No. 83-54 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

DONNA L. B-gRTEL, Guardian and 

Conservator of BRUCE W. BARTEL, 

an incapacitated person, 

Plaintiff and Appellant, 

-vsSTATE OF MONTANA, 

Defendant and Respondent. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Gordon Bennett, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Michael J. McKeon argued, Anaconda, Montana 

Edward K. Duckworth argued, Ronan, Montana 

For Respondent: 

Roy Andes argued, Agency Legal Services Bureau, 

Helena, Montana 

Submitted: May 7, 1985 

Decided: August 27, 1985 

Filed: #iuc~ s : 198% 

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i!6zdL */- 

Clerk 
Mr. Justice Fred J. Weber delivered the opinion of the Court. 

Plaintiff Donna L. Bartel, as guardian and conservator 

of Bruce F7. Bartel, an incapacitated person, brought this 

negligence action against the State of Montana. After a 

bench trial on the issue of liability, the Lewis and Clark 

County District Court entered judgment in favor of the defendant State of Montana. Plaintiff appealed. By opinion dated 

January 2, 1985, this Court affirmed the judgment of the 

District Court. Two of the justices who participated in the 

original case retired from the Court. Plaintiff petitioned 

for rehearing. A rehearing was granted. We affirm the 

judgment of the District Court. We withdraw the original 

opinion dated January 2, 1985, and substitute this opinion. 

The issues are: 

1. Did the District Court err in admitting into 

evidence without adequate foundation the results of a 

blood-alcohol test? 

2. Are the District Court's findings of fact 6 through 

8 supported by substantial credible evidence? 

Bruce Bartel was severely injured in a motorcycle 

accident which occurred about 1:00 a.m. on May 28, 1980 at a 

highway junction on the north end of St. Ignatius, Montana. 

On the date of the accident, Bartel was 24 years old, weighed 

318 pounds, was 6 feet, 4 inches tall and was not physically 

or mentally impaired. 

Rartel was a truck driver living in Ronan, Montana, 

approximately 14 miles north of St. Ignatius. On the date of 

the accident, Bartel had lived in Ronan for about 6 years and 

had done at least a normal amount of occupational and 

recreational traveling in the Ronan area by motorcycle and 

four-wheel drive vehicle. Beginning in July 1979 and 

continuing to the date of the accident, Bartel had driven by 

St. Ignatius about once a day while driving a logging truck 
between Ronan and Thompson Falls. Bartel had also visited 

St. Ignatius at least twice during this period of time. 

On the day of the accident, Bartel devoted much of his 

time preparing for a trucking trip scheduled to begin the 

next day. He ate breakfast at a Ronan restaurant and later 

ate lunch at a cafe in Pablo. Between 3:00 and 4:00 p.m., 

Bartel and a friend stopped at Willard's Bar in Ronan where 

Bartel drank two beers. Sometime between 6:00 and 7:00 p.m., 

Bartel ate dinner at a local drive-in. Shortly after 7:00 

p.m., Bartel and two friends purchased a six-pack of beer and 

drove around town, during which time Bartel drank one beer. 

Around 9:00 p.m., Bartel met two other friends, George I 

Mitchell and Gerald Cooper, at another Ronan bar, where 

Bartel drank at least two drinks consisting of scotch whiskey 

and water . 

Shortly after this meeting, Bartel traded his pickup 

truck for Mitchell's motorcycle. For the rest of the 

evening, Bartel drove Mitchell's motorcycle, a 750 cc Yamaha, 

and Mitchell drove Bartel's pickup. Cooper was riding his 

own motorcycle. 

After this meeting and exchange of vehicles and 

throughout the rest of the evening until 1:00 a.m., the trio 

visited various bars between Ronan and St. Ignatius. 

Numerous witnesses testified at trial regarding how many 

drinks Bartel had at each bar and whether and to what degree 

he became intoxicated. Bartel argues that the testimony 

establishes he had no more than 9 drinks of scotch and water 

between 9:00 p.m. and 1:00 a.m. The State contends the 

evidence establishes that Bartel had about 15 drinks between 

9:00 p.m. and 1:00 a.m. and 18 drinks total for the day. 

The group eventually headed south to St. Ignatius. They 

approached St. Ignatius from the north on U.S. Highway 93 

(New Highway 93) but drove past the north entrance to St. 
Ignatius (Old Highway 93) and continued south n New Highway 

93 for approximately 3/4 mile to the south entrance to St. 

Ignatius. After playing pool and drinking in a St. Ignatius 

bar, Cooper and Bartel decided to return to Ronan because 

Bartel intended to depart on his trucking trip early the next 

morning. 

