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State v. Graham1/24/2003
ical diagnostic purposes. Our determination is thus narrowed to whether the technique's validity is generally accepted as reliable within the scientific field of determining blood alcohol concentration.
Johnson conceded that the hospital's laboratory procedures recommended that the enzyme analysis test results from the Kodak Vitros 250 machine be confirmed by gas chromatography, and admitted the results in this case were not confirmed. Johnson testified that the standard deviation of the enzyme analysis from the gold standard was 11 milligrams per deciliter, or in the range of a 5 1/2% to 7% positive bias. Johnson admitted on cross-examination that it was possible that the positive bias could result in a reading of .081 blood alcohol concentration when, in fact, it should read .079. Johnson testified, however, that based on his discussions with personnel at the Kansas Department of State Health and Environment laboratory and the KBI, he believed the enzyme analysis method for measuring blood alcohol concentration was generally accepted throughout the State of Kansas by courts and forensic scientists.
On appeal, the State presents citations demonstrating that a number of other states have accepted blood alcohol concentration evidence obtained through the enzyme analysis method, either via case law, regulation, or statute. Enzyme analysis is not a novel method for determining blood alcohol concentration; the first journal published on the method appeared in 1951. See R. Bonnichsen & H. Theorell, An Enzymatic Method for the Microdetermination of Ethanol, 3 Scand. J. Clinical Lab. Invest. 58 (1951). Further, it is significant that both expert witnesses testified that the enzyme analysis method was commonly used in hospital laboratories and that Zettl agreed hospital laboratory results may be used in life or death situations.
After reviewing the evidence presented to the district court as well as the authority cited by the State and within the Briggs case, we conclude that the enzyme analysis technique's validity is generally accepted as reliable within the scientific field of determining blood alcohol concentration. We therefore conclude, as a matter of law, that the enzyme analysis tests to determine blood alcohol concentration meet the requirements of Frye, and that the blood test results were admissible at trial.
Because blood alcohol concentration in serum may differ from that in whole blood, we conclude that evidence of the proper conversion from serum to whole blood concentrations is also admissible. See Briggs, 24 Kan. App. 2d at 625-26; 1 Fitzgerald, Intoxication Test Evidence § 19:12 and Fig. 29 (2d ed. 1995) (noting that serum or plasma alcohol concentration values register higher than whole blood by an average of 16 percent).
Finally, we note that Graham requested that this court reconsider the issue of whether the State timely docketed its appeal within the 21-day limit under Supreme Court Rule 4.02. We note that at oral argument Graham conceded that the State had timely docketed its appeal. There is no necessity to consider the matter further.
Reversed and remanded.
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