LEGAL-MEDICAL ASPECTS OF BLOOD TESTS TO DETERMINE INTOXICATION
Authors: Mason Ladd, Robert B. Gibson
Journal: Annals of Internal Medicine (1943)

Article1 April 1943LEGAL-MEDICAL ASPECTS OF BLOOD TESTS TO DETERMINE INTOXICATIONMASON LADD, ROBERT B. GIBSONMASON LADDSearch for more papers by this author, ROBERT B. GIBSONSearch for more papers by this authorAuthor, Article, and Disclosure Informationhttps://doi.org/10.7326/0003-4819-18-4-564 SectionsAboutPDF ToolsAdd to favoritesDownload CitationsTrack CitationsPermissions ShareFacebookTwitterLinkedInRedditEmail ExcerptThe development and use of chemical tests to determine intoxication has been due in a large measure to the activity of the National Safety Council in its effort to control the vast number of traffic accidents which have been caused by drunken driving. Its interest in national safety has resulted in active work to seek out the causes of injury and death arising from motor vehicle accidents with a view of preventing them. In this age in which practically all members of American society operate motor vehicles it is inevitable that many accidents occur both on open highways, which present...1 Burns, Indiana Statutes Annotated (1940) Tit. 47 § 2003; McKinney's Consolidated Laws of New York (1942) § 70 (5); Laws of Maine (1939) Ch. 273; Oregon Laws (1941) Ch. 430. Google Scholar2 In 1939 these writers of the present article wrote a more extensive paper considering this subject in greater detail. See Ladd and Gibson, The Medico-Legal Aspects of the Blood Test to Determine Intoxication, 24 Iowa Law Review 191-267. The present article includes discussion and references showing later developments. Google Scholar3 Jetter WW See note 2 supra. Later reports to the same effect include : The chemical and clinical diagnosis of acute alcoholism, New England Jr. Med., 1939, cci, 1019, and Bavis, D. F.: 145 drunken drivers—a blood and urine alcohol study, Jr. Lab. and Clin. Med., 1940, xxv, 823. CrossrefGoogle Scholar4 Reports on body fluid analyses generally are expressed in clinical reports as milligrams per 100 cubic centimeters or simply mg. per cent. In states where the blood or urine alcohol content defining intoxication is included in the statutes, it would be best to use such terminology in the trials (usually per cent by weight). Milligrams per cubic centimeter (mg. per c.c.) are often used. Breath alcohol is in direct relation to that of the blood and is expressed in terms of blood alcohol concentration as above. Google Scholar5 In New York the specimen must be taken within two hours of the time of arrest. Google Scholar6 It may be advisable to obtain a duplicate specimen of the blood when drawing it and to seal and retain it for use should the defense request a specimen for a check test. Google Scholar7 The Iowa State Highway Patrol and the local police have shown excellent judgment in their estimation of acute alcoholism. In a period from February 1, 1939 to July 1, 1941, 336 tests on blood alcohols were made at the University Hospital. There were 4.4 per cent of these containing less than 50 mg. per cent of alcohol, and the specimens were sent in for the establishment of innocence and usually on the individuals' own initiative. The remaining 95.6 per cent were distributed as follows: 50-99 mg., 1.5 per cent; 100-149 mg., 6.2 per cent; 150-199 mg., 19.3 per cent; 200-249 mg., 29.2 per cent; 250-299 mg., 25.0 per cent; 300-349 mg., 9.2 per cent; 350-399 mg., 3.2 per cent, and 400-449 mg., 1.2 per cent. Google Scholar8 See Ladd and Gibson op. cit. supra note 2, pp. 210-212 for a brief description of the analytical methods for blood and urine alcohol. Also Levine, H., and Bodansky, M.: Determination of alcohol in tissue and body fluids: summary of practical procedures for the pathological laboratory, Am. Jr. Clin. Path., Tech. Suppl., 1939, iii, 159; A simple and accurate method for the determination of alcohol in body fluid, Am. Jr. Clin. Path., 