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COSSEY v. STATE10/31/1979
of testing for alcohol presence. Although the language of the statute is disjunctive, we find the intent of it to be that even certified operators may not ignore the regulations on operation and maintenance of the chromatograph, if their testimony is to form the basis of a presumption of intoxication.
The appellee argues, however, that there has been "substantial compliance" with the regulations, citing Munn v. State, 257 Ark. 1057, 521 S.W.2d 535 (1975). The Munn Case concerned a finding by the court that there was no prejudicial effect where a blood sample was not tested within two hours of the alleged offense as required by health department regulation. The sample was taken about 12:40
a.m., and the alleged offense occurred at 9:30 p.m. the previous evening. Testing within this three-hour period was held to have been substantial compliance with the two-hour requirement where the testimony indicated that all other requirements were met and that blood alcohol content decreases as time passes.
We cannot find substantial compliance here, however. All we know is that the instrument was calibrated on May 10 and again on May 15. Although there is some testimony that the calibration procedure revealed, on the 15th, that the instrument was in the same, proper condition it had enjoyed on the 10th, in view of the clear requirement of the regulation, we should not allow speculation as to its condition on May 13. We hold there was no substantial compliance here, and unlike the Munn Case, there is no evidence upon which we can conclude this failure to abide by the regulation was not prejudicial to the appellant.
In addition, the appellant vigorously complains there was no testimony given that a measurement of body substance alcohol content by weight," as required by the statute, was conducted. As the trial judge stated in the record before us, this may raise a serious question of testimony adequate to raise the statutory presumption but we need not address it in view of the other inadequacy we have found.
We hold the evidence was not sufficient to form the basis of the instructed presumption. The other evidence produced in the case would not have supported a guilty verdict, and because we find the case has been fully developed, we dismiss rather than remand for new trial. Edens v. State, 235 Ark. 284, 357 S.W.2d 641 (1962). See also, Paschal v. State, 245 Ark. 396, 432 S.W.2d 879 (1968).
Reversed and dismissed.
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