No. 83-54
I N THE SUPREME COURT O THE STATE OF M N A A
F OTN
1985
DONNA L. B-gRTEL, G u a r d i a n and
C o n s e r v a t o r o f BRUCE W. BARTEL,
an i n c a p a c i t a t e d person,
P l a i n t i f f and A p p e l l a n t ,
-vs-
STATE O F MONTANA,
D e f e n d a n t a n d Respondent.
APPEAL FROM: D i s t r i c t Court of t h e F i r s t J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f Lewis & C l a r k ,
The H o n o r a b l e Gordon B e n n e t t , J u d g e p r e s i d i n g .
COUNSEL O RECORD:
F
For Appellant:
M i c h a e l J. McKeon a r g u e d , Anaconda, Montana
Edward K. Duckworth a r g u e d , Ronan, Montana
F o r Respondent:
Roy Andes a r g u e d , Agency L e g a l S e r v i c e s B u r e a u ,
H e l e n a , Montana
Submitted: May 7 , 1 9 8 5
Decided: August 2 7 , 1 9 8 5
Filed:
s 198%
# i u c ~:
i!6zdL */- Clerk
e
Mr. J u s t i c e F r e d J. Weber d e l i v e r e d t h e o p i n i o n o f t h e C o u r t .
Plaintiff Donna L. Bartel, a s g u a r d i a n and c o n s e r v a t o r
of B r u c e F7. Bartel, an incapacitated person, brought this
negligence action against the State of Montana. After a
b e n c h t r i a l on t h e i s s u e o f liability, t h e Lewis and C l a r k
County D i s t r i c t C o u r t e n t e r e d judgment i n f a v o r o f t h e d e f e n -
d a n t S t a t e o f Montana. P l a i n t i f f appealed. By o p i n i o n d a t e d
January 2, 1985, this Court affirmed the judgment of the
D i s t r i c t Court. Two o f t h e j u s t i c e s who p a r t i c i p a t e d i n t h e
original case r e t i r e d from t h e C o u r t . Plaintiff petitioned
for rehearing. A rehearing was granted. We affirm the
judgment of the D i s t r i c t Court. We withdraw t h e o r i g i n a l
opinion dated January 2 , 1 9 8 5 , and s u b s t i t u t e t h i s o p i n i o n .
The i s s u e s a r e :
1. Did the District Court err in admitting into
evidence without adequate foundation the results of a
blood-alcohol test?
2. Are t h e D i s t r i c t C o u r t ' s f i n d i n g s o f f a c t 6 t h r o u g h
8 s u p p o r t e d by s u b s t a n t i a l c r e d i b l e e v i d e n c e ?
Bruce Bartel was severely injured in a motorcycle
a c c i d e n t which o c c u r r e d a b o u t 1:00 a.m. o n May 2 8 , 1980 a t a
highway j u n c t i o n on t h e n o r t h end o f S t . I g n a t i u s , Montana.
On t h e d a t e o f t h e a c c i d e n t , B a r t e l was 2 4 y e a r s o l d , weighed
318 p o u n d s , was 6 f e e t , 4 i n c h e s t a l l and was n o t p h y s i c a l l y
o r mentally impaired.
Rartel was a truck driver living in Ronan, Montana,
a p p r o x i m a t e l y 14 m i l e s n o r t h o f S t . I g n a t i u s . On t h e d a t e o f
t h e a c c i d e n t , B a r t e l had l i v e d i n Ronan f o r a b o u t 6 y e a r s and
had done at least a normal amount of occupational and
recreational traveling i n t h e Ronan a r e a b y m o t o r c y c l e and
four-wheel drive vehicle. Beginning in July 1979 and
c o n t i n u i n g t o t h e d a t e o f t h e a c c i d e n t , B a r t e l had d r i v e n by
St. I g n a t i u s about once a day w h i l e d r i v i n g a logging t r u c k
between Ronan and Thompson F a l l s . B a r t e l had a l s o v i s i t e d
S t . I g n a t i u s a t l e a s t twice during t h i s period of t i m e .
On t h e d a y o f t h e a c c i d e n t , B a r t e l d e v o t e d much o f h i s
t i m e preparing for a trucking t r i p scheduled t o begin the
n e x t day. H e a t e b r e a k f a s t a t a Ronan r e s t a u r a n t and l a t e r
a t e lunch a t a c a f e i n Pablo. Between 3:00 and 4:00 p.m.,
B a r t e l and a f r i e n d s t o p p e d a t W i l l a r d ' s B a r i n Ronan where
B a r t e l d r a n k two b e e r s . Sometime between 6:00 and 7:00 p.m.,
Bartel a t e dinner a t a local drive-in. S h o r t l y a f t e r 7:00
p.m., B a r t e l and two f r i e n d s p u r c h a s e d a s i x - p a c k o f b e e r and
d r o v e a r o u n d town, d u r i n g which t i m e B a r t e l d r a n k one b e e r .
Around 9:00 p.m., Bartel met two other friends, George
I
Mitchell and Gerald Cooper, at another Ronan bar, where
B a r t e l d r a n k a t l e a s t two d r i n k s c o n s i s t i n g o f s c o t c h whiskey
and w a t e r .
Shortly a f t e r this meeting, Bartel traded his pickup
truck for Mitchell's motorcycle. For the rest of the
e v e n i n g , B a r t e l d r o v e M i t c h e l l ' s m o t o r c y c l e , a 750 c c Yamaha,
and M i t c h e l l d r o v e B a r t e l ' s pickup. Cooper was r i d i n g h i s
own m o t o r c y c l e .
After this meeting and exchange of vehicles and
t h r o u g h o u t t h e rest o f t h e e v e n i n g u n t i l 1:00 a.m., the t r i o
visited various bars between Ronan and St. Ignatius.
Numerous witnesses testified at trial regarding how many
d r i n k s B a r t e l had a t e a c h b a r and w h e t h e r and t o what d e g r e e
he became intoxicated. Bartel argues that the testimony
e s t a b l i s h e s h e had no more t h a n 9 d r i n k s o f s c o t c h and w a t e r
between 9:00 p.m. and 1:00 a.m. The State contends the
e v i d e n c e e s t a b l i s h e s t h a t B a r t e l had a b o u t 15 d r i n k s between
9:00 p.m. and 1:00 a.m. and 18 d r i n k s t o t a l f o r t h e day.
The g r o u p e v e n t u a l l y headed s o u t h t o S t . I g n a t i u s . They
approached St. Ignatius from t h e n o r t h on U.S. Highway 93
( N e w Highway 93) b u t d r o v e p a s t t h e north entrance t o St.
Ignatius (Old Highway 93) and c o n t i n u e d s o u t h n N e w Highway
93 f o r a p p r o x i m a t e l y 3 / 4 m i l e t o t h e s o u t h e n t r a n c e t o S t .
Ignatius. A f t e r p l a y i n g p o o l and d r i n k i n g i n a S t . Ignatius
bar, Cooper and Bartel decided t o r e t u r n t o Ronan b e c a u s e
B a r t e l i n t e n d e d t o d e p a r t on h i s t r u c k i n g t r i p e a r l y t h e n e x t
morning.
