*1 BARTEL, of Bruce L. and Conservator DONNA Guardian Appel- incapacitated person, Plaintiff Bartel, W. an MONTANA, OF Defendant v. STATE lant, Respondent. No. 83-054. 7,May 1985.
Submitted Aug. 1985. Decided 1067. 704 P.2d *3 ar- Anaconda, K. Duckworth Edward argued, J. McKeon Michael appellant. Ronan, plaintiif and for gued, Legal Ser- Agency argued, Roy Andes argued and Hoven J. Daniel and Helena, Justice, for defendant Dept, of Bureau, vices respondent. Court. opinion of the delivered WEBER JUSTICE
MR. W. of Bruce conservator Bartel, guardian and as L. Donna Plaintiff action negligence this brought person, Bartel, incapacitated an of on the issue trial bench After Montana. of against the State judg- entered Court County District Clark liability, Lewis and appealed. Plaintiff of Montana. State of the defendant in favor ment judgment affirmed 2,1985, Court January this opinion By dated 383 of the District justices Court. Two of the participated who in the original case retired from Court. petitioned Plaintiff for rehear- ing. A rehearing granted. judgment We affirm the District Court. We original withdraw the opinion 2, 1985, January dated and opinion. substitute this
The issues are:
1. Did the District Court admitting err in into evidence without adequate foundation the results of a blood-alcohol test?
2. Are the District findings Court’s through supported fact 6 8 by substantial credible evidence?
Bruce severely Bartel injured motorcycle in a accident which occurred about 1:00 a.m. May on highway 1980 junction at a on the north Ignatius, end of St. Montana. accident, On the date of the years old, Bartel 24was weighed pounds, feet, 318 was 6 4 inches tall and physically was not mentally or impaired.
Bartel was a truck living Ronan, Montana, driver approximately 14 miles Ignatius. north of St. accident, On the date of the Bartel had lived in Ronan years about and had done at least a normal occupational amount of and traveling recreational in the Ronan area by motorcycle and four-wheel drive Beginning July vehicle. and continuing to the accident, date of the Bartel had driven St. Ignatius day about once a driving while a logging truck between Ro- nan and Thompson Falls. Bartel had Ignatius also visited St. at least during twice period this of time.
On day accident, Bartel pre- devoted much of his time paring for a trucking trip begin scheduled to day. the next He ate breakfast at a Ronan restaurant and ate later lunch a cafe in at Pablo. 3:00 p.m., Between and 4:00 stopped Bartel and a friend at Willard’s inBar Ronan where Bartel drank two beers. Sometime be- tween 6:00 p.m., 7:00 Bartel ate dinner at a local drive-in. Shortly p.m., after 7:00 purchased Bartel and six-pack two friends town, beer and drove during around which time Bartel drank one beer. p.m., 9:00 friends, Around Bartel met two George other Mitch- ell Cooper, bar, Gerald at another Ronan where Bartel drank at least two drinks consisting of whiskey scotch and water.
Shortly meeting, after this Bartel pickup his traded truck for motorcycle. Mitchell’s For evening, the rest of the drove Bartel motorcycle, Yamaha, Mitchell’s a cc. 750 and Mitchell Bartel’s drove pickup. Cooper riding motorcycle. his own
After meeting this exchange and of throughout vehicles and the rest of evening a.m., the until 1:00 the trio visited various bars be-
384 trial at testified witnesses Numerous Ignatius. St. and Ronan
tween and whether and bar each had at Bartel many drinks how regarding the testi- argues Bartel intoxicated. degree he became what to and water scotch of drinks 9 no more than he mony establishes the evidence contends State The 1:00 a.m. and p.m. 9:00 between p.m. and 9:00 between 15 drinks had about Bartel establishes day. for the total drinks 18 and 1:00 a.m. ap- They Ignatius. to St. south eventually headed group The (New 93 Highway on U.S. north from the Ignatius St. proached After Ignatius. St. to entrance north past the 93) drove but Highway Bartel bar, Cooper and Ignatius in a St. drinking pool and playing his on depart to intended Bartel because Ronan to to return decided morning. early next the trip trucking with motorcycles, the on Ignatius left St. Cooper Bartel and drove The two behind. distance some Bartel and lead the Cooper as “Old is know which Ignatius, St. of street main on the north anat intersects and north proceeds 93 Highway 93.” Old Highway Ignatius. of St. edge north the on93 Highway New with angle acute then and west from the Ignatius St. approaches 93 Highway New the to curve sweeping ain northwest on the Ignatius St. skirts Highway Old of intersection at the occurred accident north. Bartel’s is attached the intersection of diagram A Highway 93. New 93 and Appendix A. as opinion to this Highway Old northbound channel to designed intersection The on island large traffic first immediately the after left the to trafile 93 imme- sign stop stops at then roadway. Traffic of the side left the or Ronan toward north travel to left right or turning diately before the to channel following this than Rather Missoula. toward south Highway New turning onto before sign stop heeding the and left traffic second side along the east north straight drove Bartel High- New straight onto proceed to attempting island, apparently way 93. to east protrudes island traffic tip the second northern The from Old pavement line of straight abe otherwise would what into northern at protrusion Highway 93. onto New Highway channel to designed apparently island traffic tip second Airport onto right turn into traffic Highway Old northbound traf- prevent east, from the point at Road, enters As Bar- 93. Highway directly New onto straight proceeding fic from tip northern intersection, he struck through tel drove rest came control motorcycle, lost with island traffic