Bartel and Cooper left St. Ignatius o the motorcycles, 

with Cooper in the lead and Bartel some distance behind. The 

two drove north on the main street of St. Ignatius, which is 

known as "Old Highway 93." Old Highway 93 proceeds north and 

intersects at an acute angle with New Highway 93 on the north 

edge of St. Ignatius. New Highway 93 approaches St. Ignatius 

from the west and than skirts St. Ignatius on the northwest 

in a sweeping curve to the north. Bartel's accident occurred 

at the intersection of Old Highway 93 and New Highway 93. A 

diagram of the intersection is attached to this opinion as 

Appendix A. 

The intersection is designed to channel northbound Old 

Highway 93 traffic to the left immediately after the first 

large traffic island on the left side of the roadway. 

Traffic then stops at a stop sign immediately before turning 

right or left to travel north toward Ronan or south toward 

Missoula. Rather than following this channel to the left 

and heeding the stop sign before turning onto New Highway 93, 

Bartel drove straight north along the east side of the second 

traffic island, apparently attempting to proceed straight 

onto New Highway 93. 

The northern tip of the second traffic island protrudes 

to the east into what would otherwise be a straight line of 

pavement from Old Highway 93 onto New Highway 93. The 

protrusion at the northern tip of the second traffic island 

apparently was designed to channel northbound Old Highway 93 

traffic into a right turn onto Airport Road, which enters at 
that point from the east, and to prevent traffic from 

proceeding straight directly onto New Highway 93. As Bartel 

drove through the intersection, he struck the northern tip of 

the traffic island with the motorcycle, lost control and came 

to rest about 50 to 60 feet north in the barrow pit on the 

right side of the highway. 

Bartel was taken immediately to the St. Ignatius 

hospital, where personnel quickly determined that the 

seriousness of his injuries required treatment in Missoula. 

The St. Ignatius Hospital nurse who admitted Bartel made the 

notation "intox." on the admission form, along with noting 

other symptoms. Bartel was transferred by ambulance to St. 

Patrick's Hospital in Missoula and arrived at the emergency 

room there at approximately 3:30 a.m. Blood specimens were 

drawn and an IV was started. The treating neurologist 

examined Bartel and concluded, among other things, that 

Bartel was in a state of "alcoholic intoxication." A 

blood-alcohol test, performed on Bartel solely for medical 

purposes, indicated a blood-alcohol level of .I71 percent. 

Rased upon the .I71 percent test result, expert witnesses 

testified at trial that Bartel's blood-alcohol level was 

between .lo3 and .213 percent at the time of the accident. 

The complaint sought damages for personal injuries 

resulting from the motorcycle accident allegedly caused by 

the State's negligence in design and maintenance of the 

intersection and surrounding area. After extensive 

discovery, the case was tried before the Lewis and Clark 

County District Court, sitting without a jury. Trial was on 

the issue of liability only. 

On January 9, 1983 the court entered findings of fact 

and conclusions of law. On January 18, 1983 the court 

entered judgement in favor of the defendant. The court's 

findings of fact included the following: 
"6. As a result of his casual traveling in and 

general knowledge of the area, of his regular trips 

by and in close proximity to the intersection at 

which the accident occurred and of his visits to 

St. Ignatius, he was thoroughly familiar with the 

intersection in question and how traffic moved from 

St. Ignatius through that intersection to Highway 

93 en route north to Ronan. 

"7. On May 27, 1980, he put in an ordinary day's 

work until four p.m., at which time and before five 

p.m. he had two beers. Between eight and nine 

p.m., 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 and quite probably twelve 

to fifteen drinks containing undetermined amounts 

of scotch whiskey. 

"8. At the time of the accident his blood stream 

was carrying between .lo3 and .213 percentage 

alcohol, which seriously impaired his sensory and 

mental functions, including sight, perception, 

reflexion, reaction and ratiocination." 

Bartel challenges these three findings of fact. 

In addition, the district court found that the night of 

the accident was dark but clear, the roadway was dry and 

clear, and no other traffic was involved in the accident. 

The court found that the headlight on the motorcycle was 

functioning normally and that all traffic signs could be 

discerned clearly with the headlight. The court found that 

Bartel, at a speed of 25 to 30 m.p.h. and without braking or 

decelerating, passed across the road's yellow dividing line 

and the left lane, collided with the traffic separation 

island toward its north end, lost control of his motorcycle 

and landed with it in a ditch on the right side of the road. 

The court found that under the light and weather conditions 

existing at the time of the accident, an ordinarily observant 

motor vehicle operator traveling in Bartel's direction could 

have seen from a distance of not less than 350 feet the end 

of the traffic island which Bartel hit and could have seen 

other indications of the proper route through the 

intersection. The court found that if Bartel had been 

driving in a reasonably careful and prudent manner and not 
under the influence of alcohol, he could have easily avoided 

the collision with the traffic island and that Bartel was not 

in any way "trapped" by highway design, signing or 

maintenance. 

