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Bartel v. State8/27/1985
cific tests are not kept, but that if the machine printout had indicated any error, she would have repeated the test until receiving error-free results.
Chief Lab Technician Opal Spradlin's deposition was stipulated into evidence in lieu of testimony. She stated that the drawing of blood for alcohol testing is usually done without use of isopropyl alcohol as 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 medical practice to assure reliable medical results.
James D. Hutchinson, a clinical toxicologist experienced in blood-alcohol testing, listened to Heuer's testimony and testified the hospital's testing methods are accurate. Dr. Kenneth H. Mueller, a forensic pathologist, testified that use of isopropyl alcohol would affect test results only if something distinctly abnormal or incompetent was done in drawing the blood. If normal prepping procedure was followed using isopropyl alcohol, the isopropyl would result in no measurable difference. He testified that a test on blood serum as opposed to whole blood would yield a maximum difference of only 2-3 percent. Mueller stated that if there had been any significant possibility of error in Bartel's blood test, it would have been called to someone's attention.
In McAlpine v. Midland Electric Company (Mont. 1981), 634 P.2d 1166, 38 St.Rep. 1577, the appellant raised several arguments regarding foundation for admission of blood-alcohol test results which are similar to those raised by Bartel. There, appellant argued that the proponent of the evidence had failed to show that post-mortem blood clotting did not result in a higher blood-alcohol reading; failed to show that the procuring and testing of the samples followed the procedures set out in the Administrative Rules of Montana; failed to show the blood tested came from the victims' 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, "`they must accord with good practice in the field to assure reliable results.'" 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 " vidence 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." "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 Bartel's expert witness, all witnesses testifying on this point agreed that the procedures employed were in accordance with g
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