State v. Bjornsen

271 N.W.2d 839, 201 Neb. 709, 1978 Neb. LEXIS 849

• Court: Nebraska Supreme Court
• Decided: November 22, 1978
• Docket: 41849
• Status: Published

Opinions

White, J.

Defendant appeals from a conviction of operating a motor vehicle while having ten-hundredths of one percent of alcohol by weight in his body fluid.

There is no evidence of the defendant’s intoxication sufficient to sustain a conviction other than the results of a blood test. The testimony of the sheriff who arrested defendant following the accident merely disclosed the defendant had the odor of alcohol on his breath and that a partially-filled wine bottle was found at the scene.

The chemist who tested the blood sample of the defendant testified the test conformed to the standard set forth in section 39-669.11, R. R. S. 1943. He testified on direct examination that the results of the test disclosed the presence of ten-hundredths of one percent of alcohol by weight in the sample. On cross-examination the chemist was asked: “Q- What is correct? Is it you are telling me it (the test) is 100% accurate. Is that correct?

‘‘A- I’m telling you it’s accurate within five thousandths of a percent. * * *

‘‘Q- Well, I don’t want it qualified. I want you to tell me if it — if it’s off that much, no one can do it more accurately than that, in your opinion. Should that wouldn’t then, put it below a .10? Would it or not?

‘‘A-Yes. It would.”

The contention of defendant is that the State has not met its burden of proof of the crime, namely, it has not offered evidence showing that defendant had the requisite percent of alcohol by weight in his blood. The State answers this contention by arguing that section 39-669.11, R. R. S. 1943, provides: ‘‘Any test * * * if made in conformity * * * shall be competent evidence in any prosecution * * *” and that any variances inherent in the testing process are irrelevant, providing the chemist testifies to the minimum content of alcohol by weight in the body fluid.

We do not agree. While there is a scarcity of authority on the subject, we think the correct rule is that announced in State v. Graham (Mo. App.), 322 S. W. 2d 188. In that case the Missouri Supreme Court, while judicially recognizing the validity of radar as a speed-measuring device and acknowledging that a reading of a radar device was admissible in evidence, discussed the tolerance or outer limits of the accuracy of the device, and stated: ‘‘The evidence given by the machine should not be accepted if the question involved falls within this tolerance.” The evidence as to the tolerance was one mile per hour.

While the Legislature has the acknowledged right to prescribe acceptable methods of testing for alcohol content in body fluids and perhaps even the right to prescribe that such evidence is admissible in a court of law, it is a judicial determination as to whether this evidence is sufficient to sustain a conviction, if the evidence is believed. The Legislature has selected a particular percent of alcohol to be a criminal offense if present in a person operating a motor vehicle. It is not unreasonable to require that the test, designed to show that percent, do so outside of any error or tolerance inherent in the testing process.

The judgment is reversed and the cause dismissed.

Reversed and dismissed.