Although the court found that the design, construction, 

signing and maintenance of the intersection was "demonstrably 

deficient in numerous respects and did not comport with 

national standards or even the State's own standards," these 

deficiencies were not found to be a cause of the accident. 

The court noted that no other accidents at this intersection 

had been reported since 1969, when the traffic island was 

installed. 

The court concluded that Bartel was negligent in 

violating several traffic safety statutes, including driving 

while under the influence of alcohol. The court also 

concluded that Bartel was negligent in failing to see a 

hazard which a reasonably prudent person would see under the 

circumstances or, having seen it, ignoring it or failing to 

react to it in a reasonable and prudent manner. The court 

concluded that Bartel's negligence was the sole proximate 

cause of the accident. The court also concluded that any 

negligence of the State was not in any degree a proximate 

cause of the accident. Bartel appeals. 

I 

Did the district court err in admitting into evidence 

without adequate foundation the results of a blood-alcohol 

test? 

Bartel contends that evidence of blood-alcohol test 

results was inadmissible because the State failed to 

establish the required foundation for its admission, as 

required by McAlpine v. Midland Electric Company (Mont. 

1981), 634 P.2d 1166, 38 St.Rep. 1577. Bartel argues that 

although less stringent foundational safeguards are required 
for admissibi-lity of blood test results in civil cases than 

in criminal cases, McAlpine nonetheless requires that test 

procedures accord with "good practice in the field" to assure 

reliable results. Bartel alleges numerous inadequacies in 

the blood test procedure which he contends are deviations 

from good medical practice. He alleges these deviations 

render the test results in this case unreliable. Bartel 

contends there is no evidence other than the blood test 

results that he was intoxicated or impaired in his ability to 

drive. Because the State's defense depended upon showing 

that Bartel was intoxicated, Bartel argues that the erroneous 

admission of Exhibit XI the lab report containing the blood 

test results, was extremely prejudicial and constitutes 

reversible error. 

A review of the detailed foundation testimony is 

appropriate here. 

Three hospital employees testified at trial regarding 

Bartel1s blood test and routine blood test procedure. 

Barbara Westphal-Marcus, an R.N. who participated in Bartel's 

emergency room treatment, charted the treatment Bartel 

received. The chart showed that an IV was started at 3:30 

a.m. and that the drug mannitol was administered at 3:35 

a.m., although the chart did not show specifically when blood 

was drawn. However, Westphal-Marcus testified that as a 

matter of routine practice, blood is drawn for testing when 

an IV is started. She described routine procedure for 

starting an IV and drawing blood for alcohol testing: the 

patient ' s arm is prepped with betadine, a non-a lcoholic 

solution; the needle and catheter are inserted; the needle is 

then removed from the catheter; before the blood-drawing 

syringe is inserted into the catheter, blood is spilled from 

the catheter; the syringe is inserted and 10 cc's of blood 

are drawn; the blood is put immediately into two tubes, 
marked with the patient's name and ER chart number, and 

handed to the lab technician. 

Westphal-Marcus testified she was present when Bartel's 

blood was drawn. She stated that based on routine practice, 

Bartel's blood was drawn at 3:30 a.m. when the IV was 

started. Responding to questions from the court, she 

indicated that nothing unusual had been done in Bartel's 

case. While betadine is usually used for prepping where 

alcohol testing is anticipated, Westphal-Marcus could not 

state with certainty that isopropyl alcohol was not used on 

this occasion. However, she stated that the blood spill 

which occurs before the syringe is inserted and blood is 

drawn would remove any taint caused by use of an isopropyl 

alcohol prepping solution. She noted that in Bartel's case a 

large catheter was used and a lot of blood was spilled. She 

concluded that good medical practice was used in drawing 

Bartel's blood and that the test results were reliable. 

Leilani Heuer is the lab technician who tested Bartel's 

blood. She recognized and identified Exhibit X as an 

accurate copy of the lab report she had prepared from the 

original test printout and signed the night of Bartel's 

accident. Heuer described for the court the routine testing 

procedure employed. she stated that the testing machine is 

calibrated before the first test of every night as a matter 

of routine practice. She produced at trial the record of 

calibration for the day of Bartel's blood test. She stated 

that quality control testing is done every day, but records 

of that testing are kept for only one year. Heuer testified 

that isopropyl alcohol would interfere with test results only 

if the patient had ingested it, and that in her experience 

negative test results had occurred even though isopropyl 

alcohol had been used to prepare the patient's skin for the 

blood drawing. Heuer stated that original machine printouts 
for specific tests are not kept, but that if the machine 

printout had indicated any error, she would have repeated the 

test until receiving error-free results. 

