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State v. Boehmer6/27/1980
a criminal matter, the prosecution bears the burden of establishing each and every element of an offense charged proven beyond a reasonable doubt. State v. Cuevas, 53 Haw. 110, 488 P.2d 322 (1971). In both of the cases at bar, the State has failed to establish a critical fact. The State merely demonstrated that the reading of the breathalyzer machine was 0.11% for Defendant Boehmer and 0.10% for Defendant Gogo. The inherent margin of error could put both defendants' actual blood alcohol level below the level necessary for the presumption to arise. The failure of the prosecution to establish beyond a reasonable doubt that the actual weight of alcohol in defendants' blood was at least 0.10% required the trial judge to ignore the statutory presumption in its determination.
In State v. Bjornsen, 201 Neb. 709, 271 N.W.2d 839 (1978), the Nebraska Supreme Court was faced with a case similar to the cases at bar.
In that case, the defendant was convicted of operating a motor vehicle while having 0.10% of alcohol by weight in her body fluid. The Nebraska statute provided as follows:
It shall be unlawful for any person to operate or be in the actual physical control of any motor vehicle while under the influence of alcoholic liquor or of any drug or when that person has ten-hundredths of one percent or more by weight of alcohol in his body fluid as shown by chemical analysis of his blood, breath, or urine. Neb. Rev. Stat. § 39-669.07.
The defendant's blood sample was tested and the test disclosed the presence of 0.10% alcohol by weight in the sample. The chemist who administered to blood sample test testified at the time of trial that there was a margin of error in the test that could have resulted in the defendant having the
blood alcohol content below the statutory level. The court reversed defendant's conviction and held that where there is an absence of other sufficient evidence to support a conviction for driving under the influence of intoxicating liquor and such conviction is, therefore, based solely on a chemical test, the results of such a test when taken together with its tolerance for error, must equal or exceed the statutory level. In discussing the statute the court further stated:
While the Legislature has the acknowledged right to prescribe acceptable methods of testing for alcohol content in body fluids and perhaps even the right to prescribe that such evidence is admissible in a court of law, it is a judicial determination as to whether this evidence is sufficient to sustain a conviction, if the evidence is believed. The Legislature has selected a particular percent of alcohol to be a criminal offense if present in a person operating a motor vehicle. It is not unreasonable to require that the test, designed to show that percent, do so outside of any error or tolerance inherent in the testing process. 271 N.W.2d at 840.
We concur with the rationale and holding in the Bjornsen case. Accordingly, we reverse and remand both cases for further proceedings consistent with this opinion.
Disposition
We concur with the rationale and holding in the Bjornsen case. Accordingly, we reverse and remand both cases for further proceedings consistent with this opinion.
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