B a r t e l and Cooper l e f t S t . I g n a t i u s o t h e motorcycles,
w i t h Cooper i n t h e l e a d and B a r t e l some d i s t a n c e b e h i n d . The
two d r o v e n o r t h on t h e main s t r e e t o f S t . I g n a t i u s , which i s
known a s "Old Highway 93." Old Highway 93 p r o c e e d s n o r t h and
i n t e r s e c t s a t an a c u t e a n g l e w i t h New Highway 93 on t h e n o r t h
edge o f S t . I g n a t i u s . New Highway 93 a p p r o a c h e s S t . I g n a t i u s
from t h e w e s t and t h a n s k i r t s S t . I g n a t i u s on t h e n o r t h w e s t
i n a sweeping c u r v e t o t h e n o r t h . B a r t e l ' s accident occurred
a t t h e i n t e r s e c t i o n o f Old Highway 93 and N e w Highway 93. A
diagram o f the intersection i s attached t o t h i s opinion a s
Appendix A.
The i n t e r s e c t i o n i s d e s i g n e d t o c h a n n e l n o r t h b o u n d Old
Highway 93 t r a f f i c t o t h e l e f t immediately a f t e r t h e f i r s t
large traffic island on the left side of the roadway.
T r a f f i c t h e n s t o p s a t a s t o p s i g n immediately b e f o r e t u r n i n g
r i g h t o r l e f t t o t r a v e l n o r t h t o w a r d Ronan o r s o u t h t o w a r d
Missoula. Rather than following t h i s channel t o t h e left
and h e e d i n g t h e s t o p s i g n b e f o r e t u r n i n g o n t o N e w Highway 93,
B a r t e l drove s t r a i g h t n o r t h along t h e e a s t s i d e o f t h e second
traffic island, apparently attempting to proceed straight
o n t o N e w Highway 93.
The n o r t h e r n t i p o f t h e s e c o n d t r a f f i c i s l a n d p r o t r u d e s
t o t h e e a s t i n t o what would o t h e r w i s e b e a s t r a i g h t l i n e o f
pavement from Old Highway 93 onto New Highway 93. The
p r o t r u s i o n a t t h e n o r t h e r n t i p o f t h e second t r a f f i c i s l a n d
a p p a r e n t l y was d e s i g n e d t o c h a n n e l n o r t h b o u n d Old Highway 93
t r a f f i c i n t o a r i g h t t u r n o n t o A i r p o r t Road, which e n t e r s a t
that point from the east, and to prevent traffic from
p r o c e e d i n g s t r a i g h t d i r e c t l y o n t o N e w Highway 93. As Bartel
drove through t h e i n t e r s e c t i o n , he s t r u c k t h e n o r t h e r n t i p o f
t h e t r a f f i c i s l a n d w i t h t h e m o t o r c y c l e , l o s t c o n t r o l and came
t o r e s t a b o u t 50 t o 60 f e e t n o r t h i n t h e b a r r o w p i t on t h e
r i g h t s i d e o f t h e highway.
Bartel was taken immediately to the St. Ignatius
hospital, where personnel quickly determined that the
s e r i o u s n e s s of h i s i n j u r i e s r e q u i r e d t r e a t m e n t i n M i s s o u l a .
The S t . I g n a t i u s H o s p i t a l n u r s e who a d m i t t e d B a r t e l made t h e
n o t a t i o n "intox." on t h e a d m i s s i o n form, along with noting
o t h e r symptoms. B a r t e l was t r a n s f e r r e d by ambulance t o S t .
Patrick's H o s p i t a l i n M i s s o u l a and a r r i v e d a t t h e emergency
room t h e r e a t a p p r o x i m a t e l y 3:30 a.m. Blood s p e c i m e n s w e r e
drawn and an IV was started. The treating neurologist
examined Bartel and concluded, among other things, that
Bartel was in a state of "alcoholic intoxication." A
blood-alcohol t e s t , p e r f o r m e d on B a r t e l s o l e l y f o r medical
purposes, i n d i c a t e d a blood-alcohol l e v e l of .I71 percent.
Rased upon the .I71 percent test result, expert witnesses
testified at trial that Bartel's blood-alcohol level was
between . l o 3 and .213 p e r c e n t a t t h e t i m e o f t h e a c c i d e n t .
The complaint sought damages for personal injuries
resulting from t h e m o t o r c y c l e a c c i d e n t a l l e g e d l y c a u s e d by
the State's negligence in design and maintenance of the
intersection and surrounding area. After extensive
discovery, the c a s e was tried before the Lewis and C l a r k
County D i s t r i c t C o u r t , s i t t i n g w i t h o u t a j u r y . T r i a l was on
t h e i s s u e of l i a b i l i t y only.
On J a n u a r y 9 , 1983 t h e c o u r t e n t e r e d f i n d i n g s o f fact
and conclusions of law. On January 18, 1983 t h e court
entered judgement in favor of t h e defendant. The c o u r t ' s
findings of f a c t included t h e following:
"6. A s a r e s u l t o f h i s c a s u a l t r a v e l i n g i n and
g e n e r a l knowledge o f t h e a r e a , o f h i s r e g u l a r t r i p s
by and i n c l o s e p r o x i m i t y t o t h e i n t e r s e c t i o n a t
which t h e a c c i d e n t o c c u r r e d and o f h i s v i s i t s t o
S t . I g n a t i u s , h e was t h o r o u g h l y f a m i l i a r w i t h t h e
i n t e r s e c t i o n i n q u e s t i o n and how t r a f f i c moved from
S t . I g n a t i u s t h r o u g h t h a t i n t e r s e c t i o n t o Highway
9 3 e n r o u t e n o r t h t o Ronan.
"7. On May 27, 1 9 8 0 , h e p u t i n a n o r d i n a r y d a y ' s
work u n t i l f o u r p.m., a t which t i m e and b e f o r e f i v e
p.m. he had two b e e r s . Between e i g h t and n i n e
p.m., a f t e r e a t i n g h i s s u p p e r , h e d r a n k a n o t h e r c a n
of beer. Between n i n e p.m. on t h e 2 7 t h a n d t h e
t i m e o f t h e a c c i d e n t a t o n e a.m. on t h e 2 8 t h h e
d r a n k n o t less t h a n n i n e and q u i t e p r o b a b l y t w e l v e
t o f i f t e e n d r i n k s c o n t a i n i n g undetermined amounts
o f s c o t c h whiskey.
"8. A t t h e t i m e o f t h e a c c i d e n t h i s blood stream
was c a r r y i n g between . l o 3 and .213 p e r c e n t a g e
a l c o h o l , which s e r i o u s l y i m p a i r e d h i s s e n s o r y and
mental functions, including sight, perception,
r e f l e x i o n , r e a c t i o n and r a t i o c i n a t i o n . "
Bartel challenges these three findings of fact.
In addition, t h e d i s t r i c t c o u r t found t h a t t h e n i g h t o f
the a c c i d e n t was dark b u t clear, the roadway was dry and
clear, and no o t h e r t r a f f i c was involved i n t h e accident.