Chief Lab Technician Opal Spradlin's deposition was 

stipulated into evidence in lieu of testimony. She stated 

that the drawing of blood for alcohol testing is usually done 

without use of isopropyl alcohol as a cleansing agent. She 

noted that all hospital personnel who could have drawn 

Bartel's blood were professionally competent. Spradlin 

concluded that test procedures accorded with good medical 

practice to assure reliable medical results. 

James D. Hutchinson, a clinical toxicologist experienced 

in blood-alcohol testing, listened to Heuer's testimony and 

testified the hospital's testing methods are accurate. Dr. 

Kenneth H. Mueller, a forensic pathologist, testified that 

use of isopropyl alcohol would affect test results only if 

something distinctly abnormal or incompetent was done in 

drawing the blood. If normal prepping procedure was followed 

using isopropyl alcohol, the isopropyl would result in no 

measurable difference. He testified that a test on blood 

serum as opposed to whole blood would yield a maximum 

difference of only 2-3 percent. Mueller stated that if there 

had been any significant possibility of error in Bartel's 

blood test, it would have been called to someone's attention. 

In McAlpine v. Midland Electric Company (Mont. 1981), 

634 P.2d 1166, 38 St.Rep. 1577, the appellant raised several 

arguments regarding foundation for admission of blood-alcohol 

test results which are similar to those raised by Bartel. 

There, appellant argued that the proponent of the evidence 

had failed to show that post-mortem blood clotting did not 

result in a higher blood-alcohol reading; failed to show that 

the procuring and testing of the samples followed the 

procedures set out in the Administrative Rules of Montana; 
failed to show the blood tested came from the victimsf 

bodies; and failed to produce the gas chromatograph records 

which recorded the test results. 634 P.2d at 1170, 38 

St.Rep. at 1582. 

In McAlpine, this Court held that procedures required by 

administrative rule where results are to be used in a 

criminal prosecution are not required for admissibility of 

test results in a civil trial. In so holding, we quoted from 

Bach v. Penn Central Transportation Company (6th Cir. 1974) , 

502 F.2d 1117, which stated that while test procedures for 

civil trial use need not comply with criminal case statutory 

procedures, l1 'they must accord with good practice in the 

field to assure reliable results.11' McAlpine, 634 P.2d at 

1171, 38 St.Rep. at 1583, quoting Bach, 502 F.2d at 1121. We 

concluded that testimony in that case "established that the 

procedures employed followed good practice in the field. " 

634 P.2d at 1171, 38 St.Rep. at 1583-84. We adhere to that 

test today. 

Rule 406(b), M.R.Evid. provides that "[elvidence of 

habit or of routine practice, whether corroborated or not, 

and regardless of the presence of eyewitnesses, is relevant 

to prove that conduct on a particular occasion was in 

conformity with the habit or routine practice." l1 Routine 

practice" is defined as "a regular course of conduct of a 

group of persons or an organization. " Rule 406 (a) , M.R.Evid. 

Hospital personnel and medical experts testified at 

length of the routine medical practices employed at the 

hospital in drawing and testing blood for alcohol content. 

These witnesses also testified at length as to whether those 

practices accord with good medical practice. With the single 

exception of Bartel1s expert witness, all witnesses 

testifying on this point agreed that the procedures employed 

were in accordance with good practice and yielded reliable 
and accurate results. During the extensive foundation 

testimony heard prior to admission of Exhibit I, the 

experienced trial judge questioned the witnesses in detail on 

various points. In response to a question from the court, 

Westphal-Marcus indicated she believed that the blood drawing 

procedure used in Bartel's case did not deviate from routine 

hospital procedure. Further, Heuer stated that she performed 

the Bartel blood test using good, reliable procedures. The 

above testimony, together with testimony specifically 

relating to Bartel's blood test, was relevant and provided 

adequate foundation to support admission of Exhibit X. 

We hold that the record contains substantial credible 

evidence to show that the test procedure employed in this 

case accorded with good medical practice to assure reliable 

results. 

Bartel vigorously emphasizes those portions of the 

testimony which he argues support his contention that the 

blood test results were inadmissible. He argues the 

necessary foundation was not established because the State 

failed to establish certain facts which he argues are 

essential to admissibility of the results. We will discuss 

each of these contentions in light of the record. 

1. Bartel argues that the State's failure to identify 

positively the person who drew Bartel's blood precludes 

admissibility of the test results. The testimony of R.N. 

Westfall-Marcus established that she was present for the 

drawing of the blood specimens from Bruce Bartel as was Bill 

Kirk, R.N., Jackie Clausen, Night Supervisor, and the medical 

doctor. While she was present at the time of the blood 

drawing, she could not recall whether she or Nurse Kirk had 

drawn the blood sample. She did testify at length regarding 

the procedure customarily followed in the drawing of blood. 

Her testimony and that of other witnesses established that 
the two registered nurses were both qualified to draw blood 

and were both familiar with routine hospital practices. 

