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Bartel v. State8/27/1985
ed. George Mitchell told investigating officer Schmauch that they had been drinking, barhopping. Mitchell testified that Bartel had 9 or more drinks. Randy Merryman, a Lake County Deputy Sheriff who was present at the scene immediately after the accident, stated that there was a very definite strong odor of alcohol on Bartel's breath. Karla Court, the registered nurse at St. Ignatius Hospital who filled out the initial report on Bartel, while she stated she did not know for sure that Bartel was intoxicated, said the smell of alcohol on him was "pretty strong." Dr. Cooney, treating physician at St. Patrick's Hospital in Missoula, stated he has experience in recognizing intoxication, that the smell of alcohol is very characteristic of intoxication, and that the alcohol smell on Bartel was the basis for the notation on his report that Bartel was intoxicated.
Although there was extensive testimony regarding the number of drinks Bartel had and how drunk he appeared to be, the testimony was contradictory and none of the witnesses could could state definitely how many drinks Bartel had or how drunk he was. The collected testimony supports a finding that Bartel had anywhere from 9 to 15 drinks between 9:00 p.m. and 1:00 a.m. on the night of the accident. The District Court concluded in finding of fact number 7 that Bartel had consumed "quite probably 12 to 15 drinks containing undetermined amounts of scotch whiskey."
We hold there is substantial credible evidence to support this finding. This Court will not re-weigh conflicting evidence. Marriage of Smith [214 Mont. 66,] 692 P.2d 1221 at 1224 (Mont. 1984),
Extensive testimony was presented regarding Bartel's blood-alcohol level at the time of the accident 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 .103 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 individual absorption rate. 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. Mueller further testified that at about .08 a person's visual acuity is significantly affected. 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 there is substantive credible evidence to support the District Court's finding of fact number 8, that " t the time
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