The court found that the headlight on t h e motorcycle was
functioning normally and that all traffic signs could be
discerned clearly with t h e headlight. The c o u r t found t h a t
B a r t e l , a t a s p e e d o f 25 t o 30 m.p.h. and w i t h o u t b r a k i n g o r
decelerating, passed a c r o s s t h e r o a d ' s yellow d i v i d i n g l i n e
and the left lane, collided with the traffic separation
i s l a n d toward i t s n o r t h e n d , l o s t c o n t r o l of h i s motorcycle
and l a n d e d w i t h it i n a d i t c h on t h e r i g h t s i d e o f t h e r o a d .
The c o u r t found t h a t u n d e r t h e l i g h t and w e a t h e r c o n d i t i o n s
e x i s t i n g a t t h e t i m e o f t h e a c c i d e n t , an o r d i n a r i l y o b s e r v a n t
motor v e h i c l e o p e r a t o r t r a v e l i n g i n B a r t e l ' s d i r e c t i o n c o u l d
have s e e n from a d i s t a n c e o f n o t less t h a n 350 f e e t t h e end
o f t h e t r a f f i c i s l a n d which B a r t e l h i t and c o u l d h a v e s e e n
other indications of the proper route through the
intersection. The court found that if Bartel had been
d r i v i n g i n a r e a s o n a b l y c a r e f u l and p r u d e n t manner and n o t
u n d e r t h e i n f l u e n c e o f a l c o h o l , h e c o u l d have e a s i l y a v o i d e d
t h e c o l l i s i o n w i t h t h e t r a f f i c i s l a n d and t h a t B a r t e l was n o t
in any way "trapped" by highway design, signing or
maintenance.
Although t h e c o u r t found t h a t t h e d e s i g n , c o n s t r u c t i o n ,
s i g n i n g and m a i n t e n a n c e o f t h e i n t e r s e c t i o n was " d e m o n s t r a b l y
deficient in numerous respects and did not comport with
n a t i o n a l s t a n d a r d s o r even t h e S t a t e ' s own s t a n d a r d s , " t h e s e
d e f i c i e n c i e s were n o t found t o b e a c a u s e o f t h e a c c i d e n t .
The c o u r t n o t e d t h a t no o t h e r a c c i d e n t s a t t h i s i n t e r s e c t i o n
had been reported since 1969, when the traffic i s l a n d was
installed.
The court concluded that Bartel was negligent in
violating several t r a f f i c safety s t a t u t e s , including driving
while under the influence of alcohol. The court also
concluded that Bartel was negligent in failing to see a
h a z a r d which a r e a s o n a b l y p r u d e n t p e r s o n would see u n d e r t h e
circumstances o r , h a v i n g s e e n i t , i g n o r i n g it o r f a i l i n g t o
r e a c t t o it i n a r e a s o n a b l e and p r u d e n t manner. The c o u r t
concluded that Bartel's negligence was the s o l e proximate
cause of the accident. The c o u r t a l s o c o n c l u d e d t h a t any
negligence of the S t a t e was n o t i n any degree a proximate
cause of t h e accident. Bartel appeals.
I
Did t h e d i s t r i c t c o u r t err i n a d m i t t i n g i n t o e v i d e n c e
without adequate foundation t h e r e s u l t s of a blood-alcohol
test?
Bartel contends that evidence of blood-alcohol test
results was inadmissible because the State failed to
establish the required foundation for i t s admission, as
required by McAlpine v. Midland Electric Company (Mont.
1 9 8 1 ) , 634 P.2d 1166, 38 St.Rep. 1577. Bartel argues t h a t
a l t h o u g h less s t r i n g e n t f o u n d a t i o n a l s a f e g u a r d s a r e r e q u i r e d
f o r admissibi-lity o f blood test r e s u l t s i n c i v i l c a s e s than
in criminal cases, McAlpine n o n e t h e l e s s requires that test
p r o c e d u r e s a c c o r d w i t h "good p r a c t i c e i n t h e f i e l d " t o a s s u r e
reliable results. Bartel a l l e g e s numerous i n a d e q u a c i e s i n
the blood test procedure which h e contends a r e deviations
from good medical practice. He alleges these deviations
render the test results in this case unreliable. Bartel
contends there is no evidence other than the blood test
r e s u l t s t h a t h e was i n t o x i c a t e d o r i m p a i r e d i n h i s a b i l i t y t o
drive. Because the State's defense depended upon showing
t h a t B a r t e l was i n t o x i c a t e d , B a r t e l a r g u e s t h a t t h e e r r o n e o u s
admission of Exhibit X I t h e l a b r e p o r t containing t h e blood
test results, was extremely prejudicial and constitutes
reversible error.
A review of the detailed foundation testimony is
appropriate here.
Three h o s p i t a l employees testified at trial regarding
Bartel1s blood test and routine blood test procedure.
B a r b a r a Westphal-Marcus, a n R.N. who p a r t i c i p a t e d i n B a r t e l ' s
emergency room treatment, charted the treatment Bartel
received. The c h a r t showed t h a t a n I V was s t a r t e d a t 3:30
a.m. and that the drug mannitol was administered at 3:35
a.m., a l t h o u g h t h e c h a r t d i d n o t show s p e c i f i c a l l y when b l o o d
was drawn. However, Westphal-Marcus testified that as a
m a t t e r o f r o u t i n e p r a c t i c e , b l o o d i s drawn f o r t e s t i n g when
an IV is started. She described routine procedure for
s t a r t i n g a n I V and d r a w i n g b l o o d f o r alcohol testing: the
patient 's arm is prepped with betadine, a non-a l c o h o l i c
s o l u t i o n ; t h e n e e d l e and c a t h e t e r a r e i n s e r t e d ; t h e n e e d l e i s
then removed from the catheter; before the blood-drawing
s y r i n g e i s i n s e r t e d i n t o t h e c a t h e t e r , b l o o d i s s p i l l e d from
the catheter; t h e s y r i n g e i s i n s e r t e d a n d 10 c c ' s o f b l o o d
are drawn; the blood is put immediately into two tubes,
marked with the patient's name and ER chart number, and
handed t o t h e l a b t e c h n i c i a n .
Westphal-Marcus t e s t i f i e d s h e was p r e s e n t when B a r t e l ' s
b l o o d was drawn. She s t a t e d t h a t b a s e d on r o u t i n e p r a c t i c e ,
Bartel's blood was drawn at 3:30 a.m. when the IV was
started. Responding to questions from the court, she
indicated that nothing unusual had been done in Bartel's
case. While betadine is usually used f o r p r e p p i n g where
alcohol testing is anticipated, Westphal-Marcus could not
s t a t e w i t h c e r t a i n t y t h a t i s o p r o p y l a l c o h o l was n o t u s e d on
this occasion. However, she stated that t h e blood spill
which occurs before the syringe is inserted and b l o o d is
drawn would remove any t a i n t c a u s e d by u s e o f a n i s o p r o p y l
alcohol prepping solution. She n o t e d t h a t i n B a r t e l ' s c a s e a
l a r g e c a t h e t e r was used and a l o t o f b l o o d was s p i l l e d . She
concluded that good medical practice was used in drawing
B a r t e l ' s b l o o d and t h a t t h e t e s t r e s u l t s w e r e r e l i a b l e .