Nurse west fall-Marcus completed a portion of the emergency 

room records with regard to the treatment of Mr. Bartel, 

particularly the cross-matching of blood and the ordering of 

the blood test. The routine procedure used by Nurse 

Westfall-Marcus and other nurses in the hospital was 

established without contradiction. There is nothing in the 

written records to indicate any deviation from these procedures. Nurse Westfall-Marcus testified there was no 

deviation from routine procedures. Mere inability to recall 

which of two registered nurses completed this particular 

blood test after a lapse of two years is not a sufficient 

basis to challenge the admissibility of the blood test 

itself. While it would have been preferable that the name of 

the nurse withdrawing the blood be shown on the emergency 

room records, Nurse Westfall-Marcus indicated they were so 

busy taking care of the severely-injured patient, Bartel, 

that this had not been placed on the records. The testimony 

established the very large number of blood tests conducted by 

hospital personnel and by Nurse Westfall-Marcus in the course 

of emergency room operation. Under the circumstances of this 

case, the failure to establish which of two registered nurses 

withdrew the blood does not preclude admissibility of the 

test results. 

2. Bartel contends that the State failed to establish 

the time when the blood was drawn. He argues this is 

critical because it must be shown that administration of 

mannitol did not interfere with test results, and also because time of blood drawing is critical to the accuracy of 

calculations made by experts to determine the degree of 

intoxication at the time of the accident. The time of the 

blood drawing is certainly a significant fact. Nurse 
Westfall-Marcus testified that the records did not disclose 

specifically the time of the blood drawing, but only established that the I.V. was commenced at 3:30 and that mannitol 

was given to Mr. Bartel at 3:35. She testified that the 

routine practice, which she followed and which was followed 

by other nurses in the hospital, would have required the 

withdrawal of the blood promptly after the commencement of 

the I.V. and prior to the giving of mannitol. The testimony 

of Leilani Heuer, the lab technician who conducted the blood 

test, established that she completed her test at 4:30 and 

that it would have taken her not less than one-half hour to 

complete the test. While that evidence does not indicate a 

specific time, it does confirm the probability that the blood 

was withdrawn between 3:30 and 4:00 a.m. The findings on the 

part of the District Court indicate that it concluded that 

the blood was drawn at close to 3:30 a.m., when the I.V. was 

begun. There is certainly substantial evidence to support 

that conclusion. There is in fact no evidence to the 

contrary, but only the speculation raised by Mr. Bartel. We 

conclude that the argument of Mr. Bartel that there was 

mannitol interference must also fail. 

3. Bartel argues that the State's failure to 

demonstrate that a non-alcoholic solution was used for skin 

preparation is fatal to the test result's admissibility. 

Nurse Westfall-Marcus testified that the routine practice is 

to use Betadine, a non-alcoholic solution, when alcohol 

testing is anticipated. However, she could not specifically 

remember the nature of the solution used on Mr. Bartel. She 

did explain in detail the nature of the I.V. which was 

started, pointing out that after making a veni-puncture, the 

needle is withdrawn from the catheter with the tourniquet 

still on the arm so there is a significant spilling of blood 

on the floor before the syringe is inserted, at which time 
the 10 cc. Is of blood are taken out for testing purposes. 

She concluded that even if alcohol had been used to swab the 

arm prior to the commencement of the I.V., so much blood was 

spilled that she did not believe there could have been any 

contamination. Dr. Mueller, forensic pathologist, testified 

that he had done studies on the effect of the use of 

isopropyl alcohol swabs on the measurement of ethel alcohol. 

Dr. Mueller testified he had found the only way it would 

affect the ethel alcohol result was if the needle was 

withdrawn through the sponge with the suction still on or, in 

other words, the doing of something distinctly abnormal or 

incompetent in withdrawing the blood. He testified that in 

the ordinary way of preparing an arm for example with 

alcohol, "isopropyl alcohol simply did not give measureable 

amounts of alcohol." In addition, he testified that the drug 

mannitol is not an interfering substance with the method of 

alcohol testing used in the present case. We, therefore, 

conclude that a failure to demonstrate that a non-alcoholic 

solution was used is not fatal to the admissibility of the 

blood test. 

4. Rartel argues that the State failed to show that 

Bartel's abnormal body chemistries did not interfere with 

test results. However, the record contains nothing, 

indicating that body chemistries actually affected test 

results. 

5. Bartel contends that the test results are 

inadmissible because the State failed to produce the original 

test machine printout and failed to produce quality control 

records. Failure to produce the original test printout does 

not preclude admissibility of test results. See McAlpine, 

634 P.2d at 7171-72, 38 St.Rep. at 1584. Heuer testified 

that Exhibit X was the lab report she prepared by recording 

test results. Further, she stated she would have repeated 
the test if necessary to get an error-free result. Heuer and 

Spradlin testified that the hospital routinely followed 

quality control procedures, preventive maintenance procedures 

and daily calibration procedures. We find no merit in these 

contentions. 

