State v. Johnson
| Decision Date | 30 April 1986 |
| Docket Number | No. 85-57-III,85-57-III |
| Citation | 717 S.W.2d 298 |
| Parties | STATE of Tennessee, Appellant, v. Dorris W. JOHNSON, Appellee. 717 S.W.2d 298 |
| Court | Tennessee Court of Criminal Appeals |
W.J. Michael Cody, Atty. Gen., Kymberly Lynn Anne Hattaway, Asst. Atty. Gen., Thomas H. Shriver, Dist. Atty. Gen., Paul DeWitt, Asst. Dist. Atty. Gen., Nashville, for appellant.
Edward M. Yarbrough, Hollins, Wagster & Yarbrough, Nashville, for appellee.
The defendant was charged with driving under the influence of an intoxicant. He filed a motion to suppress the results of a breath test which was administered to determine his blood alcohol content. The trial judge granted the motion. The state sought and was granted an interlocutory appeal pursuant to Rule 9, T.R.A.P. The sole issue is whether the trial judge erred in granting the motion to suppress the evidence of the breath test.
The trial judge concluded that the Auto-Intoximeter model AI-1000 breath testing device "does not employ methods or techniques generally accepted by the relevant scientific community." According to the trial court, a blood test is the most accurate way to measure the alcohol content in an individual's blood. He concluded that the state must prove blood alcohol concentration only by means of a blood test.
Due to the carnage caused by drivers who operate vehicles under the influence of an intoxicant, the issue presented in this case is an extremely important one. It is important because it directly affects the methods by which law enforcement officers go about their work. It is equally important because it directly concerns the rights of those charged with driving under the influence of an intoxicant, an offense which has now, belatedly, caught the attention of the three branches of government and the public generally.
An extensive hearing was held and testimony was introduced from officers of the Metropolitan Police Department who operate the breath testing program in the city of Nashville. Dr. John Hopewell Hebb, Jr., the Director of Technical Operations for International Clinical Laboratories, and Dr. Hugho Pribor, the Medical Director for International Clinical Laboratories and a clinical professor of pathology at the Vanderbilt University School of Medicine, also testified for the state. The trial judge admitted as exhibits the expert testimony from the cases of State of Tennessee v. Frank T. Baxter and State of Tennessee v. Mark E. Jerikovec, at which the trial judge and another judge jointly presided. In those cases, the judges rendered divergent opinions concerning the admissibility of breath tests. From the record in those cases the appellant presented the testimony of Dr. Charles William Stratton, a clinical pathologist at the Vanderbilt University Medical Center, and the state presented the testimony of William L. Spitler, the Director of Training and Scientific Development for Intoximeters, Inc. of St. Louis, Missouri, the manufacturer of the Auto-Intoximeter.
Tennessee law, like that of every American jurisdiction, prohibits the driving of motor driven vehicles upon the public roads and highways while "under the influence" of any intoxicant. TCA Sec. 55-10-401(a). The degree to which an individual is "under the influence" of an intoxicant is determined by the amount of the intoxicant in the brain. Direct measurement of the amount of alcohol in the brain is not possible while the individual is alive. That measurement can only be made at an autopsy. Therefore, samples of other biological materials must be used to make that determination. Blood, urine, saliva, and the breath have been utilized for that purpose. McCormick on Evidence, Sec. 205 A., p. 615.
Using these methods to determine whether an individual is intoxicated raises two problems--the accuracy of the measurement itself and the extent of the correlation between the concentration of alcohol in the sample and the degree of intoxication. Id. Both of these problems were addressed in this case.
The proof revealed, and the authorities agree, that the most accurate and reliable method of testing the amount of alcohol reaching the brain is to test the blood, for it is the blood which carries the alcohol from the absorption surfaces in the intestines to the brain. Id. However, even that method is not entirely accurate, since there is no known method to entirely eliminate error from the examination of biological substances. The integrity and skill of the examiner, the methodology of the examination, and the accuracy of the reporting system, taken together, determine the accuracy and reliability of the testing.
