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Bartel v. State8/27/1985
firmed Jimison v. United States (9th Cir. 1970), 427 F.2d 1133.
We affirm the judgment of the District Court.
MR. CHIEF JUSTICE HASWELL and MR. JUSTICES GULBRANDSON and HON. JOHN McCARVEL, District Judge sitting for MR. JUSTICE HARRISON, concur.
MR. JUSTICE 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In my original dissent to the original opinion which has now been withdrawn, I contended that no foundation had been laid for the supposedly scientific tests of the blood alcohol concentrations here.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 It is incredible that the hospital chart does not show the precise time in which the blood was withdrawn from Bartel, nor the person who withdrew the blood.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 A record of the time the blood was withdrawn from Bartel was especially important, because if the blood was taken after mannitol had been administered, at 3:35 a.m., then the test was subject to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 make-up of C6H14O6. If Bartel's blood was withdrawn before the mannitol was administered, but isopropyl was used to swab the location where the blood was withdrawn, there is till a problem (not admitted by the State experts) because isopropyl has a chemical make-up of C3H8O. The chemical symbol for ethyl alcohol, the intoxicating agent in liquor is C2H6O.
The 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. 1947, 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
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