6. Finally, Bartel argues that the test results were 

inadmissible because the State failed to show that testing 

serum rather than whole blood did not affect test results and 

failed to show that more than one blood sample was tested. 

On the contrary, Dr. Muel ler testified that testing of serum 

rather than whole blood was not significant because it could 

account for error of no more than 2-3 percent in test 

results. Further, he stated that multiple test samples were 

unnecessary for accurate results. We reject these 

contentions. 

Despite Bartel's vigorous argument as to the 

significance of the alleged omissions in foundation 

testimony, Bartel has failed to establish any actual 

inadequacy in the blood test procedure which affects 

admissibility of the blood test results. In McAlpine, we 

found it significant that the appellant had presented no 

evidence to support his contention that post-mortem blood 

clotting seriously affected test results. We stated that at 

most, the appellant had laid a basis for a suggestion that 

the condition of the victims' blood had changed between the 

time of death and the time of drawing the blood. We 

concluded that " [sluch a suggestion goes to weight, not 

admissibility." 634 P.2d at 1171, 38 St.Rep. at 1583. 

In a similar manner, Bartel has at most laid the basis 

for a variety of suggestions that Bartel's blood test results 

were in some manner unreliable. Bartel has cited numerous 

cases from foreign jurisdictions which he argues establish 

the inadmissibility of Exhibit X. These cases generally 
follow the rule established in Lessenhop v. Norton (Iowa 

1967), 153 N.W.2d 107, which requires that before blood test 

results may be admitted in evidence, each of 9 specific 

factual requirements must be satisfied. These requirements 

include a showing of the time at which the blood was drawn 

and the identity of the person who drew the blood. 153 

We do not follow the rule which requires that each of a 

list of facts be established as foundation for admissibility 

of blood-alcohol test results. Rather, we follow the 

McAlpine rule which requires that procedures accord with good 

practice in the field to assure reliability. Whether 

procedures accord with good practice in the field is a 

question to be decided based upon the facts and circumstances 

of a particular case and the expert testimony received. 

Having concluded that the record supports a finding that good 

medical practice was followed in this case, the alleged 

omissions in foundation raised by Bartel go to the weight of 

the testimony rather than its admissibility. 

We hold that the District Court did not err in admitting 

into evidence the results of Bartel's blood-alcohol test. 

Are the District Court's findings of fact number 6 

through 8 supported by substantial credible evidence? 

Bartel's contention that findings of fact number 7 and 8 

are unsupported by substantial credible evidence depends upon 

the inadmissibility of blood test results and upon Bartel's 

characterization of other evidence regarding his intoxication 

and impairment. We have concluded that the evidence of blood 

test results was properly admitted. We would also conclude 

there is additional evidence which supports these findings by 

the District Court. 
Gerald Cooper, one of Bartel ' s drinking companions, 

could not remember how many drinks Bartel had at any of the 

bars they visited. 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 he 

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 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 (Mont., Dec. 13, 

1984), No. 83-502, slip op. at 4. 

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 .lo3 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 

"[alt the time of the accident, Bartel's blood stream was 

carrying between .lo3 and .213 percentage alcohol, which 

seriously impaired his sensory and mental functions. . . ." 

Bartel also contends that finding of fact number 6, that 

Bartel was "thoroughly familiar with the intersection," is 

not supported by substantial credible evidence. We disagree. 

The record indicates that Bartel had driven past this 

intersection daily for many months prior to the accident. 

Bartel denied at trial that he had ever driven through this 

intersection or that he had a friend in St. Ignatius. This 

statement was impeached at trial through Bartel's deposition 

in which he admitted having visited a friend in St. Ignatius 

and having driven through the intersection. The trial court 

specifically found that Bartel had previously been in St. 

Ignatius on several occasions and that Bartel had done 

extensive traveling in the area during the 6 years he lived 

in Ronan. 

We hold there is substantial credible evidence to 

support the District Court's finding of fact number 6, as 

well as findings number 7 and 8. 

Finally, we turn to an issue which was not raised by 

appellants but which was discussed in oral argument. The 

issue was whether the district court erroneously concluded 

that Bartel's negligence was the sole proximate cause of the 

accident. 

The court specifically found that under the 1.ight and 

weather conditions at the time of the accident an ordinarily 

observant driver could observe: 

"A. From a distance of not less than 450 feet 

south of the north end of the traffic island the 

roadway itself could be seen to curve to the right, 
or east. B. The end of the island and its hook 

were visible from an approaching distance of not 

less than 350 feet, the point of the designated 

bypass to Highway 93. C. From a point 

approximately 200 feet to a point approximately 50 

feet from the north end of the island the center 

line yellow stripe was clearly discernible, as were 

the white border stripes and the curbing of the 

island. D. From a distance of at least 150 feet 

south of the north end of the island an 

unobstructed passage to Highway 93 was clearly 

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 Richard G. Schmauch 

testified as follows: 

"Q Officer, based on your experience and your 

training, your investigation of this particular 

accident, your observations do you have an opinion 

as to the cause of this accident? 