385 about 50 to 60 feet north in the pit barrow right on the side of the highway. Bartel was taken immediately Ignatius the St. hospital, where personnel quickly determined that the seriousness of injuries his re- quired treatment in Missoula. The St. Ignatius Hospital nurse who admitted Bartel made the notation “intox.” oh the form, admission along noting with symptoms. other Bartel was by transferred ambu- lance to St. Hospital Patrick’s in Missoula and arrived at the emer- gency room there at approximately 3:30 a.m. specimens Blood were drawn and an I.V. was started. The treating neurologist examined Bartel and concluded, among other things, that Bartel inwas a state of “alcoholic A intoxication.” test, blood-alcohol performed on Bar- tel solely for purposes, medical indicated a blood-alcohol level of percent. .171 upon Based percent .171 result, test expert wit- nesses testified at trial that Bartel’s blood-alcohol level was between .103 and percent .213 at the time of the accident. The complaint sought damages personal injuries resulting from
the motorcycle accident allegedly caused the State’s negligence in design and maintenance of the intersection and surrounding area. After discovery, extensive the case was tried before the Lewis and Clark County Court, District sitting without jury. Trial was on the issue of liability only.
On January 9, 1983 the court entered findings of fact and conclu- sions of law. On 18, January 1983 the court judgment entered favor of the defendant. The court’s findings of fact included the following: “6. As a result of his casual traveling in general and knowledge of the area, of regular his trips by and in proximity close to the inter- section at which the accident occurred and of his visits Igna- to St.
tius, he was thoroughly familiar with the question intersection in and how traffic moved from Ignatius St. through that intersection to Highway 93 en route north to Ronan. “7. May 27, On put he in an ordinary day’s work until four p.m., at which time and before five p.m. he had two beers. Between eight p.m., and nine after eating his supper, he drank another can of beer. Between nine p.m. on the 27th and the time of the accident at one a.m. on the 28th he drank not less than nine quite and probably twelve to fifteen drinks containing undetermined amounts of scotch whiskey.
“8. At the time of the accident his blood stream was carrying be- tween .103 and .213 percentage alcohol, which seriously impaired his reflexion, perception, sight, functions, including
sensory mental and ratiocination.” and reaction of fact. findings challenges these three
Bartel accident night that addition, found Court In District clear, no other and dry and roadway clear, dark but the head- found court in the accident. was involved traffic all traffic normally functioning motorcycle was light on the found court headlight. The clearly with discerned signs could be braking or m.p.h. without Bartel, speed of 25 to at a *6 the line and dividing yellow road’s passed across the decelerating, north its toward separation island lane, traffic with the collided left on in a ditch with landed it motorcycle and end, his of lost control and light the under that found court road. The right of the the side ordinarily accident, an the time of existing at conditions weather direction in Bartel’s traveling operator motor vehicle observant of end 350 feet than not less of a distance from have seen could indica- other seen have hit and could which Bartel the traffic island found court The intersection. through the proper route of the tions prudent and reasonably careful driving in a if had been Bartel that easily have alcohol, he could of influence not under and manner not was Bartel that island traffic with the collision avoided the maintenance. or signing design, “trapped” highway any way in construction, signing design, that found Although the court in “demonstrably deficient was intersection maintenance or standards national with comport did not respects and numerous found not were standards,” deficiencies these own the State’s even acci- no other that noted The court accident. cause of the to abe 1969, when the reported since been intersection at this dents installed. was traffic island violating in several negligent was that Bartel concluded court
The of influence under driving while including statutes, safety traffic failing in negligent was Bartel concluded also court alcohol. see under would person reasonably prudent hazard which see failing to react it, it or ignoring or, having seen circumstances The court concluded prudent manner. reasonable and it in a the accident. cause proximate sole was negligence Bartel’s in the State any negligence concluded that also The court appeals. Bartel the accident. proximate cause any degree a I
Did the admitting district err in court into evidence without ade- quate foundation the results of a test? blood-alcohol
Bartel contends that evidence of blood-alcohol test results was required inadmissible because the State failed to establish the foun- admission, required by McAlpine dation for its as v. Midland Elec- (Mont. Company 1981), tric St.Rep. 634 P.2d 1577. Bartel argues although stringent safeguards less foundational are re- quired admissibility of blood test in in results civil cases than cases, McAlpine criminal requires nonetheless procedures that test “good practice accord with in the field” to assure reliable results. Bartel alleges inadequacies numerous procedure the blood test which he good practice. contends are deviations from He medical alleges these deviations render the test results this case unrelia- ble. Bartel contends there is no evidence other than the blood test results that he was impaired ability intoxicated or in his to drive. Because the depended upon State’s showing defense that Bartel was intoxicated, argues Bartel that the erroneous admission of Exhibit X, report results, the lab containing extremely the blood test prejudicial and constitutes reversible error.
