BARTEL v STATE

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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 , -vsSTATE O F MONTANA, D e f e n d a n t a n d Respondent. 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 . APPEAL FROM: 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: Decided: Filed: s 198% # i u c ~: i!6zdL */- e Clerk May 7 , 1 9 8 5 August 2 7 , 1 9 8 5 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 of B r u c e F7. negligence Donna Bartel, action Bartel, L. an a s g u a r d i a n and c o n s e r v a t o r incapacitated against the b e n c h t r i a l on t h e i s s u e o f State person, of brought Montana. liability, this After a 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 Court judgment 2, 1985, this original case r e t i r e d rehearing. judgment of the of the 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 D i s t r i c t Court. for affirmed rehearing A the from t h e C o u r t . was Plaintiff granted. D i s t r i c t Court. We We petitioned affirm the withdraw t h e o r i g i n a l 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 . opinion dated January 2 , The i s s u e s a r e : 1. Did evidence without blood-alcohol 2. District the adequate Court err in the foundation admitting results into of a test? 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 severely was injured 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. highway j u n c t i o n in a motorcycle o n May 2 8 , on t h e n o r t h end o f S t . 1980 a t a 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, 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 . 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 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 recreational four-wheel least a traveling drive normal occupational and i n t h e Ronan a r e a b y m o t o r c y c l e and vehicle. amount Beginning of 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 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 n e x t day. 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. p.m., S h o r t l y a f t e r 7:00 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, Around 9:00 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 . p.m., met Bartel 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 truck for this Mitchell's meeting, Bartel motorcycle. For traded his rest the pickup 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 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., visited various bars Numerous witnesses between testified at Ronan trial and St. regarding and the t r i o Ignatius. 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 . approached St. ( N e w Highway Ignatius from t h e n o r t h on U.S. 93) b u t d r o v e p a s t They Highway 93 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. bar, 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 . Cooper and Bartel decided Ignatius 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 . 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 . known a s "Old Highway 93." The I g n a t i u s , which i s 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 n a sweeping c u r v e t o t h e n o r t h . I g n a t i u s on t h e n o r t h w e s t 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. diagram o f A 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 left traffic island on the 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 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. from 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 hospital, was taken where immediately personnel to quickly the St. determined Ignatius 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, o t h e r symptoms. Patrick's B a r t e l was t r a n s f e r r e d by ambulance t o S t . 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 drawn and examined Bartel an was purposes, between a The treating concluded, among other of "alcoholic i n d i c a t e d a blood-alcohol the at .I71 percent trial that test Bartel's neurologist things, that intoxication." A s o l e l y f o r medical l e v e l of result, .I71 percent. expert witnesses blood-alcohol level was .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 . sought damages for personal injuries 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 State's negligence intersection discovery, started. state complaint resulting Blood s p e c i m e n s w e r e a.m. t e s t , p e r f o r m e d on B a r t e l . l o 3 and The the and in upon testified was IV Bartel blood-alcohol Rased along with noting and the in design surrounding c a s e was tried and maintenance area. before After the the extensive Lewis 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 . of and C l a r k 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 , and conclusions entered judgement 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 of in law. On favor of January 18, 1983 t h e t h e defendant. findings of f a c t included t h e following: fact court The c o u r t ' s "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, the a c c i d e n t was clear, The and court 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 dark b u t clear, no o t h e r t r a f f i c was found functioning that normally the and the involved headlight that all the left and i n t h e accident. traffic signs was could be 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 dry on t h e motorcycle discerned clearly with t h e headlight. decelerating, roadway was and w i t h o u t b r a k i n g o r 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 lane, collided i s l a n d toward i t s n o r t h e n d , with the traffic separation 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 intersection. The of the court proper found that route if through Bartel had the 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 concluded the that influence Bartel was of alcohol. negligent in The court failing to also 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 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 circumstances o r , 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. concluded that cause of Bartel's negligence the accident. negligence of the the s o l e proximate The c o u r t a l s o c o n c l u d e d S t a t e was n o t cause of t h e accident. was The c o u r t t h a t any i n any degree a proximate Bartel appeals. I 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 Did t h e d i s t r i c t without adequate foundation t h e r e s u l t s of a blood-alcohol test? Bartel results establish required contends was that evidence of inadmissible because the the by required McAlpine 1 9 8 1 ) , 634 P.2d 1166, failed to for i t s admission, as Electric Company foundation v. Midland 38 St.Rep. test blood-alcohol 1577. State (Mont. 