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Reverse Extrapolation

February 14, 2008

Vehicle and Traffic Law '1192(2) criminalizes conduct which includes operating a motor vehicle with more than .10% of alcohol in the bloodstream.  Any test of the motorists blood alcohol content must be done in accordance with Vehicle and Traffic Law '1194 which, as we saw last issue, creates the two-hour rule.  Described by some courts as a "rule of relevance" (see, People v. Sesman, (1987) 137 Misc2d 676, 521 NYS2d 626; and see, People v. Bock, (1977) 77 Misc2d 350, 353 NYS2d 647), the juxtaposition of these two statutes therefore begs the obvious; is it illegal to drive a motor vehicle with more than .10% of alcohol in the bloodstream at the time of operation or is it simply enough for a test administered within two hours of arrest to show the motorist possessed the statutorily prohibited amount?  The answer to this question can be crucial inasmuch as a finding that the later is a correct statement of the law will bar consideration by the trier of fact of any evidence or testimony as to the blood alcohol content of the motorist at the time of operation.

In People v. Mertz (1986) 68 NY2d 136, 506 NYS2d 290, the Court of Appeals carefully reviewed the statutory history of Vehicle and Traffic Law '1192 and concluded that BAC at the time of operation was the sought after number.  Accordingly, the Court found error on the part of the trial court in refusing to permit the defendant to offer evidence that the alcoholic content of his blood at the time of operation was lower than it was when the test was conducted.  Following Mertz, in 1988 the legislature sought to overrule that aspect of Mertz and amended '1192 through the addition of the description per se to the title of the offense.

Recently, in People v. Stevens, NYLJ 6/27/94, p. 25, this issue came to the forefront.  Before reviewing Stevens, however, let's take a look at the absorption of alcohol and the underlying premise upon which the defense is based.

Consumed orally, alcohol passes to the stomach by means of the esophagus, where a small degree of absorption occurs.  Retained within the stomach for an indefinite period of time, it thereafter proceeds to the small intestine where it is primarily absorbed and sent to the brain through the carotid arteries.  The physiological impairment that we commonly call intoxication transpires as a result of the presence of alcohol in the fluid that surrounds the tissues of the brain.  Breathanalysis, by sampling the breath which recently surrounded the alveolar sacks  where arterial blood undergoes oxygenation, is an indirect means of measuring the alcoholic content of freshly oxygenated arterial blood immediately before it reaches the brain.  While the foregoing is a gross simplification of a complicated metabolic process, it should nevertheless appear evident that a crucial factor in testing is absorption.  If consumption occurred an extended period of time prior to testing, those factors which impinge upon the rate of absorption cannot be ignored.

While popular thinking tends to subscribe to the assumption that each drink a motorist ingests will raise the blood alcohol level .02% and that each hour spent imbibing will reduce the level by an equal amount, this rate is only rough indication of the processes which might take place during consumption.              Alcohol, obviously, cannot be eliminated before it is absorbed.  Is there a uniform rate at which such absorption occurs?  Probably not.  As noted by Jones, Jönsson and Neri in "Peak Blood-Ethanol Concentration and the Time of its Occurrence After Rapid Drinking on an Empty Stomach," (36 Journal of Forensic Science, No.2, March 1991 at p. 381): "The absorption profile of ethanol differs widely among individuals.  The peak blood ethanol content and the time of its occurrence depends upon numerous factors."

How then can the practitioner determine the absorption rate of the motorist?  The answer to this critical inquiry requires a working knowledge of the factors influencing the speed with which the human body absorbs alcohol.

In Retrograde Extrapolation of Blood Alcohol Data: An Applied Approach, (Journal of Toxicology and Environmental Health, 36:281-292, 1992) Montgomery and Reasor identified some of the more pivotal factors.

