concurring:
I concur with the majority that because of the potential prejudice inherent in the presence on the jury of the husband of a secretary in the law offices of counsel for one of the plaintiffs the cases must be tried again. I cannot, however, agree with the majority’s discussion of evidence of the operator’s indulgence in alcoholic beverages prior to the accident, hence this opinion.
It is Jeep’s contention that the lower court erred in refusing to permit expert testimony to establish the driver’s intoxication. In Fisher v. Dye, 386 Pa. 141, 125 A.2d 472 (1956), the Pennsylvania Supreme Court declared:
*463. . while proof of intoxication is relevant where reckless or careless driving of an automobile is the matter at issue, the mere fact of drinking intoxicating liquor is not admissible, being unfairly prejudicial, unless it reasonably establishes a degree of intoxication which proves unfitness to drive.” Id. 386 Pa. at 148, 125 A.2d at 476.
Because of possible prejudice, the mere fact, standing alone, of consumption of alcohol or testimony that an individual was in a taproom or that he had alcohol on his breath is not admitted into evidence. See Billow v. Farmers Trust Co., 438 Pa. 514, 266 A.2d 92 (1970); Morreale v. Prince, 436 Pa. 51, 258 A.2d 508 (1969); Wentworth v. Doliner, 399 Pa. 356, 160 A.2d 562 (1960); Sentz v. Dixon, 224 Pa.Super. 70, 302 A.2d 434 (1973). These cases have recognized, however, that such facts, when combined with additional proof tending reasonably to establish intoxication, are admissible when relevant.
The relevance of blood alcohol test results to determine intoxication cannot seriously be questioned. The Motor Vehicle Code recognizes the admissibility of chemical analyses of blood and breath. Test results indicating that the amount of alcohol by weight in the blood is .10% or more creates a presumption that a criminal defendant was under the influence of alcohol. 75 Pa.C.S. § 1547(d)(3). The reliability and relevance of blood tests being thus recognized in criminal cases, I deem such evidence equally relevant when the question of intoxication arises in a civil action.
In the instant case, Jeep offered to prove that a blood alcohol test, administered to Dunn three hours after the accident, revealed a blood alcohol content of .12%. Jeep’s expert witness would have testified that an individual’s blood alcohol content decreases after drinking at the rate of .02% per hour. The expert would also have testified that since three hours elapsed between the time of the accident and performance of the test, Dunn’s blood alcohol content when the accident occurred would have been .18%, and Dunn therefore would have been “driving under the influence”.
*464It is a scientific fact that alcohol is absorbed into the bloodstream from 30 minutes to 90 minutes after consumption. Even if the jury believes the expert’s proffered testimony that one’s blood alcohol content decreases .02% per hour after drinking and that Dunn’s content was .12% when tested, they could still conclude that Dunn’s blood alcohol content did not peak at .18% at the time of the accident. In other words, Dunn’s blood alcohol level may have been increasing rather than peaking when the accident occurred, meaning that he had just consumed a quantity of alcohol minutes before the accident and that it did not affect his driving. This argument debates the weight to be given to the evidence, however, rather than its admissibility. All types of intoxication evidence may be challenged by conflicting evidence. It is the province of the jury to weigh all evidence and to decide the intoxication issue.
At the pretrial conference called to consider the admissibility of intoxication evidence, several supportive facts came to light. Jeep’s counsel indicated that a state trooper would testify that on arriving at the scene of the accident, he detected a strong odor of alcohol in the vehicle. In addition, it was brought to the court’s attention that the driver testified in a deposition that the group made four stops during their escapade and that the driver drank beer at each stop.
Considering the totality of the proffered intoxication evidence, I find that it could reasonably establish intoxication, thereby overcoming the hurdle of undue prejudice to the defendant, Dunn. While the evidence is not conclusive, it is sufficiently strong to permit the jury to consider it. I would remand for a new trial in both cases, consistent with this opinion.
SPAETH, J., joins this concurring opinion.