Even assuming accuracy in the examination, the fundamental problem remains. The problem is moving from an estimated value for the blood alcohol concentration to a correct statement of the degree of intoxication during the crucial period, in this case, at the time of the driving. The substantial variability in tolerance to alcohol, absorption rates, and clearance rates, both among individuals and within the same individual from time to time, complicate the efforts to deduce the true extent of intoxication at the time of the driving. For these reasons, the extrapolations are more perilous than is generally recognized. Id.
Under the Tennessee statute, evidence that ten-hundreths of one percent (.10%) or more by weight of alcohol is in the defendant's blood creates a presumption that the defendant was "under the influence" of an intoxicant, and that "his or her ability to drive was impaired thereby" sufficiently to constitute the offense of driving under the influence of an intoxicant. TCA Sec. 55-10-408(b). By driving a motor vehicle in this state, the driver gives "implied consent" to "a test" to determine the alcoholic or drug content of his blood. TCA Sec. 55-10-406(a)(1).
In order to facilitate testing procedures, breath tests have been devised for use by law enforcement agencies. Breath testing has the advantages of mobility of the testing devices and the less intrusive nature of the test. However, it has been recognized that measurements of alcohol content of the blood by sampling the breath is less reliable than direct testing of the blood. Testing of urine is even more unreliable, and saliva testing is "still more infrequent and problematical." McCormick on Evidence, supra, at n. 10, p. 616.
The testing of breath for alcohol content of the blood is derived from the fact that blood and breath "meet" at the alveoli in the lungs. Oxygen is imparted from the breath to the blood in exchange for wastes which are imparted from the blood to the breath. Since it is impossible to actually go down into the lungs for testing, scientific principles must be applied in order to accomplish the testing. The principle applied to this process is Henry's Law.
This law of physics, observed and first described by William Henry in 1803, recognizes that the concentration of a volatile substance dissolved in a liquid is directly proportional to the vapor pressure of the volatile substance above the liquid.
As applied to blood alcohol testing, it is believed that the concentration of alcohol in the blood is directly proportional to its concentration in the deep lung air of the person being tested. The trick is how to formulate the proper ratio of alcohol found in the breath to the alcohol found in the blood. This has been the focus of disagreement in the scientific community, but the generally accepted ratio is 2100:1. Whatever the concentration of alcohol may be in the blood, the concentration of alcohol in the person's deep lung air is 1/2100th as much. To compute the blood alcohol content, it is necessary to obtain a sample of deep lung air of known volume, determine the amount of alcohol in the breath sample and then mathematically convert that quantity to a percentage of blood alcohol, using the 2100:1 ratio.
The Auto-Intoximeter accomplishes this in the following manner: The person to be tested blows into a mouthpiece attached to the machine to insure that only deep lung air is tested. A solenoid is connected to a diaphragm valve located on a fuel cell assembly. The solenoid activates after the person has expelled a certain amount of air. The diaphragm is triggered and it draws one-half cubic centimeter of air from the last portion of the person's breath into the fuel cell assembly. The fuel cell is a mylar chip covered with a grid of platinum. The breath passes over the active surface of the fuel cell and a chemical reaction occurs between the alcohol and the platinum which converts the alcohol in the breath into acetic acid and frees one electron from each molecule of alcohol. The freed electrons then generate an electrical signal that is proportional to the amount of alcohol present. The signal is amplified and translated by the computer in the machine into a blood alcohol level, using the ratio derived from Henry's Law.
Dr. Stratton, the clinical pathologist, was called by the defense to outline the deficiencies that he saw in the machine. First, he saw that there was no guarantee that the machine was actually testing deep lung air. A failure to sample deep lung air would result in an inaccurate reading. He noted that spitting, burping and regurgitation, conditions which frequently occur among those who have been drinking alcoholic beverages, can produce unreliable results. He challenged the validity of the 2100:1 conversion ratio and noted that the ratio is not consistent from individual to individual, nor even consistent in the same person at different times. He contended that body temperatures and atmospheric pressure were factors affecting the accuracy of the machine and that these were not taken into account by the Auto-Intoximeter. Dr. Stratton concluded that all of the current scientific literature doubts the accuracy of breath analyzers in determining the blood alcohol content of...
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