L e i l a n i Heuer i s t h e l a b t e c h n i c i a n who t e s t e d B a r t e l ' s
blood. She recognized and identified Exhibit X as an
a c c u r a t e copy o f the l a b r e p o r t s h e had p r e p a r e d from t h e
original test printout and signed the night of Bartel's
accident. Heuer d e s c r i b e d f o r t h e c o u r t t h e r o u t i n e t e s t i n g
p r o c e d u r e employed. s h e s t a t e d t h a t t h e t e s t i n g machine i s
calibrated before t h e f i r s t test of every night a s a matter
of routine practice. She produced at trial t h e record of
c a l i b r a t i o n f o r t h e day o f B a r t e l ' s blood t e s t . She s t a t e d
t h a t q u a l i t y c o n t r o l t e s t i n g i s done e v e r y d a y , b u t r e c o r d s
o f t h a t t e s t i n g a r e k e p t f o r o n l y one y e a r . Heuer t e s t i f i e d
t h a t i s o p r o p y l a l c o h o l would i n t e r f e r e w i t h t e s t r e s u l t s o n l y
i f t h e p a t i e n t had i n g e s t e d i t , and t h a t i n h e r e x p e r i e n c e
negative test results had occurred even though isopropyl
a l c o h o l had been u s e d t o p r e p a r e t h e p a t i e n t ' s skin for the
blood drawing. Heuer s t a t e d t h a t o r i g i n a l machine p r i n t o u t s
for s p e c i f i c tests are not kept, but that if t h e machine
p r i n t o u t had i n d i c a t e d a n y e r r o r , s h e would have r e p e a t e d t h e
test u n t i l receiving error-free r e s u l t s .
Chief Lab Technician Opal Spradlin's deposition was
s t i p u l a t e d i n t o evidence i n l i e u of testimony. She s t a t e d
t h a t t h e d r a w i n g o f b l o o d f o r a l c o h o l t e s t i n g i s u s u a l l y done
without use of isopropyl alcohol a s a cleansing agent. She
noted that all hospital personnel who could have drawn
Bartel's blood were professionally competent. Spradlin
concluded that test procedures accorded with good m e d i c a l
p r a c t i c e t o a s s u r e r e l i a b l e medical r e s u l t s .
James D. Hutchinson, a c l i n i c a l t o x i c o l o g i s t experienced
i n blood-alcohol testing, l i s t e n e d t o Heuer's t e s t i m o n y and
testified the hospital's t e s t i n g methods a r e a c c u r a t e . Dr.
Kenneth H. Mueller, a forensic pathologist, testified that
use of i s o p r o p y l a l c o h o l would a f f e c t t e s t r e s u l t s o n l y i f
something distinctly abnormal or incompetent was done in
drawing t h e blood. I f normal p r e p p i n g p r o c e d u r e was f o l l o w e d
using isopropyl alcohol, the i s o p r o p y l would result in no
measurable d i f f e r e n c e . He testified t h a t a t e s t on b l o o d
serum as opposed to whole blood would yield a maximum
d i f f e r e n c e o f o n l y 2-3 p e r c e n t . Mueller s t a t e d t h a t i f t h e r e
had been any significant possibility of error in Bartel's
b l o o d t e s t , it would have been c a l l e d t o s o m e o n e ' s a t t e n t i o n .
I n McAlpine v. Midland E l e c t r i c Company (Mont. 1981),
6 3 4 P.2d 1166, 38 St.Rep. 1577, t h e a p p e l l a n t r a i s e d s e v e r a l
arguments r e g a r d i n g foundation f o r admission of blood-alcohol
test r e s u l t s which are similar t o those raised by B a r t e l .
There, appellant argued t h a t t h e proponent o f t h e evidence
had f a i l e d t o show t h a t post-mortem blood clotting did not
r e s u l t i n a h i g h e r b l o o d - a l c o h o l r e a d i n g ; f a i l e d t o show t h a t
the procuring and testing of the samples followed the
procedures s e t o u t i n t h e A d m i n i s t r a t i v e R u l e s o f Montana;
failed to show the blood tested came from the victimsf
bodies; and failed to produce the gas chromatograph records
which recorded the test results. 634 P.2d at 1170, 38
St.Rep. at 1582.
In McAlpine, this Court held that procedures required by
administrative rule where results are to be used in a
criminal prosecution are not required for admissibility of
test results in a civil trial. In so holding, we quoted from
Bach v. Penn Central Transportation Company (6th Cir. 1974) ,
502 F.2d 1117, which stated that while test procedures for
civil trial use need not comply with criminal case statutory
procedures, l1 'they must accord with good practice in the
field to assure reliable results.11' McAlpine, 634 P.2d at
1171, 38 St.Rep. at 1583, quoting Bach, 502 F.2d at 1121. We
concluded that testimony in that case "established that the
procedures employed followed good practice in the field. "
634 P.2d at 1171, 38 St.Rep. at 1583-84. We adhere to that
test today.
Rule 406(b), M.R.Evid. provides that "[elvidence of
habit or of routine practice, whether corroborated or not,
and regardless of the presence of eyewitnesses, is relevant
to prove that conduct on a particular occasion was in
conformity with the habit or routine practice." l1 Routine
practice" is defined as "a regular course of conduct of a
group of persons or an organization." Rule 406 (a), M.R.Evid.
Hospital personnel and medical experts testified at
length of the routine medical practices employed at the
hospital in drawing and testing blood for alcohol content.
These witnesses also testified at length as to whether those
practices accord with good medical practice. With the single
exception of Bartel1s expert witness, all witnesses
testifying on this point agreed that the procedures employed
were in accordance with good practice and yielded reliable
and accurate results. During the extensive foundation
testimony heard prior to admission of Exhibit I, the
experienced trial judge questioned the witnesses in detail on
various points. In response to a question from the court,
Westphal-Marcus indicated she believed that the blood drawing
procedure used in Bartel's case did not deviate from routine
hospital procedure. Further, Heuer stated that she performed
the Bartel blood test using good, reliable procedures. The
above testimony, together with testimony specifically
relating to Bartel's blood test, was relevant and provided
adequate foundation to support admission of Exhibit X.
We hold that the record contains substantial credible
evidence to show that the test procedure employed in this
case accorded with good medical practice to assure reliable
results.
Bartel vigorously emphasizes those portions of the
testimony which he argues support his contention that the
blood test results were inadmissible. He argues the
necessary foundation was not established because the State
failed to establish certain facts which he argues are
essential to admissibility of the results. We will discuss
each of these contentions in light of the record.
1. Bartel argues that the State's failure to identify
positively the person who drew Bartel's blood precludes
admissibility of the test results. The testimony of R.N.