"A Yes, sir, I do. 

"Q And what is that opinion? 

"A Just carelessness on the part of the operator. 

"Q And why do you say that? 

"A Because I know that if a person was paying 

attention, obeying the laws and the signs in the 

area, that he would not have contacted that 

divider. " 

As previously set forth the district court concluded 

that if Bartel had been driving in a reasonably careful and 

prudent manner and not under the influence of alcohol, he 

could have easily avoided the collision with the traffic 

island. He also concluded that Bartel was not in any way 

trapped by highway design, signin.g or maintenance. The 

findings and conclusions of the District Court regarding 

proximate cause are not challenged by Bartel on appeal. 

We hold there is substantial credible evidence to 

support the District Court's findings and conclusions that 

Bartel's negligence was the sole proximate cause of the 

accident. See McAlpine v. Dahl (1978), 179 Mont. 23, 585 

P.2d 1307; Jimison v. Unisted States (D. Mont. 1967), 267 
F.Supp. 674, affirmed Jimison v. United States (9th Cir. 

We affirm the judgment of the District Court. 

We concur: --, 

The Honorable John M-. McCarvel, 

~is&ict Judge, sitting in 

place of Mr. Justice John C. 

Harrison 
Mr. Justice John C. Sheehy, dissenting: 

I dissent from the unqualified acceptance by this Court 

and by the District Court of the blood test results in light 

of the record here. 

In my original dissent to the original opinion which has 

now been withdrawn, I contended that no foundation had been 

laid for the supposedly scientific tests of the blood alcohol 

concentrations here. I continue here in that dissent to the 

new opinion because at a minimum, for scientific test results 

a foundation should include the following factors: (1) that 

the persons engaged in the test were qualified; (2) that the 

machine used and its components were in proper condition; and 

(3) that the test was properly conducted. 

In this case, factors (1) and !3) have not been shown. 

It is incredible that the hospital chart does not show the 

precise time in which the blood was withdrawn from Bartel, 

nor the person who withdrew the blood. Thus we have no 

direct evidence as to how part of the test was conducted, a 

most important part, the drawing of the blood sample itself. 

A record of the time the blood was withdrawn from Bartel was 

especially important, because if the blood was taken after 

mannitol had been administered, at 3 : 35 a.m. , then the test 

was subject to considerable doubt. Mannitol is a crystaline 

alcohol having a chemical makeup of C6HI4O6. If Bartel' s 

blood was withdrawn before the mannitol was administered, but 

isopropyl was used to swab the location where the blood was 

withdrawn, there is still a problem (not admitted by the 

State experts) because isopropyl has a chemical makeup of 

C3H80. The chemical symbol for ethyl alcohol, the 

intoxicating agent in liquor is C2H60. 
This Court, like many another, has fallen prey to the 

pseudo-science of alcohol concentrations in the blood, urine 

or breath to determine drunkenness. With the advent of 

statutes using alcohol concentrations to define drunk 

driving, a holy mystique of a sort has grown up around the 

levels defined in those statutes. Courts and lawyers 

untutored in chemistry and in spite of their own experience 

accept these levels without question. They adopt the 

statutes as establishing a sharp cleavage between drunkenness 

and nondrunkenness. The assumption is embraced that one 

having an alcohol concentration of less than 0.10 is not 

drunk, but one having an alcohol concentration greater than 

0.10 is drunk, even though that assumption belies their own 

personal observation. It is our common observation that some 

people carry their booze better than others. 

What is forgotten is that 0.10 alcohol concentration is 

an arbitrary figure, so arbitrary that proof of such an 

alcohol concentration without more, is in itself a crime in 

operating a motor vehicle. Section 61.-8-406, MCA. Until the 

legislative amendment in 1971, the former arbitrary figure 

was 0.15 alcohol concentration which would be half again as 

much alcohol in the blood. Section 32-2142, R.C.M. 1-947, 

amended Ch. 32, Laws of Montana (1971) . 

Now courts give greater probity to blood test results 

than to witnesses' observations of drunken persons, when the 

reverse should be true. To paraphrase the remark about 

pornography, we cannot define drunkenness, but we know it 

when we see it. In this case, there was a wealth of evidence 

about the amount of liquor consumed, the appearance, the 

eyes, the breath, the gait, the slurred speech, the lack of 

coordination that, had the District Court relied principally 
on these and not so heavily on the blood test results, I 

would then support its judgment. But because the blood test 

results weighed so heavily in its opinion in determining the 

intoxication of Ba-rtel, I am forced to dissent. 

