Pruitt v. State

• Decision Date: 10 September 1965
• Parties: , 216 Tenn. 686 David Clarence PRUITT, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.
• Court: Tennessee Supreme Court

Page 747

393 S.W.2d 747

20 McCanless 686, 216 Tenn. 686

David Clarence PRUITT, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.

Supreme Court of Tennessee.

Sept. 10, 1965.

James W. Van Cleave, Van Cleave, Hatfield & Parker, Chattanooga, for plaintiff in error.

George F. McCanless, Atty. Gen., Edgar P. Calhoun, Asst. Atty. Gen., Nashville, for defendant in error.

WHITE, Justice.

Plaintiff in error, David Clarence Pruitt, was tried and convicted for second degree murder growing out of an automobile accident in which two pedestrians were killed. He was sentenced to serve not more than twelve nor less than ten years in the State Penitentiary. He was also tried and convicted of leaving the scene of the accident. Sentence there was set at 11 months and 29 days in the Hamilton County Workhouse, and, in addition, a fine of $100.00 was imposed. The sentences were ordered to run consecutively.

These convictions arose out of an accident occurring on October 31, 1963, at about 7:45 P.M., on Wheeler Avenue in the City of Chattanooga. The plaintiff in error's car and another car driven by Charley Smith were involved in a collision, in the process of which two children were killed as they walked along the side of the street. Plaintiff in error immediately left the scene of the collision and drove to his home, not far up the street. The witness, Grady Smith, a passenger in the Smith vehicle, following Pruitt and advised him, when he got out of the car at his home, that he had struck some children.

Pruitt testified that he then went into his house and drank half of a half pint of whiskey. About an hour later he was arrested and taken to Police Headquarters. The arresting officer and another officer who observed Pruitt at that time testified that in their opinion he was intoxicated.

At 9:20 P.M., at Police Headquarters, plaintiff in error was given a Breathalyzer test for intoxication. The test was administered by Police Officer Ingle. The results of the test showed .18 per cent alcohol in plaintiff in error's blood. By statute, T.C.A. Sec. 59-1033 (1955), a concentration of at least .15 per cent alcohol by weight creates a rebuttable presumption of intoxication.

There are essentially two assignments of error:

(1) There is no competent evidence in the record that plaintiff in error Pruitt was intoxicated or had been drinking at the time of the accident; and (2) The evidence of the results of the Breathalyzer test was improperly admitted because the officer who performed the test was not competent as an expert to either administer the test or to testify as to its results, and, in addition, he did not follow the necessary precautions.

These assignments of error concern only the conviction of second degree murder. The conviction of leaving the scene of the accident has not been challenged.

Since the evidence of the Breathalyzer test goes to the sufficiency of the evidence of drunkenness at the time of the accident, we will consider whether the results of the test were properly admitted.

Of all the police service devices now in operation for testing intoxication, the Borkenstein Breathalyzer is perhaps the most recent, having been designated and developed in 1954. It operates on the principle that vapor alcohol from the lungs will oxidize in a solution of postassium dichromate and 50% sulfuric acid. The solution then loses some of its original yellow color and the color change is recorded by a photoelectric cell in comparison with an indentical yellow solution which has not been exposed to the alcohol.

First, the subject blows a certain volume of alveolar (deep lung) air into a cylinderpiston chamber, the cylinder measuring exactly 52.5 cubic centimeters. This volume of air, heated at about 40 to 55 degrees Centigrade, is bubbled through the test ampule of potassium dichromate and sulfuric acid. The test ampule should be at a temperature of about 65 degrees Centigrade (approximately 150 degrees Fahrenheit). From the degree of oxidation measured by the photoelectric cell, the weight of alveolar air alcohol that causes that much color change is measured.

This alveolar air alcohol percentage is then converted by a calibrated scale to indicate the blood alcohol content. The principle behind this conversion is the fact that the same amount of alcohol, by weight, found in 52.5 cc. of alveolar air is that to be found in 1/40 cc. of the subject's blood, a ratio of 1:2100. Also, this formula is based on the fact that in the average normal individual, the carbon dioxide (CO2 ) content of alveolar air is 5.5 per cent. ¹

The Breathalyzer is considered a reliable device for measuring intoxication. An extensive analysis of the accuracy of the Breathalyzer is reported by investigators in an article in 8 Journal of Forensic Sciences 149 (April 1963), cited in Gray, Attorney's Textbook of Medicine Sec. 59.11(2) (Supp.1963):

These investigators state that Breathalyzer readings taken on alcohol solutions of varying concentrations very closely approximate the calculated values. The standard error associated with a reading appears to increase slightly with an increase in alcohol concentration.