Westfall-Marcus established that she was present for the
drawing of the blood specimens from Bruce Bartel as was Bill
Kirk, R.N., Jackie Clausen, Night Supervisor, and the medical
doctor. While she was present at the time of the blood
drawing, she could not recall whether she or Nurse Kirk had
drawn the blood sample. She did testify at length regarding
the procedure customarily followed in the drawing of blood.
Her testimony and that of other witnesses established that
the two registered nurses were both qualified to draw blood
and were both familiar with routine hospital practices.
Nurse west fall-Marcus completed a portion of the emergency
room records with regard to the treatment of Mr. Bartel,
particularly the cross-matching of blood and the ordering of
the blood test. The routine procedure used by Nurse
Westfall-Marcus and other nurses in the hospital was
established without contradiction. There is nothing in the
written records to indicate any deviation from these proce-
dures. Nurse Westfall-Marcus testified there was no
deviation from routine procedures. Mere inability to recall
which of two registered nurses completed this particular
blood test after a lapse of two years is not a sufficient
basis to challenge the admissibility of the blood test
itself. While it would have been preferable that the name of
the nurse withdrawing the blood be shown on the emergency
room records, Nurse Westfall-Marcus indicated they were so
busy taking care of the severely-injured patient, Bartel,
that this had not been placed on the records. The testimony
established the very large number of blood tests conducted by
hospital personnel and by Nurse Westfall-Marcus in the course
of emergency room operation. Under the circumstances of this
case, the failure to establish which of two registered nurses
withdrew the blood does not preclude admissibility of the
test results.
2. Bartel contends that the State failed to establish
the time when the blood was drawn. He argues this is
critical because it must be shown that administration of
mannitol did not interfere with test results, and also be-
cause time of blood drawing is critical to the accuracy of
calculations made by experts to determine the degree of
intoxication at the time of the accident. The time of the
blood drawing is certainly a significant fact. Nurse
Westfall-Marcus t e s t i f i e d t h a t the records did not disclose
s p e c i f i c a l l y t h e t i m e o f t h e blood drawing, b u t only e s t a b -
l i s h e d t h a t t h e I.V. was commenced a t 3 : 3 0 and t h a t m a n n i t o l
was given t o Mr. Bartel at 3:35. She t e s t i f i e d that the
r o u t i n e p r a c t i c e , which s h e f o l l o w e d and which was f o l l o w e d
by other nurses in the hospital, would have required the
withdrawal of t h e blood p r o m p t l y a f t e r t h e commencement o f
t h e I.V. and p r i o r t o t h e g i v i n g o f m a n n i t o l . The t e s t i m o n y
o f L e i l a n i Heuer, t h e l a b t e c h n i c i a n who c o n d u c t e d t h e b l o o d
test, established that s h e completed h e r t e s t at 4:30 and
t h a t it would h a v e t a k e n h e r n o t l e s s t h a n o n e - h a l f hour t o
complete t h e t e s t . While t h a t e v i d e n c e d o e s n o t i n d i c a t e a
s p e c i f i c t i m e , it d o e s c o n f i r m t h e p r o b a b i l i t y t h a t t h e b l o o d
was withdrawn between 3 : 3 0 and 4 : 0 0 a.m. The f i n d i n g s on t h e
part of t h e D i s t r i c t Court i n d i c a t e t h a t it concluded t h a t
t h e b l o o d was drawn a t c l o s e t o 3 : 3 0 a.m., when t h e I . V . was
begun. There i s c e r t a i n l y s u b s t a n t i a l evidence t o s u p p o r t
that conclusion. There is in fact no evidence to the
c o n t r a r y , b u t o n l y t h e s p e c u l a t i o n r a i s e d by M r . Bartel. We
conclude that the argument of Mr. Bartel that there was
m a n n i t o l i n t e r f e r e n c e must a l s o f a i l .
3. Bartel argues that the State's failure to
demonstrate t h a t a non-alcoholic s o l u t i o n was u s e d for skin
preparation is fatal to the test result's admissibility.
Nurse W e s t f a l l - M a r c u s testified that the routine practice is
to use Betadine, a non-alcoholic solution, when alcohol
testing is anticipated. However, s h e c o u l d n o t s p e c i f i c a l l y
remember t h e n a t u r e o f t h e s o l u t i o n u s e d on M r . Bartel. She
did explain in detail the nature of the I.V. which was
s t a r t e d , p o i n t i n g o u t t h a t a f t e r making a v e n i - p u n c t u r e , the
needle i s withdrawn from t h e catheter with t h e tourniquet
s t i l l on t h e arm s o t h e r e i s a s i g n i f i c a n t s p i l l i n g o f b l o o d
on t h e f l o o r b e f o r e t h e s y r i n g e i s i n s e r t e d , a t which t i m e
the 10 c c . I s of blood a r e taken out f o r t e s t i n g purposes.
She c o n c l u d e d t h a t even i f a l c o h o l had been used t o swab t h e
arm p r i o r t o t h e commencement o f t h e I . V . , s o much b l o o d was
s p i l l e d t h a t s h e d i d n o t b e l i e v e t h e r e c o u l d h a v e b e e n any
contamination. Dr. Mueller, forensic pathologist, testified
that he had done studies on the effect of the use of
i s o p r o p y l a l c o h o l swabs on t h e measurement o f e t h e l a l c o h o l .
Dr. Mueller testified he had found the o n l y way it would
affect the ethel alcohol result was if the needle was
withdrawn t h r o u g h t h e s p o n g e w i t h t h e s u c t i o n s t i l l o n o r , i n
o t h e r words, t h e doing of s o m e t h i n g d i s t i n c t l y abnormal o r
incompetent i n withdrawing t h e blood. He testified that in
the ordinary way of preparing an arm for example with
alcohol, "isopropyl a l c o h o l simply d i d n o t g i v e measureable
amounts o f a l c o h o l . " I n a d d i t i o n , he t e s t i f i e d t h a t t h e drug
m a n n i t o l i s n o t a n i n t e r f e r i n g s u b s t a n c e w i t h t h e method o f
alcohol testing used in the present case. We, therefore,
conclude t h a t a f a i l u r e t o demonstrate t h a t a non-alcoholic
s o l u t i o n was u s e d is not f a t a l t o t h e a d m i s s i b i l i t y of the
blood t e s t .
4. Rartel argues that the State failed to show t h a t
Bartel's abnormal body chemistries did not i n t e r f e r e with
test results. However, the record contains nothing,
indicating that body chemistries actually affected test
results.
5. Bartel contends that the test results are
i n a d m i s s i b l e because t h e S t a t e f a i l e d t o produce t h e o r i g i n a l
t e s t machine p r i n t o u t and f a i l e d t o p r o d u c e q u a l i t y c o n t r o l
records. F a i l u r e t o produce t h e o r i g i n a l test p r i n t o u t does
not preclude admissibility of test results. S e e McAlpine,
6 3 4 P.2d at 7171-72, 38 St.Rep. at 1584. Heuer t e s t i f i e d
t h a t E x h i b i t X was t h e l a b r e p o r t s h e p r e p a r e d by r e c o r d i n g
test r e s u l t s . Further, she stated s h e would h a v e r e p e a t e d
t h e t e s t if n e c e s s a r y t o g e t a n e r r o r - f r e e r e s u l t . Heuer and
Spradlin testified that the hospital routinely followed
q u a l i t y c o n t r o l procedures, preventive maintenance procedures
and d a i l y c a l i b r a t i o n p r o c e d u r e s . W e f i n d no m e r i t i n t h e s e
contentions.
