be little doubt that the blood alcohol evidence was offered by the State to establish prima facie evidence of driving while intoxicated pursuant to I.C. 9-13-2-131 and that the jury may have considered it for that purpose notwithstanding the fact that the jury was not so instructed.
The blood test evidence in this case should have been wholly disregarded insofar is it might be considered as evidence of intoxication. To be sure, the jury was not instructed as requested by the State that BAC evidence of at least .10% is prima facie evidence of intoxication. Certainly, it would have been reversible error to do so. However, absent a positive or negative instruction concerning such seemingly crucial evidence,3 the presence of that evidence in the case as the jury deliberated guilt or innocence might well have impacted the verdict. At a minimum, the posture of the case and the presence of such evidence could only have been confusing to the jury as to its probative effect.
In my view, the court should either have stricken the evidence or given a negative instruction concerning its consideration. It is the duty of the trial court to assist the jury in carrying out its solemn function to assess the evidence in light of the applicable law. See Ash v. State (1983) Ind.App., 455 N.E.2d 965; Cartwright v. Harris (1980) Ind.App., 400 N.E.2d 1192; Wolff v. Slusher (1974) Ind.App., 161 Ind.App. 182, 314 N.E.2d 758. Here, the jury was forced to make a determination in light of diverting and non-probative *56“facts” which could only confuse the matter before them for resolution.
In light of this circumstance, I am unable to conclude that the verdict was totally and properly based upon the remaining evidence. That the officer who investigated while Blinn was at the hospital stated that Blinn slurred his speech and had an odor of alcohol is insufficient to dispel my conclusion that, more probably than not, the BAC evidence contributed to the verdict.
I would reverse and remand with instructions to discharge the defendant.
. Here, there can be little doubt that since Blinn was not charged with operating a motor vehicle with a BAC of more than .10%, the State was clearly attempting to submit the blood test evidence under I.C. 9-13-2-131 to establish “prima facie evidence of intoxication”.