The authors feel that the data presented, indicating variability in Breathalyzer readings obtained under Police Department conditions by trained police operators, are within acceptable limits and compare favorably with the data found under experimental conditions.

However, the accuracy of this device does not relieve police investigators of the requirement that a competent expert operator perform the tests. Whatever the device used, this Court has held that qualified experts must operate the machine, and they, or someone else qualified, must interpret these test results in evidence before a trial court. Fortune v. State, 197 Tenn. 691, 277 S.W.2d 381 (1954).

Requirements for an expert to qualify in testifying to the results of scientific tests are very flexible. The trial judge has discretion in admitting expert testimony, at least as to the qualifications of the expert. Fortune v. State, supra, McElroy v. State, 146 Tenn. 442, 242 S.W. 883 (1922); 7 Wigmore, Evidence Sec. 1926 (3d ed. 1940). But this does not mean that this Court must accept without question the discretion of the trial judge, especially where no foundation or predicate has been laid for qualification of the expert.

The State is required to show that the measuring device is scientifically acceptable and accurate for the purpose for which it is used, and that the witness who presents the test results is qualified to interpret them. It is reversible error for the State to fail to qualify a witness as an expert on the operation and results of intoxication tests with scientific devices. Fortune v. State, supra; Lopez v. State, 154 Tex.Cr.R. 227, 225 S.W.2d 852 (1949). If such testimony is admitted without proper predicate and qualification, if can be shown on cross-examination that such witness is not qualified, and it is then proper to strike his testimony. If the witness were properly qualified in advance, cross-examination would only test his credibility as an expert.

We must then determine whether the portion of the record concerning the evidence presented by the State witness Ingle showed sufficient qualification for him to testify.

A reading of cases listed in an annotation in 77 A.L.R.2d 971 (1961) indicates there is no settled formula for determining proper qualifications for an operator of an intoxication testing device. The cases vary from one that holds two days' training sufficient to qualify a witness, Omohundro v. Arlington County, 194 Va. 773, 75 S.E.2d 496 (1953), and to our own decision in the Fortune case, and the case of Hill v. State, 158 Tex.Cr.R. 313, 256 S.W.2d 93 (1953), which have held that a witness who operated the device should be able to understand alveolar air alcohol content to blood alcohol content.

In People v. Morgan, 236 N.Y.S.2d 1014 (Misc.1962), a witness who was 'not [a] medical doctor, pathologist, biologist, hematologist, physiologist, biochemist or toxicologist,' but who had six months' training as a practical nurse and 'on-the-job training under a police lab director in urine analysis was held not a competent expert to testify as to transposition or interpolation from urine alcohol content to blood alcohol content.

In State v. Gregoire, 88 R.I. 401, 148 A.2d 751 (1959), a witness who had received only three hours instruction in the operation of an 'alcometer' was held not competent to testify as to results of the machine he operated even though an expert research chemist and designer of the scientific instruments stated that a man of ordinary intelligence could operate it. A trained qualified person was held especially necessary 'when a new device is presented for the consideration of the courts.' However, the result in this case was specifically rejected in the cases of State v. Roberts, 102 N.H. 414, 158 A.2d 458 (1960), and City of Wichita v. Showalter, 185 Kan. 181, 341 P.2d 1001 (1959)--at least as concerns the alcometer.

Furthermore, in State v. Bailey, 184 Kan. 704, 339 P.2d 45 (1959), it was held not to be necessary that the witness who testified as to the results be the one who also operated the machine; however, the witness must have been properly qualified as an expert, at least to some extent, and the test must have been carried out under his supervision pervision and control.

Robert L. Donigan, in his book, Chemical Tests and the Law (1957), introduces his chapter on the qualifications of persons preparing and presenting chemical test evidence with this statement:

In litigation, procedures involved in conducting chemical tests to determine alcoholic influence may be divided into five principal steps: (1) the taking of a specimen of body fluid or breath from the subject person, (2) the chemical analysis of the specimen to determine its alcoholic content, (3) the translation of this result to...