6. Finally, Bartel argues t h a t t h e test r e s u l t s w e r e
inadmissible because t h e State f a i l e d t o show t h a t t e s t i n g
serum r a t h e r t h a n whole b l o o d d i d n o t a f f e c t t e s t r e s u l t s and
f a i l e d t o show t h a t more t h a n one b l o o d sample was t e s t e d .
O the contrary, Dr.
n Muel l e r t e s t i f i e d t h a t t e s t i n g o f serum
r a t h e r t h a n whole b l o o d was n o t s i g n i f i c a n t b e c a u s e i t c o u l d
account for error of no more than 2-3 percent in test
results. F u r t h e r , he s t a t e d t h a t m u l t i p l e t e s t samples w e r e
unnecessary for accurate results. We reject these
contentions.
Despite Bartel's vigorous argument as to the
significance of the alleged omissions in foundation
testimony, Bartel has failed to establish any actual
inadequacy in the blood test procedure which affects
admissibility of t h e blood test r e s u l t s . I n McAlpine, we
found it significant that the appellant had presented no
evidence to support his contention that post-mortem blood
c l o t t i n g seriously affected test results. We stated that a t
most, t h e a p p e l l a n t had laid a b a s i s f o r a suggestion t h a t
the condition of t h e victims' b l o o d had changed between t h e
time of death and the time of drawing the blood. We
concluded that " [sluch a suggestion goes to weight, not
admissibility." 6 3 4 P.2d a t 1171, 38 St.Rep. a t 1583.
I n a s i m i l a r manner, B a r t e l h a s a t most l a i d t h e b a s i s
f o r a v a r i e t y o f s u g g e s t i o n s t h a t B a r t e l ' s blood t e s t r e s u l t s
were i n some manner u n r e l i a b l e . Bartel h a s c i t e d numerous
cases from f o r e i g n jurisdictions which h e a r g u e s e s t a b l i s h
the inadmissibility of Exhibit X. These cases generally
follow the rule established in Lessenhop v. Norton (Iowa
1967), 153 N.W.2d 107, which requires that before blood test
results may be admitted in evidence, each of 9 specific
factual requirements must be satisfied. These requirements
include a showing of the time at which the blood was drawn
and the identity of the person who drew the blood. 153
We do not follow the rule which requires that each of a
list of facts be established as foundation for admissibility
of blood-alcohol test results. Rather, we follow the
McAlpine rule which requires that procedures accord with good
practice in the field to assure reliability. Whether
procedures accord with good practice in the field is a
question to be decided based upon the facts and circumstances
of a particular case and the expert testimony received.
Having concluded that the record supports a finding that good
medical practice was followed in this case, the alleged
omissions in foundation raised by Bartel go to the weight of
the testimony rather than its admissibility.
We hold that the District Court did not err in admitting
into evidence the results of Bartel's blood-alcohol test.
Are the District Court's findings of fact number 6
through 8 supported by substantial credible evidence?
Bartel's contention that findings of fact number 7 and 8
are unsupported by substantial credible evidence depends upon
the inadmissibility of blood test results and upon Bartel's
characterization of other evidence regarding his intoxication
and impairment. We have concluded that the evidence of blood
test results was properly admitted. We would also conclude
there is additional evidence which supports these findings by
the District Court.
Gerald Cooper, one of Bartel 's drinking companions,
c o u l d n o t remember how many d r i n k s B a r t e l had a t any o f t h e
bars they visited. George Mitchell told investigating
officer Schmauch that they had been drinking, barhopping.
M i t c h e l l t e s t i f i e d t h a t B a r t e l had 9 o r more d r i n k s . Randy
Merryman, a Lake County Deputy S h e r i f f who was p r e s e n t a t t h e
s c e n e i m m e d i a t e l y a f t e r t h e a c c i d e n t , s t a t e d t h a t t h e r e was a
very definite strong odor of alcohol on Bartel's breath.
Karla Court, the registered nurse a t St. Ignatius Hospital
who f i l l e d o u t t h e i n i t i a l r e p o r t on B a r t e l , w h i l e s h e s t a t e d
s h e d i d n o t know f o r s u r e t h a t B a r t e l was i n t o x i c a t e d , s a i d
t h e s m e l l o f a l c o h o l on him was " p r e t t y s t r o n g . " Dr. Cooney,
treating physician at St. Patrick's Hospital i n Missoula,
s t a t e d he has e x p e r i e n c e i n r e c o g n i z i n g i n t o x i c a t i o n , t h a t he
s m e l l o f a l c o h o l i s v e r y c h a r a c t e r i s t i c of i n t o x i c a t i o n , and
that the alcohol smell on Bartel was the basis for the
n o t a t i o n on h i s r e p o r t t h a t B a r t e l was i n t o x i c a t e d .
Although there was extensive testimony regarding the
number o f d r i n k s B a r t e l had and how d r u n k h e a p p e a r e d t o b e ,
the t e s t i m o n y was c o n t r a d i c t o r y and none of t h e witnesses
could state definitely how many drinks Bartel had o r how
d r u n k h e was. The c o l l e c t e d testimony supports a finding
t h a t B a r t e l had anywhere from 9 to 1 5 d r i n k s between 9:00
p.m. and 1:00 a.m. on the night of the accident. The
District Court concluded i n finding of f a c t number 7 that
Bartel had consumed "quite probably 12 to 15 drinks
c o n t a i n i n g u n d e t e r m i n e d amounts o f s c o t c h w h i s k e y . "
We hold there is substantial credible evidence to
support this finding. This Court will not re-weigh
c o n f l i c t i n g evidence. Marriage o f Smith (Mont., Dec. 13,
1 9 8 4 ) , No. 83-502, s l i p op. a t 4 .
Extensive testimony was presented regarding Bartel's
blood-alcohol level at the time of the accident and the
degree to which he was impaired. The testimony on these
points, as on most other key points in this case, was in
sharp conflict. We conclude, however, that substantial
evidence supports finding of fact number 8 with respect to
Bartel's blood-alcohol level and degree of intoxication.
Mr. Hutchinson, a clinical toxicologist with extensive
experience in blood-alcohol testing and forensic toxicology,
stated that based upon certain known factors it is possible
to calculate with reasonable scientific reliability the
blood-alcohol level of a certain individual at a certain
time. Hutchinson then testified at length regarding the
details of such a calculation as to Bartel. Hutchinson
concluded that Bartel's blood alcohol level at 1 a.m. would
have been from .lo3 to .213, within a reasonable degree of
medical certainty. The blood-alcohol level was expressed as
a range of values to take into account the unknown variables
of individual elimination rate and individual absorption
rate. This level would require that the individual drink
around 18 to 21 ounces of 86 proof scotch. Hutchinson's
testimony was corroborated by Dr. Mueller.