I have never worshipped at the shrine of blood test 

results because they are for the most part a false idol, with 

feet of clay and the heart of a gas chromatograph. 

It is evident that the majority and the District Court 

have not thoroughly thought out the implications of blood 

test results, because each blithely accepts that Bartel had 

"a blood alcohol level of .I71 percent" or that at the time 

of the accident, Bartel's blood alcohol was "between .I03 and 

.213 percent." Percent of what? Blood alcohol levels cannot 

he defined in terms of percentage unless they are expressed 

in terms of percentage of weight or percentage of volume. 

Neither volume nor weight is met under the evidence in this 

case. 

The statute defining "alcohol concentration," for the 

purpose of this case, requires grams of alcohol per 100 

milliliters of blood. Section 61-8-407, MCA. Grams are a 

measure of weight. Milliliters are a measure of volume. One 

cannot be expressed in terms of the other by percentage 

unless the substances being compared weigh exactly the same. 

Alcohol is lighter than water, because it floats on 

water. In fact, absolute alcohol has a specific gravity of 

0.789, compared to water which has a specific gravity of 1. 

Blood is thicker than water, both socially and physically. I 

do not know the specific gravity of human blood but I suspect 

that it is greater than the specific gravity of water because 

my personal observation is that blood sinks in water. A 

cubic centimeter of alcohol, therefore, would weigh much less 
than a cubic centimeter of human blood. If we had a 100 

milliliter mixture of water and alcohol of which the alcohol 

consisted of 1 percent by volume, the alcohol in the mixture 

would weigh 0.789 grams. If the alcohol in the same mixture 

constituted 1 percent by weight, the mixture would contain 

nearly 1.267 cubic centimeters of alcohol. Chemical-ly that 

is a vast difference. 

It is for that reason that the statute defining alcohol 

concentration now avoids references to percent, and relates 

instead to weight of alcohol per volume of blood. There is 

nothing, however, in the record before us to tell us what the 

so-called experts were talking about when they were referring 

to "percent" in determining blood alcohol levels. 

Lost in the murnbo-jumbo of the pseudo-science of blood 

alcohol tests is the fact that the tests involve 

infinitesimally small amounts. This is because statutory 

blood alcohol terms are couched in terms of metric measures, 

perhaps purposely so. Most Americans do not comprehend the 

relationship between metric measures and their U.S. 

equivalents. It may have helped if section 61-8-407, MCA, 

had defined "alcohol concentration" as the number of 0.035 

ounces of alcohol per 6.1 cubic inches of blood. (A gram is 

0.035 ounce.) We might be able to grasp then that if 

Bartel's blood alcohol level was 0.171 (assuming that 0.171 

refers to grams) that his actual alcohol level per ounce was 

0.005985 (0.171 x 0.035). Put another way, if each ounce of 

his blood was broken into a thousand parts, at a blood 

alcohol level of 0.171, six parts of that blood would 

constitute alcohol. 

The minuteness of those figures is lost in the metric 

system in the pseudo-science of blood alcohol levels. Minute 
-amounts of alcohol in the blood can cause intoxication. 

Minute amounts of other alcohol-related substances, if 

present, can seriously distort blood test results. 

I fear the weight given to blood test results, 

especially in civil cases where other and more convincing 

evidence of drunkenness is available. I fear the testimony 

of experts who testify that the margin for error in these 

tests is "2 to 3 percent." Two percent of 0.005985 is 

0.0001197. I truly doubt that any machines available here 

are capable of measuring down to the ten millionth part. If 

we accept these statements without question, we have been 

overtaken by a form of doublethink in the guise of metric 

measures. 

Please do not answer that the hospital and doctors used 

the blood test results for their medical purposes, and 

therefore the results must be accurate. The medical people 

here did not need blood tests to determine that this man had 

been drinking. The nurse wrote "intoxicated" upon the chart 

the first moment she saw him. That observation was not based 

on blood tests. 

For these reasons, I would set a rigid foundational 

requirement for the admission of blood test evidence. 

Routine would not be enough. No perfect routine and no 

perfect machine can escape the impact of the imperfect human 

being. The majority in this case have elevated routine into 

infallability. 

1 would reverse this case on the grounds that the 

District Court found evidence of intoxication based on the 

blood tests for which no proper foundation was laid and for 

the further reason that the blood test results do not relate 

to the statutory scheme of weight per volume of blood. 
Mr. Justice William E. Hunt, Sr., dissenting: 

/' 

I concur in the dissent of Mr. Justice Sheehy. 

Mr. Justice Frank 3. Pdorrison, Jr. , dissenting : 

I concur in the dissent of Mr. Justice Sheehy.