A review of the detailed appropriate foundation here. hospital Three employees regarding testified at trial Bartel’s blood test and procedure. routine blood Westphal-Marcus, test Barbara an participated R.N. who treatment, emergency Bartel’s room *7 charted the treatment Bartel received. The chart showed that an I.V. was started at a.m. drug 3:30 and that the mannitol was admin- a.m., although istered at 3:35 specifically the chart did not show However, when blood was Westphal-Marcus drawn. testified that as practice, a matter of routine testing blood is drawn for when an I.V. is started. She procedure described starting routine for an and I.V. drawing testing: patient’s blood for prepped alcohol the arm is with betadine, solution; a non-alcoholic in- needle and catheter are serted; catheter; the needle is then from the removed before the blood-drawing syringe catheter, is spilled inserted into the is catheter; from the syringe is inserted and 10 cc.’s of blood are drawn; put immediately tubes, the blood is into two marked with patient’s number, name and ER chart and handed to the lab technician.
Westphal-Marcus present testified she was when Bartel’s blood was practice, drawn. She stated that based on routine Bartel’s blood Responding
was drawn at a.m. 3:30 when the I.V. was started. questions court, nothing from the she indicated unusual had that been usually prep- done Bartel’s case. While for betadine is used ping testing anticipated, Westphal-Marcus where alcohol is could certainty not isopropyl state with that alcohol was not used on this However, spill occasion. she stated that the blood occurs syringe before the any is inserted and blood is drawn would remove taint isopropyl prepping caused use of an alcohol solution. She large noted that Bartel’s case a of catheter was used and lot spilled. blood was good practice She concluded that medical drawing used in Bartel’s blood the test results were and reliable.
Leilani Heuer is the lab technician tested Bartel’s blood. She who recognized copy X identified Exhibit as an accurate of the lab report prepared original printout she signed had from the test night of Bartel’s accident. Heuer described for the court the rou- testing procedure employed. testing tine She stated that the ma- every night chine is calibrated before the first test of as matter practice. produced routine She at trial the record of calibration for day quality testing blood test. She stated that control Bartel’s every day, kept only is done testing but records of that are for one year. isopropyl Heuer testified that alcohol would interfere with test it, only patient experience results if ingested and that in her negative though isopropyl test results had even alcohol had occurred prepare patient’s drawing. been used to skin for the blood Heuer original printouts specific kept, stated that machine tests are error, any printout but if she would the machine had indicated repeated receiving have the test until error-free results. Opal stipulated Spradlin’s deposition Chief Lab Technician testimony. drawing into evidence lieu of She stated that the usually isopropyl testing blood for alcohol done without use of personnel cleansing agent. hospital alcohol as a She that all noted competent. professionally who could have drawn Bartel’s blood were Spradlin procedures good concluded test accorded with medical practice to assure reliable medical results. Hutchinson, experienced in toxicologist
James D. a clinical blood- testing, alcohol listened to and testified the hos- Heuer’s Mueller, pital’s H. a fo- testing methods are accurate. Dr. Kenneth isopropyl affect pathologist, rensic that use of alcohol would testified only distinctly incompetent something test if abnormal or results *8 procedure drawing prepping in If done the blood. normal
389 in no alcohol, would result isopropyl isopropyl using followed as serum that a test on blood measurable difference. He testified only 2- opposed yield difference of would a maximum whole blood any pos- percent. significant 3 if there had been Mueller stated that test, called to sibility in it would have been of error Bartel’s blood someone’s attention. (Mont. 1981), P.2d McAlpine Company 634
In
v. Midland Electric
1166,
re-
St.Rep. 1577,
appellant
arguments
38
raised several
garding
test results which
foundation for admission of blood-alcohol
There, appellant argued
that
are similar to those raised
Bartel.
post-mortem
proponent
had failed to show that
evidence
reading;
in
failed
clotting
higher
did not result
blood-alcohol
procuring
testing
samples
and
of the
followed
show that
Montana;
procedures
in
failed to
set out
the Administrative Rules of
bodies;
failed to
show the blood tested came from the victims’
and
produce
chromatograph
the test re-
gas
records which recorded
1170,
St.Rep.
sults.