Dr. Mueller further testified that at about .08 a
person's visual acuity is significantly affected. The
alcohol decreases peripheral vision, ability to recognize
objects clearly, ability to focus, and ability to recover
after being blinded by bright light. "Starting at about .08
the effect of alcohol in the system is to produce a kind of
tunnel vision." At a .15 level, the vast majority of people
are severely affected in driving a motor vehicle. Functions
important in driving are impaired at .15 or less, even though
there are no obvious signs of drunkenness apparent in those
habituated to alcohol. Dr. Mueller stated that unless Bartel
is very unusual, he would have suffered these effects.
We hold there is substantive credible evidence to
support t h e District C o u r t ' s finding of f a c t number 8 , t h a t
"[alt the time of the accident, Bartel's blood s t r e a m was
carrying between .lo3 and .213 percentage alcohol, which
s e r i o u s l y i m p a i r e d h i s s e n s o r y and m e n t a l f u n c t i o n s . . . ."
B a r t e l a l s o c o n t e n d s t h a t f i n d i n g o f f a c t number 6 , t h a t
B a r t e l was "thoroughly familiar with t h e intersection," is
n o t supported by s u b s t a n t i a l c r e d i b l e evidence. W e disagree.
The record indicates that Bartel had driven past this
intersection daily f o r many months prior to the accident.
B a r t e l d e n i e d a t t r i a l t h a t h e had ever d r i v e n t h r o u g h t h i s
i n t e r s e c t i o n o r t h a t h e had a f r i e n d i n S t . Ignatius. This
s t a t e m e n t was impeached a t t r i a l t h r o u g h B a r t e l ' s d e p o s i t i o n
i n which h e a d m i t t e d h a v i n g v i s i t e d a f r i e n d i n S t . Ignatius
and h a v i n g d r i v e n t h r o u g h t h e i n t e r s e c t i o n . The t r i a l c o u r t
s p e c i f i c a l l y found that Bartel had p r e v i o u s l y been in St.
Ignatius on several occasions and that Bartel had done
extensive t r a v e l i n g i n t h e area during t h e 6 y e a r s he l i v e d
i n Ronan.
We hold there is substantial credible evidence to
support t h e District Court's finding of f a c t number 6, as
w e l l a s f i n d i n g s number 7 and 8 .
Finally, we turn t o a n i s s u e w h i c h was n o t r a i s e d by
appellants but which was d i s c u s s e d i n o r a l argument. The
i s s u e was w h e t h e r t h e d i s t r i c t court erroneously concluded
t h a t B a r t e l ' s n e g l i g e n c e was t h e s o l e p r o x i m a t e c a u s e o f t h e
accident.
The c o u r t s p e c i f i c a l l y found t h a t u n d e r t h e 1 . i g h t and
w e a t h e r c o n d i t i o n s a t t h e t i m e o f t h e a c c i d e n t an o r d i n a r i l y
observant d r i v e r could observe:
"A. From a d i s t a n c e o f n o t l e s s t h a n 450 f e e t
s o u t h o f t h e n o r t h end o f t h e t r a f f i c i s l a n d t h e
roadway i t s e l f c o u l d b e s e e n t o c u r v e t o t h e r i g h t ,
or east. B. The end o f t h e i s l a n d and i t s hook
w e r e v i s i b l e from an a p p r o a c h i n g d i s t a n c e o f n o t
less t h a n 350 f e e t , t h e p o i n t o f t h e d e s i g n a t e d
bypass to Highway 93. C. From a point
a p p r o x i m a t e l y 200 f e e t t o a p o i n t a p p r o x i m a t e l y 50
f e e t from t h e n o r t h end o f t h e i s l a n d t h e c e n t e r
l i n e y e l l o w s t r i p e was c l e a r l y d i s c e r n i b l e , a s w e r e
t h e w h i t e b o r d e r s t r i p e s and t h e c u r b i n g o f t h e
island. D. From a d i s t a n c e o f a t l e a s t 150 f e e t
south of the north end of the island an
u n o b s t r u c t e d p a s s a g e t o Highway 93 was c l e a r l y
discernible. E. The t r i a n g u l a r c a u t i o n a r y ' y i e l d '
s i g n c o u l d b e o b s e r v e d a t l e a s t 400 f e e t s o u t h of
t h e n o r t h end o f t h e i s l a n d . "
I n v e s t i g a t i n g Highway P a t r o l O f f i c e r R i c h a r d G . Schmauch
t e s t i f i e d a s follows:
"Q O f f i c e r , b a s e d on y o u r e x p e r i e n c e and y o u r
t r a i n i n g , your i n v e s t i g a t i o n of t h i s p a r t i c u l a r
a c c i d e n t , y o u r o b s e r v a t i o n s d o you h a v e an o p i n i o n
a s t o t h e cause of t h i s accident?
"A Yes, s i r , I do.
"Q And what i s t h a t o p i n i o n ?
"A J u s t c a r e l e s s n e s s on t h e p a r t o f t h e o p e r a t o r .
"Q And why d o you s a y t h a t ?
"A Because I know t h a t i f a p e r s o n was p a y i n g
a t t e n t i o n , o b e y i n g t h e l a w s and t h e s i g n s i n t h e
area, t h a t h e would n o t have c o n t a c t e d t h a t
divider. "
As previously set forth the district court concluded
t h a t i f B a r t e l had b e e n d r i v i n g i n a r e a s o n a b l y c a r e f u l and
prudent manner and n o t under t h e influence of alcohol, he
could have easily avoided the collision with the traffic
island. H e a l s o c o n c l u d e d t h a t B a r t e l was n o t i n a n y way
trapped by highway design, signin.g or maintenance. The
findings and conclusions of the District Court regarding
p r o x i m a t e c a u s e a r e n o t c h a l l e n g e d by B a r t e l on a p p e a l .
We hold there is substantial credible evidence to
support t h e D i s t r i c t Court's f i n d i n g s and c o n c l u s i o n s t h a t
Bartel's negligence was the sole proximate cause of the
accident. See McAlpine v . Dahl ( 1 9 7 8 ) , 179 Mont. 23, 585
P.2d 1307; Jimison v. Unisted States (D. Mont. 1 9 6 7 ) , 267
F.Supp. 674, affirmed Jimison v. United States (9th Cir.
We affirm the judgment of the District Court.
We concur: --,
The Honorable John M-. McCarvel,
~is&ict Judge, sitting in
place of Mr. Justice John C.
Harrison
Mr. Justice John C. Sheehy, dissenting:
I dissent from the unqualified acceptance by this Court
and by the District Court of the blood test results in light
of the record here.
In my original dissent to the original opinion which has
now been withdrawn, I contended that no foundation had been
laid for the supposedly scientific tests of the blood alcohol
concentrations here. I continue here in that dissent to the
new opinion because at a minimum, for scientific test results
a foundation should include the following factors: (1) that
the persons engaged in the test were qualified; ( 2 ) that the
machine used and its components were in proper condition; and
(3) that the test was properly conducted.
