City of Abilene v. Hall

• Decision Date: 08 March 1969
• Docket Number: No. 45242,45242
• Citation: 451 P.2d 188,202 Kan. 636
• Parties: CITY OF ABILENE, Appellee, v. Isaac C. HALL, Appellant.
• Court: Kansas Supreme Court

Page 188

451 P.2d 188

202 Kan. 636

CITY OF ABILENE, Appellee, v. Isaac C. HALL, Appellant.

No. 45242.

Supreme Court of Kansas.

March 8, 1969.

Syllabus by the Court

1. In a criminal action charging a defendant with unlawfully driving a motor vehicle on a public street while under the influence of intoxicating liquor, a sample of blood voluntarily given by the defendant was analyzed by the Kansas State Department of Health by a new method known as 'Gas Chromatography,' using an instrument known as a 'Beckman GC-4 Gas Chromatograph' to determine its alcoholic content, and on appeal it is held: (a) The testimony of a chemist employed by the State Department of Health, using such method to determine the blood alcohol content, was admissible in evidence even though he could not explain the sophisticated electronic detector and recording device of such instrument; and (b) the result of such test was properly admitted into evidence pursuant to K.S.A. 8-1005.

2. A chemist, having the proper academic background and practical experience, and authorized by the State Department of Health to make a blood test by the 'Gas Chromatography' method to determine the alcoholic content of a defendant's blood, who had a complete and full understanding of the device which he was using to make the test, is qualified to testify concerning such method of blood alcohol analysis and to state the results of such test.

3. The testimony of an expert chemical witness, who determined the alcoholic content of a defendant's blood by the method of 'Gas Chromatography,' is properly received in evidence even though such witness cannot explain the sophisticated electronic detector and recording device of such instrument, where, before making the particular test on the sample of blood taken from the defendant, tests are made on known concentration of blood and alcohol samples with such instrument to check the accuracy of its operation.

4. It is generally held the fact that there may be some disagreement on the part of a few in the scientific and medical community as to the reliability of a particular method used to determine blood alcohol content, is a matter affecting the weight of such evidence and not its admissibility. Such evidence is admissible as long as a qualified expert witness testifies that the particular test method employed in a given case is reliable and accurate in his opinion, and also that it is generally accepted as such by other experts in the field.

John F. Christner, Abilene, for appellant.

D. V. Romine, Abilene, for appellee.

SCHROEDER, Justice.

This is a criminal action in which the defendant was found guilty in the police court of the city of Abilene, Kansas, of driving an automobile while under the influence of intoxicating liquor on the streets in Abilene, in violation of ordinance on the 8th day of March, 1967, and upon appeal to the district court was found guilty of such offense by a jury. Appeal has been duly perfected.

The questions pertain to the admissibility of evidence at the trial in the district court.

Only the facts necessary to determine this appeal will be stated. Robert Harvey, a chemist employed by the Kansas State Department of Health, was called as a witness. He holds a Bachelor of Science Degree in chemistry from Washburn University at Topeka, Kansas, and had performed blood alcohol examinations for the State Department of Health for approximately two and one-half years prior to the time of his testimony. He received his training from Dr. Glendening, who is head of the chemistry section of laboratory services at the Kansas State Department of Health. Approximately 85 percent of Robert Harvey's time was spent with the State Department of Health in making blood alcohol analyses.

Harvey performed the blood alcohol test on the sample of blood taken from the defendant relative to the offense charged herein, and upon the evidence there is no question but that the specimen of blood analyzed was traced to the defendant as the specimen taken from him at the time of his arrest.

The method used in making the blood alcohol test was that of 'Gas Chromatography' using an instrument known as a 'Beckman GC-4 Gas Chromatograph.'

Upon direct examination Harvey testified he determined the percent by weight of ethyl alcohol in the sample of blood taken from the defendant and determined the percentage to be 0.288. He further testified he was fully familiar with the machine he was using and with its operation. He testified this method of determining the alcoholic content in blood is accurate and scientifically accepted.

