No. 83-54 INTHE SUPREME COURT OF THE STATE OF MONTANA 1985

DONNA L. B-gRTEL, Guardian and Conservator of BRUCE W. BARTEL, an incapacitatedperson, Plaintiff and Appellant,

-vsSTATE OF MONTANA, Defendant and Respondent.

APPEAL FROM: DistrictCourt of the FirstJudicialDistrict, In and fortheCounty 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 ServicesBureau, Helena, Montana

Submitted: 

### May 7, 1985 Decided: August 27, 1985

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ClerkMr. JusticeFred J. Weber delivered theopinion of theCourt. 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

### DistrictCourt enteredjudgment in favor of thedefendant Stateof Montana. Plaintiff appealed. By opinion dated January 2, 1985, this Court affirmed the judgment of the District Court. Two of thejustices who participated inthe 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 issuesare: 1. Did the 

### District Court 

### err in admitting into evidence without adequate foundation the results of a blood-alcohol test? 2. Are the

### DistrictCourt's findings of fact 6 through 8 supported by substantial credibleevidence? Bruce Bartel was severely injured in a motorcycle accident which occurred about 1:00 a.m. on May 28, 1980 ata highway junction on the north end of St. Ignatius, Montana. On thedateof the accident, Bartel was 24 years old, weighed 318 pounds, was 

### 6 feet, 4 inches tall and was not physically

ormentally impaired. Rartel was a truck driver living 

### in Ronan, Montana, approximately 14

### milesnorth of St. Ignatius. On thedateof the accident, Bartel had lived in Ronan forabout 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 tothe date of the accident, Bartel had driven by St. Ignatius about once a day while driving a logging truckbetween Ronan and Thompson Falls. Bartel had also visited St. Ignatiusatleasttwice during thisperiod 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 atebreakfast ata Ronan restaurant and later ate lunch ata cafe in Pablo. Between 3:00 and 4:00 p.m., Bartel and a friend stopped atWillard's Bar in Ronan where Barteldrank 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., Barteland two friendspurchased 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 atleasttwo drinks consistingof scotchwhiskey and water

# . Shortly after this meeting, Bartel traded his pickup truck for Mitchell's motorcycle. For the 

### rest of the evening, BarteldroveMitchell's motorcycle, 

### a 750 ccYamaha, 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 ateachbar and whether and towhat degree he became intoxicated. Bartel argues that the testimony establishes he had no more than 9drinks of scotch and water between 9:00 p.m. and 1:00 a.m. The State contends the evidence establishes that Bartel had about 15drinksbetween 9:00 p.m. and 1:00 a.m. and 18 drinks total for the day. The group eventuallyheaded south toSt. 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 ina St. Ignatius bar, Cooper and Bartel decided to return to Ronan because Bartel intended todeparton histruckingtripearly thenext morning. Bartel and Cooper left St. Ignatius o the motorcycles, with Cooper inthe lead and Bartel some distancebehind. The two drove north on themain 

### street of St. Ignatius, which 

### is known as "Old Highway 93." Old Highway 93proceeds north and intersectsatan acute angle with 

### New Highway 93 on thenorth edge of St. Ignatius. New Highway 93 approaches St. Ignatius from the 

### west and than skirts St. Ignatius on the northwest ina sweeping curve tothenorth. Bartel's accidentoccurred atthe 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. Trafficthen stops ata stop sign immediately before turning right or left to travel north toward Ronan 

### or south toward Missoula. Rather than following this channel tothe left and heeding the stop signbefore turning ontoNew Highway 93, Barteldrove straightnorth along theeastsideof the second traffic island, apparently attempting to proceed straight ontoNew Highway 93. The northern tipof the second trafficisland protrudes tothe east intowhat would otherwise be a straight line of pavement from Old Highway 93 onto New Highway 93. The protrusion atthe northern tip of the second traffic island apparently was designed tochannel northbound Old Highway 93 traffic into a right turn ontoAirport Road, which enters at

### that point from the east, and to prevent traffic from proceeding straight directly ontoNew 

### Highway 93. As

### Bartel drove through theintersection, he struckthenorthern tipof thetraffic islandwiththemotorcycle, lostcontrol and came to 

### rest about 50 to 60 feet north in the barrow piton the right sideof thehighway. Bartel was taken immediately to the St. Ignatius hospital, where personnel quickly determined that the seriousness 

### of his injuries required treatment inMissoula. 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 toSt. Patrick's Hospital inMissoula and arrived atthe emergency

room there atapproximately 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 atthe 

### 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, sittingwithout a jury. Trial was on theissueof liabilityonly. 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 factincluded the following:"6. As a result of his casual traveling in and generalknowledge of thearea, of hisregular 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 inquestion and how trafficmoved from St. Ignatius through that intersection to Highway 

### 93en routenorth toRonan. "7. On May 27, 1980, he put in an ordinary day's work until fourp.m., atwhich 

### timeand before five p.m. he had two beers. Between eight and nine p.m., aftereatinghissupper, he drank anothercan 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 quiteprobably twelve to fifteen drinks containing undetermined amounts of scotchwhiskey. 