In this case, factors (1) and !3) have not been shown.
It is incredible that the hospital chart does not show the
precise time in which the blood was withdrawn from Bartel,
nor the person who withdrew the blood. Thus we have no
direct evidence as to how part of the test was conducted, a
most important part, the drawing of the blood sample itself.
A record of the time the blood was withdrawn from Bartel was
especially important, because if the blood was taken after
mannitol had been administered, at 3 :35 a.m. , then the test
was subject to considerable doubt. Mannitol is a crystaline
alcohol having a chemical makeup of C6HI4O6. If Bartel's
blood was withdrawn before the mannitol was administered, but
isopropyl was used to swab the location where the blood was
withdrawn, there is still a problem (not admitted by the
State experts) because isopropyl has a chemical makeup of
C3H80. The chemical symbol for ethyl alcohol, the
intoxicating agent in liquor is C2H60.
This Court, like many another, has fallen prey to the
pseudo-science of alcohol concentrations in the blood, urine
or breath to determine drunkenness. With the advent of
statutes using alcohol concentrations to define drunk
driving, a holy mystique of a sort has grown up around the
levels defined in those statutes. Courts and lawyers
untutored in chemistry and in spite of their own experience
accept these levels without question. They adopt the
statutes as establishing a sharp cleavage between drunkenness
and nondrunkenness. The assumption is embraced that one
having an alcohol concentration of less than 0.10 is not
drunk, but one having an alcohol concentration greater than
0.10 is drunk, even though that assumption belies their own
personal observation. It is our common observation that some
people carry their booze better than others.
What is forgotten is that 0.10 alcohol concentration is
an arbitrary figure, so arbitrary that proof of such an
alcohol concentration without more, is in itself a crime in
operating a motor vehicle. Section 61.-8-406, MCA. Until the
legislative amendment in 1971, the former arbitrary figure
was 0.15 alcohol concentration which would be half again as
much alcohol in the blood. Section 32-2142, R.C.M. 1-947,
amended Ch. 32, Laws of Montana (1971) .
Now courts give greater probity to blood test results
than to witnesses' observations of drunken persons, when the
reverse should be true. To paraphrase the remark about
pornography, we cannot define drunkenness, but we know it
when we see it. In this case, there was a wealth of evidence
about the amount of liquor consumed, the appearance, the
eyes, the breath, the gait, the slurred speech, the lack of
coordination that, had the District Court relied principally
on these and not so heavily on the blood test results, I
would then support its judgment. But because the blood test
results weighed so heavily in its opinion in determining the
intoxication of Ba-rtel, I am forced to dissent.
I have never worshipped at the shrine of blood test
results because they are for the most part a false idol, with
feet of clay and the heart of a gas chromatograph.
It is evident that the majority and the District Court
have not thoroughly thought out the implications of blood
test results, because each blithely accepts that Bartel had
"a blood alcohol level of .I71 percent" or that at the time
of the accident, Bartel's blood alcohol was "between .I03 and
.213 percent." Percent of what? Blood alcohol levels cannot
he defined in terms of percentage unless they are expressed
in terms of percentage of weight or percentage of volume.
Neither volume nor weight is met under the evidence in this
case.
The statute defining "alcohol concentration," for the
purpose of this case, requires grams of alcohol per 100
milliliters of blood. Section 61-8-407, MCA. Grams are a
measure of weight. Milliliters are a measure of volume. One
cannot be expressed in terms of the other by percentage
unless the substances being compared weigh exactly the same.
Alcohol is lighter than water, because it floats on
water. In fact, absolute alcohol has a specific gravity of
0.789, compared to water which has a specific gravity of 1.
Blood is thicker than water, both socially and physically. I
do not know the specific gravity of human blood but I suspect
that it is greater than the specific gravity of water because
my personal observation is that blood sinks in water. A
cubic centimeter of alcohol, therefore, would weigh much less
than a cubic centimeter of human blood. If we had a 100
milliliter mixture of water and alcohol of which the alcohol
consisted of 1 percent by volume, the alcohol in the mixture
would weigh 0.789 grams. If the alcohol in the same mixture
constituted 1 percent by weight, the mixture would contain
nearly 1.267 cubic centimeters of alcohol. Chemical-ly that
is a vast difference.
It is for that reason that the statute defining alcohol
concentration now avoids references to percent, and relates
instead to weight of alcohol per volume of blood. There is
nothing, however, in the record before us to tell us what the
so-called experts were talking about when they were referring
to "percent" in determining blood alcohol levels.
Lost in the murnbo-jumbo of the pseudo-science of blood
alcohol tests is the fact that the tests involve
infinitesimally small amounts. This is because statutory
blood alcohol terms are couched in terms of metric measures,
perhaps purposely so. Most Americans do not comprehend the
relationship between metric measures and their U.S.
equivalents. It may have helped if section 61-8-407, MCA,
had defined "alcohol concentration" as the number of 0.035
ounces of alcohol per 6.1 cubic inches of blood. (A gram is
0.035 ounce.) We might be able to grasp then that if
Bartel's blood alcohol level was 0.171 (assuming that 0.171
refers to grams) that his actual alcohol level per ounce was
0.005985 (0.171 x 0.035). Put another way, if each ounce of
his blood was broken into a thousand parts, at a blood
alcohol level of 0.171, six parts of that blood would
constitute alcohol.
The minuteness of those figures is lost in the metric
system in the pseudo-science of blood alcohol levels. Minute
-amounts of alcohol in the blood can cause intoxication.
Minute amounts of other alcohol-related substances, if
present, can seriously distort blood test results.
I fear the weight given to blood test results,
especially in civil cases where other and more convincing
evidence of drunkenness is available. I fear the testimony
of experts who testify that the margin for error in these
tests is "2 to 3 percent." Two percent of 0.005985 is
0.0001197. I truly doubt that any machines available here
are capable of measuring down to the ten millionth part. If
we accept these statements without question, we have been
overtaken by a form of doublethink in the guise of metric
measures.
Please do not answer that the hospital and doctors used
the blood test results for their medical purposes, and
therefore the results must be accurate. The medical people
here did not need blood tests to determine that this man had
been drinking. The nurse wrote "intoxicated" upon the chart
the first moment she saw him. That observation was not based
on blood tests.
For these reasons, I would set a rigid foundational
requirement for the admission of blood test evidence.
Routine would not be enough. No perfect routine and no
perfect machine can escape the impact of the imperfect human
being. The majority in this case have elevated routine into
infallability.
1 would reverse this case on the grounds that the
District Court found evidence of intoxication based on the
blood tests for which no proper foundation was laid and for
the further reason that the blood test results do not relate
to the statutory scheme of weight per volume of blood.
Mr. J u s t i c e W i l l i a m E . Hunt, S r . , d i s s e n t i n g :
/'
I c o n c u r i n t h e d i s s e n t o f M r . J u s t i c e Sheehy.
Mr. J u s t i c e F r a n k 3 . Pdorrison, Jr. , dissenting :
I concur i n t h e d i s s e n t of M r . J u s t i c e Sheehy.