The questions presented are confined to the method used in determining the blood alcohol content, the Beckman GC-4 Gas Chromatograph being a new device used to determine blood alcohol content. The appellant contends the trial court erred in accepting the testimony of Harvey regarding blood alcohol test procedures and results because Harvey was not acquainted with the testing device. He further contends the court erred in not requiring a sufficient foundation prior to the acceptance in evidence of an exhibit disclosing the blood alcohol test results.

Harvey testified the gas chromatograph instrument, used in determining blood alcohol content, is much more complicated and sophisticated than any of the other methods previously used in determining blood alcohol content. Highly summarized from his testimony on both direct and cross examination we glean a description as follows:

The Beckman GC-4 Gas Chromatograph is an instrument used for detecting various organic vapors. The process begins by placing one cubic centimeter of whole blood in a 35 cubic centimeter serum bottle and sealing it, allowing the sample to come into equilibrium with vapors forming above the liquid. One cubic centimeter of the vapor is then withdrawn and injected into the machine. From this point on the process becomes completely mechanical save the interpretation of the graphic results. After injection the vapor passes through one of two vertical six-foot stainless teel columns which have an inside diameter of one-fourth inch. The other column is identical and is used solely for control purposes. The columns are packed with a white, ground firebrick material known as chromosorb, and helium gas under pressure is utilized as a vehicle. The columns are enclosed in an oven which is maintained at a constant temperature of 100 centigrade.

At the terminus outside of each column is a flame, itself enclosed in the instrument and whose burning is controlled by an independent supply of hydrogen and oxygen. Before a sample is injected for analysis these flames are completely balanced. When the sample reaches the one flame the balance is upset and a change is caused in the intensity of burning which is noted by means of an electronic detector and recorder. The recorder is set to plot a straight line prior to injection of the sample. It is the change in this line or peaks on the graph which determine the quantity of the substance present. Likewise, it is the time it takes for the substance to pass through the column which determines the character of the substance. The time the substance is retained in the column varies with its molecular weight and structure, and the retention time is measured on the same graph and is determined by the graph or chart moving through the pen of the detector at the rate of one-half inch per minute. It is the difference in burning of the flames and the retention time in the column that determines the character of the substance and its quantity.

Harvey testified the retention time of ethyl alcohol is three minutes.

On cross examination Harvey testified that on the particular day he ran the test on the sample of blood taken from the appellant he made a test run on known concentrations of blood and alcohol samples by running them through the machine prior to making the test on this particular sample. Accuracy of the instrument is checked by running the standard samples through. This was normal daily procedure.

When Harvey was asked on cross examination how he determined the alcoholic content when the gas passed through the column and reached the flame, he said:

'A. Well, there's a detector, and don't ask me how it works, because I really couldn't tell you, but there's a detector at the end of both these flames which can detect the flame height and burning characteristics of the flame. When the sample hits the hydrogen flame it's going to cause a change in the characteristics of the burning. The detector senses this and it's sent to a-uh, the recorder, which amplifies--

'Q. Now, just a minute before we go further. The sample has now reached the flame, and the detector device has come into play.

'A. Yes, sir.

'Q. Then from that time forward-I believe you indicated in the rest of your answer that this is mechanical?

'A. Sir?

'Q. That it was mechanical what the detector did and whatever else happened; is that right? The device activates itself and goes through certain procedures or makes certain marks on something?

'A. I inject the sample, and from that time on until it is plotted on the chart paper, I-it's all done within the instrument.

'Q. I see. And you can't explain this detector to us?

'A. That's a very sophisticated electronic piece of equipment. I wouldn't even begin to be able to explain it.

'Q. And is this considered a new device in the field for making these analysis?

'A. Yes-gastromatography. It's real new. A detector is attached to the standard column as well as...