1940, iv, 103; and Johnston, G. W., and Gibson, R. B.: A distilling apparatus and a procedure for the determination of alcohol in blood and urine, Jr. Lab. and Clin. Med., 1940, xxvi, 399. The accuracy of the breath test as carried out has recently been questioned by Haggard, H. W., Greenberg, L. A., Miller, D. P., and Carrol, R. P.: The alcohol of the lung air as an index of alcohol in the blood, Jr. Lab. and Clin. Med., 1941, xxvi, 1527. Google Scholar9 Roughly 1 c.c. of alcohol per kilo (2.2 lbs.) produces a blood alcohol level of about 100 mg. per cent; 2 c.c. nearly 200 mg. per cent, etc. Two c.c. of whiskey are equivalent to one c.c. of alcohol. One bottle (12 oz.) of beer is about equal in alcohol content to one oz. of whiskey. Google Scholar10 Ladd and Gibson, op. cit. supra note 2, pp. 262-267. Google Scholar11 The time is the period between finding the person in question in apparent intoxication (or the time of an accident or other event) and the taking of the specimen. As blood alcohol is reduced through destruction in the body 15 to 20 mg. per hour, such an estimate is feasible if the individual has taken no more liquor during the period. Google Scholar12 Sollman T An excellent review of the metabolism and pharmacology of alcohol may be found in : A manual of pharmacology, 6th Edition, 1942, W. B. Saunders and Co., Philadelphia and London. Google Scholar13 NewmanAbrahamson HM The question of tolerance required further investigation. At present it is taken care of by emphasis on the presentation of definite evidence of intoxication in addition to that of the blood test when the blood alcohol level is between 50 and 150 mg. per cent. Above 150 mg. the individual is considered drunk irrespective of idiosyncrasy or tolerance. A compensation for normal muscle-sense incoördination may be achieved by slowing the movements and using visual sense aid in controlling these. Newman and others have shown that the effects of alcohol are much more pronounced earlier when the blood alcohol content is maintained at a level for some hours. There seems to be a definite amelioration of the symptoms later, : Relation of alcohol concentration to intoxication, Proc. Soc. Exper. Biol. and Med., 1941, xlviii, 509. CrossrefGoogle Scholar14 The Committee to Study Problems of Motor Vehicle Accidents of the A.M.A., Jr. Am. Med. Assoc., 1942, cxix, 653, reiterates its former recommendation that the percentage of alcohol in the blood is a reliable index of the degree of intoxication, especially when considered along with the external symptoms of intoxication: 1. Below 0.05 per cent alcohol in the blood: no influence by alcohol within the meaning of the law; 2. Between 0.05 and 0.15 per cent, a liberal wide zone; alcoholic influence usually is present, but courts of law are advised to consider the behavior of the individual and circumstances leading to the arrest in making their decision; 3. 0.15 per cent: definite evidence of "under the influence," since every individual with this concentration would have lost to a measurable extent some of that clearness of intellect and control of himself that he would normally possess. Google Scholar15 8 Wigmore 3d ed. §§ 2250-2252; Ladd and Gibson, op. cit. supra note 2, pp. 225-232. Google Scholar16 Inbau, Self-Incrimination—What an Accused Person May Be Compelled to Do (1937) 28 J. Crim. L. 261; Ladd and Gibson, op. cit. supra note 2, pp. 232-241. Google Scholar17 Biggs v. State, 201 Ind. 200, 167 N.E. 129 (1929) and extensive note in 64 A.L.R. 1085. Google Scholar18 Day v. State, 63 Ga. 668 (1879); Eiden v. State, 143 Ga. 363, 85 S.E. 97 (1915). Google Scholar19 Note 2, supra. Google Scholar20 Villaflor v. Summers, 41 Phil. Is. 62 (1920). See also: State v. Eccles, 205 N.C. 825, 172 SE 415 (1935) Contra: People v. McCoy, 45 How. Prac. (NY) 216 (1873). But in People v. Sallow, 100 Misc. 447, 450, 165 N. Y. Sup. 915, 921, 36 N. Y. Crim. 27, 37 the court said: "The ruling in the case of