In this Court held that adminis- prosecution trative rule in a criminal where results are to be used In required admissibility are trial. so for of test results a civil holding, Transportation quoted we Bach v. Penn Central from (6th Company 1974), 1117, stated that while Cir. 502 F.2d procedures case comply test with criminal civil trial use need not “ statutory procedures, practice in the ‘they good with must accord ” 1171, McAlpine, field P.2d at 38 to assure reliable results.’ 634 1583, Bach, St.Rep. 1121. quoting at 502 F.2d at We concluded employed procedures in that case “established that the St.Rep. at good practice followed P.2d at the field.” 634 today. 1583-84. We adhere to that test 406(b), or of provides
Rule M.R.Evid. of habit “[e]vidence not, practice, regardless of the routine whether corroborated or and par- presence eyewitnesses, prove conduct on a is relevant to prac- conformity ticular with the habit or routine occasion was practice” regular tice.” “a course of conduct “Routine is defined as 406(a), group persons organization.” of a an Rule M.R.Evid. or Hospital personnel experts length at and medical testified drawing practices employed hospital in routine medical at the at also testified testing blood for alcohol content. These witnesses prac- practices good medical length to whether those accord with as witness, all wit- exception expert single tice. With the of Bartel’s employed procedures testifying point agreed that the nesses on this yielded reliable and accu- good practice were in accordance with *9 testimony prior heard During foundation rate results. the extensive X, judge questioned experienced to the trial admission of Exhibit question points. response In to a the witnesses detail on various the court, she believed that Westphal-Marcus indicated from the did not deviate from drawing procedure used in Bartel’s case blood Further, per- that she hospital procedure. Heuer stated routine procedures. The using good, reliable formed the Bartel blood test relating testimony specifically to testimony, together above with test, adequate foundation provided Bartel’s blood was relevant and support to admission of Exhibit X. credible evidence substantial
We hold that the record contains with procedure employed in this case accorded to that the test show good practice to assure reliable results. medical testimony portions vigorously emphasizes those of
Bartel test results were support that the blood argues he his contention estab- necessary was not argues the foundation inadmissible. He he facts which establish certain lished because the State failed to will discuss admissibility the results. We argues of are essential light record. each these contentions of the of positively identify failure to argues 1. Bartel that the State’s admissibility of person precludes who drew Bartel’s blood Westphal-Marcus established testimony of R.N. test results. The from specimens drawing the blood present that she was for the of Clausen, Supervi R.N., Night Kirk, Bill Jackie Bruce Bartel as was at the time sor, present she was and the medical doctor. While Kirk Nurse she or drawing, not recall whether the blood she could length regarding the testify sample. did at had drawn the blood She Her testi drawing blood. customarily in the procedure followed registered the two mony that of other witnesses established familiar both qualified blood and were to draw nurses were both completed Westphal-Marcus hospital practices. Nurse with routine regard to the treat with portion emergency room records and the Bartel, cross-matching of blood particularly the ment of Mr. by Nurse procedure used The routine ordering of the blood test. hospital was established in the Westphal-Marcus and other nurses in records nothing the written There is without contradiction. Westphal-Marcus procedures. Nurse any from these dicate deviation in Mere procedures. from routine there was no deviation testified par completed this registered nurses ability which of two to recall basis to years not a sufficient lapse is of two ticular blood test after While it would test itself. admissibility of the blood challenge the withdrawing of the nurse preferable the name have been records, Westphal- emergency Nurse room blood be shown on the severely-in- they busy taking care of were so Marcus indicated the records. Bartel, placed on jured patient, this had not been tests con- of blood very large number established the in the Westphal-Marcus personnel by hospital ducted and Nurse circumstances of operation. Under the emergency course of room case, registered nurses which of two this the failure to establish admissibility the test preclude does not withdrew results. the time failed to establish
2. Bartel contends that the State it must argues critical because when was drawn. He this is the blood interfere with test of mannitol did not be shown that administration results, drawing critical to the ac time of blood and also because degree of curacy by experts of calculations made to determine *10 draw The time of the blood intoxication at the time of the accident. ing certainly Westphal-Marcus testified significant is a fact. Nurse blood specifically that the time of the the records did not disclose at 3:30 drawing, only the I.V. was commenced but established that that given and that Bartel at 3:35. She testified mannitol was to Mr. by followed practice, the routine which she and which was followed required of hospital, other in the withdrawal nurses the would have prior to promptly of the I.V. and the blood after the commencement Heuer, the lab giving the of Leilani