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 test requires that 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 the results. blood from test good render a l l e g e s numerous i n a d e q u a c i e s i n procedure medical the contends Bartel test practice. results is there which h e no contends a r e alleges He in this evidence case other deviations these deviations unreliable. than the Bartel test blood 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 is testimony appropriate here. Three h o s p i t a l Bartel1s blood employees test and B a r b a r a Westphal-Marcus, testified routine a n R.N. blood test regarding procedure. who p a r t i c i p a t e d i n B a r t e l ' s emergency room 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 drug mannitol treatment 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 Westphal-Marcus administered Bartel a.m., However, was the and drawn. the charted a.m. was that treatment, at trial testified at that 3:35 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 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 patient 's is arm prepped with routine procedure f o r alcohol testing: betadine, a for the 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; are drawn; 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 the blood is put immediately into two tubes, marked with the patient's name and chart ER number, and handed t o t h e l a b t e c h n i c i a n . Westphal-Marcus b l o o d was drawn. Bartel's was drawn Responding indicated case. 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 , blood started. 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 that alcohol to nothing is testing a.m. 3:30 questions unusual anticipated, when from had is usually betadine While at been used the the IV court, done in was she Bartel's f o r p r e p p i n g where 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. which occurs However, before the she stated syringe is that t h e blood inserted spill 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 . concluded that good medical practice was used in She 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 a c c u r a t e copy o f original accident. test the and identified Exhibit X l a b r e p o r t s h e had p r e p a r e d printout and signed the night of as an from t h e Bartel's 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 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 blood drawing. isopropyl skin for the 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 s t i p u l a t e d i n t o evidence i n l i e u of deposition testimony. was 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. noted that all Bartel's were blood concluded hospital that personnel who professionally test procedures could have competent. accorded with She drawn Spradlin 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, testified the hospital's Kenneth H. Mueller, something distinctly drawing t h e blood. isopropyl t e s t i n g methods a r e a c c u r a t e . forensic pathologist, abnormal as or alcohol, opposed to the testified been any incompetent i s o p r o p y l would He testified whole blood 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 . had Dr. that was done in 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 measurable d i f f e r e n c e . serum t e s t i m o n y and 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 use of using a l i s t e n e d t o Heuer's result in no t h a t a t e s t on b l o o d would yield a maximum Mueller s t a t e d t h a t i f t h e r e 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. 6 3 4 P.2d Midland 1166, 38 St.Rep. E l e c t r i c Company (Mont. 1981), 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 There, had appellant are similar t o those raised by B a r t e l . argued t h a t t h e proponent o f t h e evidence 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 procedures and testing of the samples followed the 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 634 P.2d which recorded the test results. 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 conformity with the habit or routine practice." l1 in Routine practice" is defined as "a regular course of conduct of a group of persons or an organization." Hospital personnel and medical Rule 406 (a), M.R.Evid. experts testified length of the routine medical practices employed at 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. exception of Bartel1s expert witness, With the single all witnesses testifying on this point agreed that the procedures employed were in accordance with good practice and yielded reliable and accurate testimony results. heard prior During to the extensive admission of foundation 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. above testimony, together with testimony The 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 essential to admissibility of the results. he argues are 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 admissibility of the test results. precludes 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. Westfall-Marcus The and routine other procedure nurses established without contradiction. in used the by Nurse hospital was There is nothing in the written records to indicate any deviation from these procedures. Nurse Westfall-Marcus testified deviation from routine procedures. there was no 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 itself. challenge the admissibility of the blood test 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 because 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. blood drawing is certainly a The time of the 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 was commenced a t 3 : 3 0 l i s h e d t h a t t h e I.V. was given Bartel t o Mr. at and t h a t m a n n i t o l She t e s t i f i e d 3:35. 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 withdrawal of in the hospital, t h e blood would have required p r o m p t l y a f t e r t h e commencement o f 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 . t h e I.V. the 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 s h e completed h e r t e s t that at 4:30 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 complete t h e t e s t . and hour t o 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 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 part of t h e b l o o d was drawn a t c l o s e t o 3 : 3 0 a.m., was 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 begun. that when t h e I . V . conclusion. There is in fact no evidence to the Bartel. We there was failure to 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 . conclude that the argument of Mr. Bartel that 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 demonstrate t h a t a non-alcoholic preparation is fatal to the State's s o l u t i o n was u s e d test result's for skin admissibility. Nurse W e s t f a l l - M a r c u s testified that the routine practice is to non-alcoholic use Betadine, a testing is anticipated. solution, when alcohol 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 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 did explain needle in detail i s withdrawn the nature from t h e of the I.V. 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 of s 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. that he had Mueller, Dr. done studies forensic pathologist, on the effect of testified 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 affect testified the ethel he had alcohol found result the o n l y way was if the it would 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. the ordinary alcohol, way of preparing He testified that in an arm for example with "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. Bartel's test Rartel argues abnormal results. indicating that that body State chemistries However, body the the did failed not record chemistries to i n t e r f e r e with contains actually show t h a t nothing, affected test results are results. 