People v. McCoy in so far as it held that evidence by a compulsory physical examination of the defendant was not admissible in evidence must be overruled by the authorities cited." Google Scholar21 State v. Height, 117 Ia. 650, 91 N.W. 935 (1902). See criticism Ladd and Gibson, op. cit. supra note 2, pp. 215-225. Google Scholar22 74 N.C. 646, 647 (1876). Google Scholar23 41 Phil. Is. 62, 69 (1920). Google Scholar24 Holt v. United States, 218 U.S. 245, 252 (1910); State v. Aschoa, 49 Nev. 194, 242 Pac. 582 (1926). Google Scholar25 196 U.S. 639 (1904). Google Scholar26 115 Pa. St. R. 369, 9 Atl. 78 (1887). Google Scholar27 Commonwealth v. Miller, 289 Mass. 441, 194 N.E. 463 (1935); Jessner v. State, 202 Wis. 184, 231 N.W. 634 (1930). Google Scholar28 Sprouse v. Commonwealth, 81 Va. 374 (1886); State v. Owens, 167 Wash. 283, 9 Pac. (2d) 90 (1932). Google Scholar29 Holt v. United States, 218 U.S. 245 (1910). Google Scholar30 140 Tex. Cr. R. 593, 146 S.W. (2d) 381 (1940). Google Scholar31 The legality of taking Bertillon measurements and fingerprints is discussed in United States v. Kelly, 55 Fed. (2d) 67, 83 A.L.R. 122 (C.C.A. 2d, 1932) and note. Google Scholar32 19 Tex. L. Rev. 463 (1941); 15 Cincinnati L. Rev. 344 (1941); 26 Wash. L. Rev. 435 (1941). Google Scholar33 State v. Morkrid, 286 N.W. 412 (Iowa 1939); State v. Weltha, 228 Ia. 519, 292 N.W. 148 (1940); State v. Benson, 230 Ia. 1168, 300 N.W. 275 (1941). The last case written by Chief Justice Miller takes a much more enlightened position than the earlier cases. Google Scholar34 Id. Google Scholar35 60 Ohio App. 192, 20 N.E. (2d) 265 (1937). Google Scholar36 State v. Cash, 219 N.C 818, 15 S.E. (2d) 277 (1941); Commonwealth v. Capalbo, 308 Mass. 376, 32 N.E. (2d) 225 (1941). Google Scholar37 Note 2, supra. Google Scholar38 8 Wigmore, op. cit., supra note 15, §§ 2175-2183; Ladd and Gibson, op. cit, supra note 2, pp. 215-218. Google Scholar39 18 N. J. Misc. 633, 16 Atl. (2d) 80 (1940). Google Scholar40 Id. p. 652. Google Scholar41 89 Univ. Pa. L. Rev. 518 (1941). Google Scholar42 1 Bill of Rights Rev. 226 (1941). Google Scholar43 O'Brien v. Albrecht, 206 Mich. 101, 172 N.W. 601 (1919); Joliet Motor Co. v. Industrial Board, 280 Ill. 148, 117 N.E. 423 (1917); Ladd and Gibson, op. cit. supra note 2, pp. 239-241. And see, in this Symposium Series: Ludlam, Plaintiff's Duty to Submit to Surgery to Minimize Defendant's Liability to Damages." (In press.) Google Scholar44 This would be analogous to the treatment of the Workmen's Compensation cases. Note 29, supra. Google Scholar45 50 Ariz. 276, 72 Pac. (2d) 435 (1937). Google Scholar46 Cases collected and discussed, Ladd and Gibson, op. cit. supra note 2, pp. 241-251. Google Scholar47 Oregon Laws (1941) Chi. 430. Google Scholar48 Laws of Maine (1939) Ch. 273. Google Scholar49 It may be desirable that new definitions of intoxication be established to fit the danger involved. The state of intoxication to constitute a public danger might differ substantially for one walking down the street from one driving a motor vehicle or piloting an airplane. For excellent discussion of this problem see, Hall, Drunkenness as a Criminal Offence, 1 Quarterly Journal of Studies on Alcohol 751 (1941). Google Scholar50 McKinney's Consolidated Laws of New York (1942) § 70 (5). Google Scholar51 Burns Indiana Statutes Annotated (1940) Tit. 47 § 2003. Google Scholar This content is PDF only. To continue reading please click on the PDF icon. Author, Article, and Disclosure InformationAffiliations: Iowa City, Iowa*Received for publication January 25, 1943.†Dean and Professor of Law, State University of Iowa.‡Associate Professor of Biochemistry, State University of Iowa. PreviousarticleNextarticle Advertisement FiguresReferencesRelatedDetails Metrics 1 April 1943Volume 18, Issue 4Page: 564-579KeywordsBiochemistryHematologic testsIntoxicationSafetyTraffic safety ePublished: 1 December 2008 Issue Published: 1 April 1943 PDF downloadLoading ...