of mannitol. test, com that she technician conducted the blood established who than pleted her not less her that it would have taken test at 4:30 and does not complete that evidence one-half hour to the test. While time, the probability the that specific indicate a it does confirm findings on and 4:00 a.m. The blood was withdrawn between 3:30 it concluded that the part indicate that the of the District Court a.m., begun. I.V. was the blood was drawn at close to 3:30 when support that conclusion. certainly evidence to There is substantial only speculation contrary, the in but There is fact no evidence to the Mr. Bartel argument of that the raised Mr. Bartel. We conclude must also fail. there mannitol interference that demonstrate that argues State’s failure to 3. Bartel that the to the preparation is fatal used for skin non-alcoholic solution was that the testified admissibility. Westphal-Marcus test result’s Nurse solution, Betadine, when practice routine is to use a non-alcoholic However, specifically re- testing anticipated. she could alcohol is member the nature of the Bartel. She did ex- solution used on Mr. plain started, pointing detail the of the I.V. out nature making veni-puncture, that after is withdrawn from the the needle tourniquet significant catheter with the still on arm so there is a the inserted, spilling syringe of blood on at which the floor before the testing purposes. time the 10 cc.’s of taken She blood are out prior concluded that even if had been used to swab the arm alcohol I.V., spilled to the commencement of the so much blood was any she did Dr. not believe there could have been contamination. Mueller, pathologist, studies on forensic testified that he had done isopropyl the effect of the swabs on the measurement use of alcohol ethyl only way alcohol. Dr. he had found the it Mueller testified ethyl if would affect the alcohol result was the needle was with- or, in through sponge drawn with the suction still on other words, doing something distinctly incompetent abnormal or ordinary way pre- withdrawing the blood. He testified that in the alcohol, simply paring example “isopropyl an arm for alcohol with addition, give In did not measurable amounts of alcohol.” he testi- drug interfering fied is not an substance with the mannitol We, therefore, testing present method of alcohol used case. conclude that a failure that a non-alcoholic solution to demonstrate admissibility was used is not test. fatal to the argues 4. Bartel that the State failed to show that Bartel’s abnor- However, body mal results. chemistries did not interfere with test body nothing, indicating chemistries actu- the record contains ally affected test results.
5. results are inadmissible be Bartel contends that test printout produce original cause the test machine State failed produce quality produce Failure to and failed to control records. original preclude admissibility results. printout test does not of test 1171-72, McAlpine, St.Rep. at 1584. Heuer testi See 634 P.2d at *11 by recording report prepared fied that Exhibit X was the lab she Further, repeated if test results. she she would have the test stated necessary Spradlin testified get to an error-free result. Heuer and pre hospital routinely quality procedures, that the followed control daily procedures. procedures calibration ventive maintenance in We find no merit these contentions. be- Finally, argues inadmissible
6. Bartel that the test results were testing than whole show serum rather cause State failed to that than test failed to show that more blood did not affect results and contrary, testified sample Dr. Mueller one blood was tested. On
393 significant was not blood testing rather than whole of serum in percent more than 2-3 no it account for error of because could samples un- Further, multiple test were he stated that test results. contentions. reject these necessary accurate results. We of the al- significance Despite vigorous argument as to the Bartel’s to estab- testimony, has failed Bartel leged omissions in foundation procedure which affects any inadequacy in the blood test lish actual sig- McAlpine, found it In we admissibility test results. of the blood support his presented no evidence appellant nificant had that the seriously affected test clotting post-mortem contention most, for a appellant had laid a basis results. We stated that at changed be- suggestion of the victims’ blood that the condition con- drawing the blood. We tween the the time of time of death and admissibility.” goes weight, suggestion cluded that “[s]uch 1171, St.Rep. at 1583. 634 P.2d at variety manner, the basis for a In has at most laid a similar Bartel in some manner suggestions test results were that Bartel’s blood jurisdic- foreign cited numerous cases from unreliable. Bartel has inadmissibility Exhibit X. argues tions which he establish the Lessenhop v. generally the rule established These cases follow 107, (1967), requires that Norton Iowa 153 N.W.2d which evidence, spe- of 9 may each before blood test results be admitted requirements in- requirements cific factual must be satisfied. These was drawn and showing clude a of the time at which the blood 112. N.W.2d at identity person the blood. 153 who drew list of facts requires that each of a the rule which We do not follow test admissibility blood-alcohol be established as foundation for requires that Rather, McAlpine rule results. we follow the assure reliabil- procedures good practice in the field to accord with in the field is a ity. good practice procedures accord with Whether of a upon and circumstances question decided based the facts to be testimony Having concluded expert received. particular case and practice as fol- finding good medical supports a that the record raised case, in foundation alleged omissions lowed in this its than rather go weight of the Bartel to the admissibility. admitting into evi- did not err