### "8. At the 

### timeof the accident hisblood 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 challengesthesethree findings of fact. In addition, the districtcourt found that thenight 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, ata speed of 25 to30 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 hismotorcycle and landed with 

### it ina ditch on the right side of theroad. The court found that under the light and weather conditions existingatthetimeof theaccident, an ordinarilyobservant motor vehicle operator traveling inBartel'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 notunder the influence of alcohol, he could have easily avoided thecollisionwiththetrafficisland and thatBartelwas not in any way "trapped" by highway design, signing or maintenance. Although the court found that the design, construction, signing and maintenance of the intersectionwas "demonstrably deficient in numerous respects and did not comport with national standards oreven the State's own standards," these deficiencies 

### were not found tobe a cause of the accident. The court noted thatno other accidents atthis 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 theaccident. 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 arerequiredfor admissibi-lity of blood 

### test results in civil cases than in criminal cases, McAlpine nonetheless requires that 

### test procedures accord with "good practice inthe field" toassure 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 resultsthathewas intoxicated orimpaired inhisabilityto drive. Because the State's defense depended upon showing thatBartelwas intoxicated, Bartel argues thattheerroneous admission of Exhibit 

### XIthe lab report containing theblood 

### test results, was extremely prejudicial and constitutes reversible error. A 

### review of the detailed foundation testimony 

### is appropriatehere. Three hospital employees testified at trial regarding Bartel1s blood 

### test and routine blood 

### test procedure. Barbara Westphal-Marcus, an R.N. who participated inBartel's emergency room treatment, charted the treatment Bartel received. The chart showed that an IVwas started at 3:30

a.m. and that the drug mannitol was administered at 3:35 a.m., although thechartdidnot show specificallywhen 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-alcoholic solution; theneedle and catheterareinserted; theneedle 

### is then removed from the catheter; before the blood-drawing syringe 

### is inserted intothecatheter, 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 tothe labtechnician. Westphal-Marcus testified she was present when Bartel's blood was drawn. She statedthatbased on routinepractice, 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 statewith 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 alcoholprepping solution. She noted thatinBartel's casea large catheterwas used and a lotof blood was spilled. She concluded that good medical practice was used in drawing Bartel's blood and thatthe

### test results

### werereliable. Leilani Heuer 

### is the labtechnicianwho 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 forthe court theroutine testing procedure employed. she stated that the testingmachine 

### 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 arekept foronly one year. Heuer testified thatisopropyl alcoholwould interferewithtestresultsonly if the patient had ingested 

### it, and that 

### in her experience negative 

### test results had occurred even though isopropyl alcohol had been used toprepare the patient's skin for the blood drawing. Heuer statedthat original machine printoutsfor specific 

### tests are not kept, but that if the machine printout had indicated any error, shewould have repeated the 

### test untilreceivingerror-free results. Chief Lab Technician Opal Spradlin's deposition was stipulated into evidence in lieu of testimony. She stated thatthedrawing of blood foralcohol testing

### isusuallydone without use of isopropyl alcohol asa 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 practicetoassurereliablemedical results. James D. Hutchinson, a clinical toxicologistexperienced 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 theblood. Ifnormal preppingprocedure 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 differenceof only 

### 2-3 percent. Mueller statedthatifthere had been any significant possibility of error in Bartel's blood 

### test, itwould have been calledtosomeone'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 foradmission 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; failedtoshow 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. InMcAlpine, this Courtheld thatprocedures 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 soholding,we quoted from Bach v. Penn Central Transportation Company (6thCir. 1974)

### , 502 F.2d 1117, which stated that while test procedures for civil trial use need not complywith 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, 502F.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 ofpersons oran 

### 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 accordwith good medicalpractice. 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 thewitnesses indetail on 

