STATE v. GEISLER5/11/1990
for admissibility of the chemical test. Subdivision (5) requires, with certain exceptions not relevant here, that "an additional chemical test of the same type performed at least thirty minutes after the initial test was performed," and subdivision (6) provides that "evidence is presented which
demonstrates that the test results and the analysis thereof accurately reflect the blood alcohol content at the time of the alleged offense." (Emphasis added.)
The requirement for the second test, and the insertion into the sixth condition of admissibility of the phrase "and the analysis thereof" were the result of an amendment to the per se drunk driving bill on the floor of the House, prior to its ultimate passage, presented by Representative Richard Blumenthal. The legislative debate on the second test requirement
and on the "analysis thereof" language has convinced this court that the legislature, in enacting the per se legislation, contemplated that there would be expert testimony specifically relating the BAC at the time of the tests to the BAC at the time of operation of the motor vehicle.
As best we can ascertain, there is only one other state that requires expert extrapolation evidence; see State v. Dumont, 146 Vt. 252, 499 A.2d 787 (1985). We are well aware that in reaching our conclusion that this evidence is required, we are adopting the minority position. The majority of jurisdictions that have addressed this issue have held that expert testimony is not necessary to relate the breathalyzer tests to the time of the driving and that states can utilize behavioral evidence, such as erratic driving, to corroborate the test results. It is significant to note, however, that many of these
states have legislatively mooted the requirement of expert extrapolation evidence by providing in their per se drunk driving statutes that if the test is administered within a certain time after the offense, those results constitute the per se violation; see, e.g., Erickson v. Municipality of Anchorage, 662 P.2d 963, 964-65 (Alaska App. 1983) (presumption of violation if administered within four hours); People v. Pritchard, 162 Cal.App.3d Supp. 13, 16, 209 Cal.Rptr. 314 (1984) (rebuttable presumption of illegal BAC if within three hours); State v. Larson, 429 N.W.2d 674, 675 (Minn. App. 1988) (within two hours); People v. Mertz, 68 N.Y.2d 136, 139, 497 N.E.2d 657, 506 N.Y.S.2d 290 (1986) (prima facie case established if administered within two hours); State v. Ulrich, 17 Ohio App.3d 182, 190, 478 N.E.2d 812 (1984) (within two hours). Further, those statutes that have not provided that the tests be administered within a certain time period, do not contain language that can be compared to the phrase "and the analysis thereof" contained in our statute or to the legislative discussion behind the amendment. See, e.g., Fuenning v. Superior Court in and for City of Maricopa, 139 Ariz. 590, 680 P.2d 121 (1930); State v. Miller, 555 So.2d 391, 393 (Fla. App. 3 Dist. 1989); State v. Knoll, 110 Idaho 678, 681, 718 P.2d 589 (Ct. App.), cert. denied, 116 Idaho 466, 776 P.2d 828 (1986); People v. Kozar, 54 Mich. App. 503, 221 N.W.2d 170 (1974); State v. Larson, supra, 676-77; Commonwealth v. Speights, 353 Pa. Super. 258, 509 A.2d 1263 (1986).
Those states in which the statute does not address the issue of requiring expert extrapolation testimony recognize, however, that if the legislature expressed a clear intent that such evidence be required, a different result would be necessary. See, e.g., State v. Ulrich, supra, 191 (conclusion that expert testimony is not necessary because of absence of "clear statutory language requiring the need for expert testimony"); s
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