We hold that the District Court test. dence the results of Bartel’s blood-alcohol *12 394
II Are findings through sup- the District Court’s 8 fact number 6 ported by substantial credible evidence? unsup-
Bartel’s findings contention that of fact number 7 and 8 are ported by depends upon substantial credible evidence the inadmissi- bility upon of blood test results and Bartel’s characterization of regarding impairment. other evidence his intoxication and We have properly concluded that the evidence of blood test results was ad- mitted. We would also conclude there is additional evidence which supports findings by these the District Court. Cooper,
Gerald drinking companions, one of Bartel’s could not re- many any they member how drinks Bartel had at of the bars visited. George they investigating Mitchell told had officer Schmauch that drinking, been barhopping. Mitchell testified that Bartel had 9 or Randy Merryman, County Deputy more drinks. a Lake Sheriff who accident, present immediately was at the scene after the stated that very there was a strong definite odor of alcohol on Bartel’s breath. Court, registered Ignatius Hospital Karla St. who filled nurse at Bartel, report out the initial on while she stated she did not know intoxicated, for sure alcohol on him that Bartel was said the smell of “pretty strong.” Cooney, treating physician was Dr. at St. Patrick’s Missoula, Hospital experience recognizing in stated he has in intoxi- cation, intoxication, very that the smell of alcohol is characteristic of the notation that the alcohol smell on Bartel was the basis for report on his that Bartel was intoxicated.
Although testimony regarding there was the number extensive be, appeared of drinks Bartel had and how drunk he the testi mony contradictory was and none of the witnesses could could state definitely many The how drinks Bartel had or how drunk he was. testimony anywhere supports finding collected that Bartel had p.m. night 9 a.m. on the from to 15 drinks between 9:00 and 1:00 finding of fact number accident. The District Court concluded “quite probably 12 7 that Bartel consumed to 15 drinks contain whiskey.” ing undetermined amounts of scotch support this find- We there is credible evidence to hold substantial Marriage ing. re-weigh conflicting This evidence. Court will not (Mont.1984), 66,] P.2d 1221 at 1224 Smith Mont. [214 testimony presented regarding Bartel’s blood- Extensive degree to which he alcohol level at the time of the accident and the key impaired. points, on these as on most other points case, conclude, however, sharp this was in conflict. We supports respect substantial finding evidence of fact number 8 with degree to Bartel’s blood-alcohol level and of intoxication. Hutchinson, Mr. toxicologist experience a clinical with extensive testing toxicology, upon blood-alcohol and forensic stated based possible certain it known factors to calculate with reasonable sci- *13 reliability entific the blood-alcohol level of a certain individual at a certain time. length regarding Hutchinson then at the de- testified tails 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, certainty. within a degree reasonable of medical The blood-al- expressed cohol range level was of values into account as a to take the unknown variables of individual elimination and individual rate absorption require rate. This level would the drink individual proof around 18 to 21 ounces of 86 scotch. Hutchinson’s by was corroborated Dr. Mueller.
Dr. person’s Mueller further testified that at about .08 a visual acu- ity significantly vision, is peripheral affected. The alcohol decreases ability recognize objects clearly, focus, to ability ability to being by recover after bright light. “Starting blinded at about .08 system effect of alcohol produce is to a kind of tunnel level, vision.” majority severely At a .15 people the vast are af- fected in driving important a motor driving vehicle. Functions are impaired less, though at .15 or signs even there are no obvious apparent drunkenness in those habituated to alcohol. Dr. Mueller very unusual, stated that unless Bartel he would have suffered these effects.
We hold support there is substantive credible evidence to the Dis- 8, trict finding Court’s of fact number the time of the “[a]t accident, carrying Bartel’s blood stream was between .103 and .213 alcohol, percentage seriously impaired sensory which Ins' and mental . . . .” functions 6, finding
Bartel also contends that of fact number that Bartel “thoroughly intersection,” supported familiar with is not disagree. substantial credible evidence. We The record indicates past daily many that Bartel had driven this intersection months prior every to the accident. Bartel had driven denied at trial that he through Ignatius. this intersection or he a friend in St. This had impeached through deposition statement was Bartel’s at trial having having Ignatius he admitted visited a friend in St. through specifically driven the intersection. The trial court found previously that Bartel Ignatius been in St. on several occasions and that Bartel traveling during had done extensive in the area years he lived in Ronan.
We hold there is support substantial credible evidence to the Dis- finding trict Court’s of fact findings number as well as number 7 and 8.