### various points. In response to a 

### question from the court, Westphal-Marcus indicated shebelieved that theblood drawing procedure used in Bartel's case did not deviate from routine hospitalprocedure. Further,Heuer stated that sheperformed 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 admissionofExhibitX. 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 lightof 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 fromBruce Bartel aswas Bill Kirk,R.N., JackieClausen,Night Supervisor,and the medical doctor. While she was present at the time of the blood drawing, she could not recall whether she orNurse 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 itwould havebeen 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 thevery largenumber ofblood tests conducted by hospital personnel and by Nurse Westfall-Marcus in the course of emergency roomoperation. Under the circumstancesof this case,the failure to establishwhich 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. NurseWestfall-Marcus testified that the records did not disclose specifically the 

### time of the blood drawing, but only established thatthe I.V. was commenced at3:30 and thatmannitol

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 tothe giving of mannitol. The testimony of Leilani Heuer, the labtechnicianwho conducted theblood 

### 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 specifictime, 

### it does confirm theprobability thattheblood

was withdrawn between 3:30 and 4:00 a.m. The findingson the part of the 

### District Court indicate that 

### it concluded that theblood was drawn atclose to3:30 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 interferencemust 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 solutionused on Mr. Bartel. She did explain in detail the nature of the I.V. which was started, pointing out that aftermaking a veni-puncture, the needle 

### is withdrawn from the catheter with the tourniquet 

### still on the arm sothere 

### is a significant spillingof blood

on the floor before the syringe 

### is inserted, atwhich 

### timethe 10 cc. Isof blood are taken out for testing purposes. She concluded that even if alcohol had been used toswab the

arm prior tothe commencement of the I.V., somuch 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 themeasurement 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 spongewith the suction 

### stillon or, 

### in other words, the doing of something distinctly abnormal or incompetent inwithdrawing 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." Inaddition, he testified thatthedrug mannitol 

### is not an interfering substance with the method of alcohol testing used 

### in the present case. We, therefore, conclude that a failure todemonstrate that a non-alcoholic solution was used 

### is not fatal tothe 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 inadmissiblebecause the State failedtoproduce the original 

### test machine printout and failed toproduce quality control records. Failure toproduce 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 repeatedthe

### test ifnecessary togetan error-free result. Heuer and Spradlin testified that the hospital routinely followed qualitycontrol procedures, preventive maintenance procedures and daily calibration procedures. We find no 

### meritinthese contentions. 

### 6. Finally, Bartel argues that the 

### test results 

### were inadmissible because the State failed to show that testing

serum ratherthanwhole blood did not affect

### test results and failed to show that more than one blood sample was tested. On the contrary, Dr. Muellertestified thattesting of serum rather than whole blood was not significantbecause 

### it could account for error of no more than 2-3 percent in 

### test results. Further, he statedthatmultiple 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 at1171, 38 St.Rep. at1583. In a similar manner, Bartel has atmost laid thebasis foravariety of suggestions thatBartel'sblood 

### 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 rulewhich requires that each of a 

### list of facts be established as foundation for admissibility of blood-alcohol test results. Rather, we follow the McAlpine rulewhich requires thatprocedures accordwith good practice in the field to assure reliability. Whether procedures accord with good practice in the field is a 

### question tobe 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 theweight of the testimony rather than its admissibility. We hold that the District Courtdid 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 findingsof fact number 7and 8



### are unsupported by substantial credibleevidence dependsupon the inadmissibility of blood test results and upon Bartel's characterization ofother evidence regardinghis intoxication and impairment. We have concluded that the evidence ofblood test results was properly admitted. We would also conclude there is additional evidence which supportsthese findingsby the DistrictCourt.Gerald Cooper, one of Bartel

### 's drinking companions, could not remember how many drinks Bartel had atany of the bars they visited. George Mitchell told investigating officer Schmauch that they had been drinking, barhopping. Mitchell testified that Bartel had 9 ormore drinks. Randy Merryman, a Lake County Deputy Sheriffwho was present atthe

scene immediately aftertheaccident, statedthattherewas a very definite strong odor of alcohol on Bartel's breath. Karla Court, the registered nurse at St. Ignatius Hospital who filledout the initialreport on Bartel, while she stated she did not know for sure that Bartel was intoxicated, said the

### smellof alcoholon him was "pretty strong." Dr. Cooney, treating physician at St. Patrick's Hospital in Missoula, statedhe has experience inrecognizing intoxication, thathe 

