For the Defense - Volume 1, Issue 3 - 2016 - 49

temperature. This methodology was shortlived because of its problems.18 The National Safety Council sponsored a study to evaluate the three first generation devices which were in use.19 There were constant challenges regarding the complexity, accuracy and reliability with the three devices. The issued report recognized that the principle of operation for all three devices was centered on the ratio (2100:1) between the blood and the breath air of the tested individual. There arose in the early 1970s, controversy about using a fixed blood to breath ratio of 2100:1. Therefore, again with support from the National Safety Council, an ad hoc meeting was held in 1972 at the Indiana University Law School in Indianapolis, Indiana. This committee brought together some of the leading researchers in the field of breath alcohol testing. Ultimately, after reviewing the prior 40 plus years of medical literature, the committee, by fiat, agreed that a blood/ breath ratio of 2100:1 was warranted for breath testing in the U.S.20 This ratio is a compromise, which arose in the 1950s, rather than a valid absolute ratio. However, this support of the ratio of 2100:1 and the use of chemical testing for alcohol, accelerated the development of newer devices. In a review article, there appears a table in which six generations of breath-alcohol instruments are classified. 21 Partition Raio Variability A table22appears in a comprehensive review article which gives a listing for values of the ratio of blood alcohol concentration (BAC) to breath alcohol concentration (BrAC). 23 This table contains the reported data from 1930 to 1964 for paired blood-alcohol and breath-alcohol concentrations. The reported range of values in the literature is from 1004-7289:1 for the human partition ratios. Still, in most of the world, everyone's breath test result is based upon a fixed 2100:1 partition value. The exceptions worldwide are Austria and France (2000:1), the United Kingdom and Holland (2300:1).24 Their certification agencies reviewed the same scientific and medical literature comparing blood/breath ratios. For whatever reason/ reasons, these countries have partition ratios different then the 2100:1 ratio which is the most widespread worldwide. Legal Cases Involving the Partition Ratio In State v. Burling,25 the Nebraska Supreme Court in 1987 recognized uncontroverted testimony of a pharmacologist "that if one's blood-to-breath distribution ratio were at the 3400:1 level, the machine would underestimate his or her blood alcohol level, whereas if one's distribution ratio were at the 1100:1 level, the machine would overestimate his or her blood alcohol level." In 2001, the Supreme Court of Vermont, addressed the issue of a motion in limine filed by the State to limit defense counsel's cross-examination of the State's expert witness, a Department of Health chemist.26 There the State chemist agreed that partition ratios can vary from 1600:1 to 3000:1 and further acknowledged that other experts have recognized an even greater variance in a small percentage of the population. The Court found: "We are not persuaded by the State's arguments that allowing defense counsel to cross-examine the state chemist concerning the variability of partition ratios would be inconsistent with the statutory scheme and lead to jury confusion." The Court also stated: "We fail to see how such evidence should be confusing to the jury or unduly prejudicial to the State; to the contrary, not allowing defendants to reveal these scientifically recognized facts would make it difficult, if not impossible, for a defendant to challenge a test result that is admissible in generic DWI prosecutions only as a permissive inference on the ultimate question of impairment." In an Arizona Superior Court appeal case,27 the Court differentiated whether evidence regarding the blood-to-breath partition ratio (2100:1) was relevant for prosecution. The Court concluded that evidence is not relevant to a prosecution for per se DUI, but may be relevant to a prosecution for a "traditional DUI" where the State must prove that a defendant was driving or in physical control of a vehicle "while under the influence of intoxicating liquor." Vol. 1, Issue 3 | For The Defense 49

Table of Contents for the Digital Edition of For the Defense - Volume 1, Issue 3 - 2016