Ill Finally, we by appellants turn to an issue which was not raised but which was argument. discussed in oral The issue was whether the erroneously District Court negligence concluded that Bartel’s proximate the sole cause of the accident. specifically
The court found light that under the and weather con- ditions at the ordinarily time of the accident an observant driver could observe:
“A. From a distance of not less than 450 of the feet south north roadway end traffic island the itself could be seen to curve to right, or east. B. The end of the island and its hook were visible from approaching feet, an point distance of not less than 350 designated bypass Highway point approxi- 93. C. From a *14 mately point 200 feet approximately to a 50 feet from the north end yellow discernible, island the stripe clearly center line was as were the stripes white border curbing and the of the island. D. From a distance of at least 150 feet south of the north end of the island an passage clearly unobstructed Highway 93 was discernible. E. The triangular cautionary ‘yield’ sign could be observed at least 400 feet south of the north end of the island.”
Investigating Highway Patrol Officer G. Richard Schmauch testi- fied as follows:
“Q Officer, your experience your your based on training, inves- tigation particular accident, your this you observations do have opinion an as to the cause of this accident? Yes, sir,
“A I do.
“Q opinion? And what is that
“A Just part operator. carelessness on the “Q why you say And do that? attention,
“A I person paying obeying Because know that if a area, signs laws and the in the that he would not have contacted that divider.” previously
As
set forth
if Bartel
the District Court concluded that
driving
reasonably
prudent
been
careful and
manner and
alcohol,
not under the
easily
influence of
have
he could
avoided
collision with the traffic island. He also concluded that Bartel was
any way trapped by
not in
highway design, signing or maintenance.
findings
regarding proxi-
and conclusions of the District Court
challenged by
appeal.
mate cause are not
Bartel on
We
support
hold there is substantial credible evidence to
District
findings
negligence
Court’s
and conclusions that Bartel’s
proximate
the sole
McAlpine
cause of the
v. Dahl
accident. See
(1978),
1307;
(D.
179 Mont.
585 P.2d
Jimison v. United States
1967),
F.Supp. 674,
Mont.
affirmed Jimison v. United States
(9th
1970),
Cir.
We affirm the of the District Court. MR. CHIEF JUSTICE HASWELL and MR. JUSTICES GUL- McCARVEL, BRANDSON and HON. Judge sitting JOHN District HARRISON, for MR. JUSTICE concur. *16 SHEEHY, dissenting:
MR. JUSTICE by by and the unqualified acceptance I this Court dissent from the here. light in of the record District Court of the results blood test has now been my original original opinion In dissent to the the withdrawn, laid for I had been contended that no foundation I here. supposedly scientific alcohol concentrations tests of the blood mini- opinion at a in new because continue here that dissent to the mum, the fol- should include for scientific test results a foundation (1) quali- persons in the test were lowing engaged that the factors: (2) fied; proper in components were that the machine used and its condition; (3) properly and test was conducted. the (1) (3) case,
In incredi- this have not been shown. It is factors and precise time in which hospital ble that the does not show the chart Bartel, person the blood nor the who withdrew was withdrawn from part of the the blood. Thus we evidence as to how have no direct conducted, part, drawing the blood important test was a most sample A withdrawn from itself. record of the time the blood was especially after important, Bartel was if the blood was taken because administered, a.m., sub- the test was mannitol had been at 3:35 then ject crystaline having a is a alcohol considerable doubt. Mannitol make-up If was withdrawn chemical of C6H1406. Bartel’s blood administered, isopropyl was used to before the but mannitol was withdrawn, is till a swab the there location where the blood was (not problem isopropyl has a experts) because admitted the State alcohol, ethyl symbol make-up chemical C3H80. The chemical intoxicating agent liquor in is C2H60. Court, another, prey pseudo-sci- many like fallen to the has blood, to deter- ence of alcohol in urine or breath concentrations con- using statutes alcohol mine drunkenness. With the advent of holy mystique has driving, of a sort centrations to define drunk a and grown up in those statutes. Courts around the levels defined experience lawyers chemistry spite in own untutored in of their They adopt as es- accept question. the statutes these levels without nondrunken- tablishing sharp cleavage drunkenness between con- assumption having an alcohol ness. The is embraced that one drunk, having an alcohol is but one centration of less than 0.10 drunk, assump- though greater even concentration than 0.10 is obser- is our common personal tion belies their observation. It own carry than others. people their booze better vation that some arbitrary is an forgotten is is alcohol concentration What that 0.10 with- arbitrary alcohol concentration figure, proof so of such an more, out in operating itself a motor vehicle. Section crime 61-8-406, 1971, legislative MCA. Until the amendment the former arbitrary figure was 0.15 which would be half alcohol concentration 1947, again 32-2142, as much R.C.M. alcohol the blood. Section (1971). amended Ch. Laws of Montana wit- give greater probity Now courts test results than to persons, nesses’ should be observations of drunken when the reverse paraphrase pornography, true. de- To the remark about we cannot drunkenness, case, fine In but we know it when we see it. this there consumed, liquor was a wealth evidence about the amount of appearance, breath, eyes, speech, the gait, the slurred that, principally lack of relied coordination had the District Court *17 results, heavily on I would then these and not so on the blood test support weighed so judgment. its But test results because blood Bartel, I heavily opinion determining in in of am its the intoxication forced to dissent.