5. Bartel contends that the test 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 6 3 4 P.2d at 7171-72, 38 test results. St.Rep. at 1584. S e e McAlpine, 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 . Spradlin testified that the hospital Heuer and routinely followed q u a l i t y c o n t r o l procedures, preventive maintenance procedures W e f i n d no m e r i t i n t h e s e 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 . contentions. 6. Finally, argues t h a t t h e test r e s u l t s w e r e Bartel 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 percent 2-3 in test 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 results. unnecessary for accurate results. reject We these contentions. Despite Bartel's significance of the testimony, Bartel inadequacy in admissibility found it to support his to test t h e blood that argument establish procedure test r e s u l t s . the appellant contention t h e a p p e l l a n t had of death concluded that admissibility." and the foundation any which actual affects had that presented post-mortem we no blood We stated that a t laid a b a s i s f o r a suggestion t h a t the condition of t h e victims' time to I n McAlpine, c l o t t i n g seriously affected test results. most, as in omissions failed blood significant evidence alleged has the of vigorous b l o o d had changed between t h e time the " [sluch a of drawing suggestion goes 6 3 4 P.2d a t 1171, 38 St.Rep. I n a s i m i l a r manner, the blood. We to weight, not a t 1583. 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 cases the some manner u n r e l i a b l e . from f o r e i g n inadmissibility jurisdictions of Exhibit Bartel h a s c i t e d numerous which h e a r g u e s e s t a b l i s h X. These cases generally follow the rule established in Lessenhop v. 1967), 153 N.W.2d Norton (Iowa 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 procedures the field accord with to assure reliability. good practice in the Whether 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 Bartel 's of 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 officer visited. Schmauch George that they Mitchell had been told investigating 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 Karla Court, strong the odor of registered alcohol on nurse a t St. Bartel's breath. 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 . " treating physician at St. Patrick's Cooney, Dr. 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 regarding 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 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 could state c o n t r a d i c t o r y and definitely how many none drinks d r u n k h e was. The c o l l e c t e d anywhere from 9 to p.m. and District Bartel 1:00 Court had a.m. on the concluded consumed night had o r how supports a finding 1 5 d r i n k s between of the i n finding of "quite t h e witnesses Bartel testimony t h a t B a r t e l had of accident. 9:00 The f a c t number 7 that 12 drinks probably to 15 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 support this there is finding. c o n f l i c t i n g evidence. 1 9 8 4 ) , No. 83-502, Extensive blood-alcohol substantial This credible Court Marriage o f will Smith evidence not (Mont., to re-weigh Dec. 13, s l i p op. a t 4 . testimony level at was the presented time of the regarding accident Bartel's 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 rate. individual absorption 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. person's Mueller visual further testified acuity is that at about significantly affected. .08 a 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 is there substantive credible support t h e District C o u r t ' s finding of "[alt time the carrying of between the accident, .lo3 and .213 evidence to f a c t number 8 , t h a t Bartel's blood percentage s t r e a m was 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," 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. The record indicates intersection daily that Bartel f o r many months had W e disagree. driven prior to is past the this 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 . 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 . s p e c i f i c a l l y found Ignatius on that several Bartel occasions had and Ignatius The t r i a l c o u r t p r e v i o u s l y been that Bartel in had St. 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 support t h e District Court's credible finding of evidence f a c t number 6, to as w e l l a s f i n d i n g s number 7 and 8 . Finally, appellants but 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 which was d i s c u s s e d i s s u e was w h e t h e r i n o r a l argument. t h e d i s t r i c t court erroneously The 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 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 island. 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 . " Schmauch 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 . 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? s i r , I do. "A Yes, "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 could manner have island. trapped findings and easily n o t under t h e avoided the influence of collision with alcohol, the 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 by highway and signin.g design, conclusions of traffic i n a n y way or maintenance. District the he Court The 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 . W e hold is there 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 sole negligence was the accident. See McAlpine v . P.2d Jimison 1307; v. Dahl Unisted proximate cause of the ( 1 9 7 8 ) , 179 Mont. 23, 585 States (D. Mont. 1 9 6 7 ) , 267 F.Supp. 674, affirmed Jimison v. United States 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 (9th Cir. 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 intoxicating agent in liquor is C2H60. ethyl alcohol, the This Court, like many another, has fallen prey to the pseudo-science of alcohol concentrations in the blood, urine or breath to determine drunkenness. statutes using alcohol With the advent of 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 milliliters of blood. measure of weight. Section 61-8-407, MCA. Grams are a Milliliters are a measure of volume. cannot be expressed 100 One in terms of the other by percentage unless the substances being compared weigh exactly the same. Alcohol water. is lighter than water, because it floats on 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 infinitesimally small amounts. that the tests involve 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 equivalents. It may have helped if section 61-8-407, MCA, measures and their U.S. had defined "alcohol concentration" as the number of 0.035 ounces of alcohol per 6.1 cubic inches of blood. 0.035 ounce.) We might be (A gram is 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). his blood was broken alcohol level of Put another way, if each ounce of into a thousand parts, at a blood 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 Minute amounts of other can cause intoxication. 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 I fear the testimony evidence of drunkenness is available. of experts who testify that the margin for error in these tests is "2 to 3 percent." Two percent of 0.005985 is I truly doubt that any machines available here 0.0001197. 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 Routine would not be enough. of blood test evidence. 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. , I concur i n t h e d i s s e n t of M r . dissenting : J u s t i c e Sheehy.

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