### smell of alcohol 

### isvery characteristic of intoxication, and that the alcohol 

### smell on Bartel was the basis for the notation on hisreportthatBartelwas intoxicated. Although there was extensive testimony regarding the number of drinksBartel had and how drunk he appeared tobe, 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 containingundetermined amounts of scotchwhiskey." 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, slipop. 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 levelwas expressed as
a range ofvalues 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 corroboratedby 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. "Startingat 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 amotor vehicle. Functions important indriving are impaired at .15 or less, even though there are no obvious signs of drunkenness apparent in those habituated to alcohol. Dr. Mueller stated thatunless Bartel isvery 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 alsocontends that findingof factnumber 6, that Bartel was "thoroughly familiar with the intersection," 

### is not supported by substantial credibleevidence. Wedisagree. The record indicates that Bartel had driven past this intersection daily for many months prior to the accident. Bartel denied attrial that he had 

### ever driven through this intersection or that he had a friend in St. Ignatius. This statement was impeached attrial through Bartel's deposition inwhich he admitted having visited a friend inSt. Ignatius and having driven through the intersection. The trialcourt 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 inRonan. We hold there 

### is substantial credible evidence to support the District Court's finding of fact number 6, as 

### wellasfindingsnumber 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 soleproximate cause of the accident. The court specifically found that under the 1.ight and weather conditions atthe

### timeof the accident an ordinarily observantdriver could observe: "A. From a distance of not 

### less than 450 feet south of the north end of the traffic island the roadway itself couldbe seen tocurve tothe 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 lineyellow stripewas clearlydiscernible, as

### were the white border stripes and the curbing of the island. D. From a distance of atleast 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 thenorth end of the island." InvestigatingHighway Patrol OfficerRichard G. Schmauch testifiedasfollows: 

### "Q Officer, based on your experience and your training, your investigation of this particular accident, your observations do you have an opinion astothecauseof thisaccident? 

### "A Yes, 

### sir, I do. 

### "Q And what 

### isthatopinion? "A Just carelessness on thepart of the operator. 

### "Q And why doyou saythat? 

### "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 arenot 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 theDistrict Court.

We concur: --,



### TheHonorable JohnM-.McCarvel, ~is&ict Judge, sitting in place ofMr. Justice John C. 

### Harrison

### Mr. Justice JohnC. Sheehy,dissenting:

I dissent from the unqualified acceptanceby this Court and by the District Court of the blood test results in light of the record here. Inmy originaldissent to the original opinion which has

now been withdrawn, I contended that no foundationhad been laid for the supposedly scientific testsof theblood alcohol concentrationshere. I continue here in thatdissent to the

new opinion because at aminimum, for scientific test results

a foundation should include the following factors: (1)that the persons engaged in the testwere qualified; (2) 

### that the machine used and its components were inproper condition;and

(3)that the testwasproperly 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 importantpart, the drawing of the blood sample itself. A 

### record of the time the blood was withdrawn fromBartel 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 considerabledoubt. Mannitol is a crystaline alcohol having a chemical makeup of C6HI4O6. If Bartel's blood waswithdrawnbefore the mannitolwas 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 intoxicatingagent in liquor isC2H60.

### 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 statutesas establishinga 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 amotor 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 ofMontana (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 whenwe see it. In this case,therewas awealth 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 resultsweighed so heavily in its opinion in determining the intoxicationof Ba-rtel,

### Iam forced to dissent. I have never worshipped at the shrine of blood test results because they are for themost part a false idol,with feetof 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 "ablood alcohol level of .I71percent" or that at the time of the accident,Bartel'sblood alcoholwas "between .I03and .213percent." Percentof 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 ameasure ofvolume. 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 thanwater,both socially and physically. I 

### do not know the specificgravity 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 themixture 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-lythat 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 telluswhat the so-called expertswere talking about when theywere referring to "percent"indeterminingblood 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. (Agram 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) thathis actual alcohol levelper ouncewas 0.005985 (0.171x 0.035). Put anotherway, 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 constitutealcohol. The minuteness of those figures is lost in the metric system in thepseudo-science ofblood alcohol levels. Minute

### -amounts of alcohol in the blood can cause intoxication. Minute amounts of other alcohol-related substances, if present, can seriouslydistortblood 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 sawhim. Thatobservationwas notbased

onblood 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 impactof the imperfect human being. Themajority 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 foundationwas laid and for the further reason that theblood test results do not relate to the statutory scheme of weightper volume ofblood.Mr. 

### JusticeWilliam E. 

### Hunt, Sr., dissenting: /' I 

### concur inthedissentof Mr. 

### JusticeSheehy.



### Mr. JusticeFrank 3. 

### Pdorrison, Jr.

## ,dissenting: I 

### concur 

### inthe dissentof Mr. 

### JusticeSheehy.