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Rhodes v. Director of Revenue6/18/1999
could account for the .12 percent reading. Significantly, the chemist added: "So I cannot state that it . . . would definitely be below .1."
Having carefully compared the evidence in the instant case with the evidence in Green, this court holds the evidence favorable to Driver in the instant case is weaker than the evidence favorable to the motorist in Green.
First, the BAC DataMaster in the instant case produced a reading of .12 percent, whereas the reading in Green was only .104 percent. Consequently, Driver's blood alcohol concentration at the time of the test was .016 percent higher than the motorist's blood alcohol concentration in Green. The motorist's blood alcohol concentration in Green would have had to be only .005 percent lower at the time he was stopped than at the time of the test in order to be beneath .10 percent at the time of the stop. Yet, Green held the evidence insufficient to rebut Director's prima facie case.
In the instant case, Driver's blood alcohol concentration would have had to be .021 percent lower at the time he was stopped than at the time of the test in order to be beneath .10 percent at the time of the stop. That is four times the amount in Green (.005). It is thus evident that Driver in the instant case faced a more arduous challenge in rebutting Director's prima facie case than the motorist in Green.
Second, the chemist's theory about Driver's alcohol absorption rate in the instant case would have produced, at most, a reading of only .082 percent at the time Driver took the BAC DataMaster test. Yet, the result of that test was .12 percent. Driver does not assail the accuracy of that reading. Thus, the chemist's testimony in the instant case is inherently irreconcilable.
Finally, like the expert in Green, the chemist in the instant case admitted Driver's blood alcohol concentration at the time he was stopped could have been .10 percent or more.
This court therefore holds as a matter of law that the evidence in the instant case, even viewed most favorably toward Driver, is insufficient to rebut Director's prima facie case on the second element, i.e., the alcohol concentration in Driver's blood was ten-hundredths of one percent or more by weight at the time he was driving.
The judgment is reversed and the case is remanded to the trial court with a directive to enter judgment affirming Director's suspension of Driver's motor vehicle operator's license.
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