I worshipped have never of test results because at the shrine blood they idol, clay part are for the a with feet of and the most false gas chromatograph. heart of a
It majority is evident that the and the District Court have results, thoroughly implications thought out the of blood test be- blithely accepts of cause each that Bartel had “a blood alcohol level accident, percent” blood alco- .171 or that at the time of the Bartel’s percent.” hol was “between Percent of what? Blood .103 and .213 they percentage alcohol in unless levels cannot be defined terms of expressed weight percentage are in of vol- percentage terms of of or in this weight ume. Neither volume nor is met under the evidence case. concentration,” purpose defining
The for the of statute “alcohol case, requires grams per this milliliters of blood. Sec- of alcohol 100 61-8-407, weight. tion Milliliters are MCA. Grams are a measure of expressed in terms of the other measure of volume. One cannot be exactly compared weigh percentage being unless the substances the same. fact, water, In it on water. lighter
Alcohol is than because floats 0.789, specific compared to water gravity absolute alcohol of has water, both specific gravity 1. is thicker than which has a of Blood human socially physically. specific gravity I of do not know the specific gravity of suspect greater I blood but that it is than in water. my personal is that blood sinks water because observation therefore, alcohol, weigh much less than A would cubic centimeter a cubic If centimeter of human blood. we milliliter mix- had a 100 ture of percent water and alcohol of which the alcohol consisted of by volume, the alcohol in If weigh grams. the mixture would 0.789 percent by alcohol in the weight, same mixture constituted 1 nearly mixture would contain 1.267 cubic centimeters of alcohol. Chemically that is a vast difference.
It is for that defining reason that the statute alcohol concentration now avoids percent, references weight and relates instead to per alcohol however, volume of nothing, blood. There is in the rec- ord before us experts to tell us talking what the so-called were about they when referring “percent” were determining blood alcohol levels.
Lost in mumbo-jumbo pseudo-science of blood alcohol tests is the fact that the tests infinitesimally involve small amounts. This is statutory because blood alcohol terms are couched terms measures, of metric perhaps purposely so. Most Americans do not comprehend relationship between metric measures and their equivalents. U.S. may helped 61-8-407, MCA, It have if section defined “alcohol concentration” as the number of 0.035 ounces of per (A alcohol ounce.) 6.1 cubic gram inches of blood. is 0.035 We might grasp be able to then that if Bartel’s blood alcohol level was 0.171 (assuming grams) that 0.171 refers to that his actual alcohol per (0.171 0.035). level ounce was 0.005985 x way, Put if another each ounce of his blood parts, was broken into a thousand at a 0.171, alcohol level parts six of that blood would constitute alcohol. figures minuteness of system those is lost in the metric
pseudo-science of blood alcohol levels. Minute amounts of alcohol in *18 the blood can cause intoxication. Minute amounts of other alcohol- substances, related present, if seriously can distort blood test results.
I weight given results, fear the especially to blood test in civil cases where convincing other and more evidence of drunkenness is availa- ble. I fear the experts testify margin who for percent.” error tests “2 percent these to 3 Two of 0.005985 is truly I any 0.0001197. capa- doubt machines available here are measuring ble of part. accept down to the ten millionth If we these question, statements without we have been overtaken a form of guise doublethink in the of metric measures.
Please do not hospital answer that and doctors used the blood test results for purposes, their medical and therefore the results tests people did not blood must be The medical here need accurate. “in- drinking. The man had nurse wrote to determine that this been upon him. That ob- toxicated” the first moment she saw the chart on blood test. servation not based reasons, rigid requirement I set a For these would foundational enough. test Routine would not be the admission evidence. escape impact of perfect perfect can No routine and no machine imperfect elevated being. majority this case have human infallibility. routine into that the District Court grounds
I would reverse this case on the which no found evidence based on the blood tests for of intoxication proper reason the blood was laid and for the further foundation per vol- statutory weight scheme of results do relate to the test of blood. ume HUNT, dissenting:
MR. JUSTICE Sheehy. I concur the dissent of Mr. Justice MORRISON, dissenting: MR. JUSTICE Sheehy. I in the of Mr. concur dissent Justice