Absorption from the gastrointestinal tract.  As set forth above, alcohol is absorbed to only a small degree by the stomach.  Edward F. Fitzgerald and David N. Hume, in their outstanding text  Intoxication Test Evidence: Criminal and Civil (Lawyer's Cooperative Publishing, 1987, '2:2) describe stomach absorption as "under 'normal' conditions somewhere between 5% and 10% on the low side to about 20%."  Since the bulk of the absorptive process occurs in the intestinal tract it must first pass through the stomach.  Thus if one wishes to determine the rate with which the absorptive process actually occurred it is necessary to assess those factors controlling the rate with which it leaves the stomach.  On an empty stomach, all alcohol may be absorbed within 30-45 minutes after the last drink.  The presence of a small amount of gastric contents, however may delay absorption by an additional 30-45 minutes.  Thus, if one wishes to estimate on the safe side, complete absorption and elimination will not occur until an hour and a half after the last beverage is consumed (Montgomery and Reasor, at p. 284).  Thus, although it is commonly assumed that food will prevent the effects of the beverage by somehow absorbing the alcohol, this is not so.  Consuming food with the beverage will not prevent intoxication, the most probable result will be to simply delay the effects of the drug.

Effect of Beverage Volume and Alcohol Concentration.  If knowing whether one ate in the last several hours were all one had to contend with, absorption would present little difficulty.  Such, however, is not the case.  The absorption rate of alcohol is not linear; Montgomery and Reasor note that the rate at which alcohol is absorbed and eliminated "decreases as the volume of alcoholic beverages consumed increases."  This appears to be due to the fact that the pyloric sphincter muscle, the muscle at the base of the stomach that must open to allow the passage of stomach contents, becomes partially paralyzed with consumption.  Additionally, the larger the quantity consumed, the greater the effect.  The failure of this valve, if you will, to permit the passage of alcohol, further delays absorption by the small intestine.  Moreover, at high BAC's the decreased concentration gradient between the alcohol and gastric contents additionally increases the non-linear rate of absorption.

Gender and type.  Supplementing absorption extrapolation problems is data that tends to show that after consuming the same quantity of alcohol, females may achieve a higher peak BAC than males.  This phenomenon has been observed even when the results obtained have been adjusted to account for known differences in body mass (Montgomery and Reasor, at p. 284, citing, Fezza, J., Di Pavoda, C., Pozzato, J., Terpin, M., Barona, E. and Lieber, C. S., 1980, "Blood Alcohol Levels in Women, the Role of Decreased Gastric Alcohol Dehydrogenase Activity and First-Pass Metabolism," N. Engl. J. Med., 322: pp. 95-99).  Dubowski ("Human Pharmacokinetics of Ethanol: Peak blood concentrations and elimination in male and female subjects," Alc. Tech. Rep. 5, p. 55-63, 1976) has reported that woman take longer to achieve the peak state of intoxication, and will tend to achieve higher blood alcohol concentrations on identical doses, although the hourly rate of decrease is 23.6% higher in females.  Likewise, liquors are absorbed slightly faster than wines which are absorbed faster than beer.

Individual differences.  Individual differences create perhaps the greatest obstacle.  In tests reported by Jones, et. al. (Jones, Jönsson and Neri, "Peak Blood-Ethanol Concentration and the Time of its Occurrence After Rapid Drinking on an Empty Stomach," 36 Journal of Forensic Science, No.2, March 1991 at p. 381), 12 individuals ranging in age from 20 to 60 were given .8g of alcohol per kg of body weight on an empty stomach.  Thereafter, their venous blood alcohol content was checked every fifteen minutes.  The results were indeed startling.  The fastest absorber recorded his peak BAC, .144%, at the thirty minute mark.  The slowest absorber, on the other hand, would not peak until two hours, where he recorded a .076%.  What the slow absorber gained by virtue of a lower BAC, he lost as a result of the longer period he remained impaired.  Viewed from a social setting, the fast absorber would probably have encountered fewer legal consequences, had he been driving, since his BAC had returned to .00% a scant 45 minutes after drinking.  Our slow absorber, on the other hand and again, from the viewpoint of one who had attended a cocktail party, would not fare so well.  His BAC would pass the legal limit and remain above that recognized as impaired for more than two and one half hours.  Of further significance, Dubowski ("Absorption Distribution and Elimination of Alcohol: Highway Safety Aspects," Journal of Studies on Alcohol, July, 1985, p. 105) has noted that even individual absorption rates differ considerably between subjects and further that even individual absorption/elimination curves oscillate rapidly "in short time periods above and below any given concentration."  In the previously referenced study, Dubowski found variations of .025 and greater to occur in individuals over time periods as short as 15 minutes.  This factor, Dubowski concludes "should be recognized in both research on alcohol and in evidentiary use of blood or breath alcohol concentrations in the prosecution of per se law violations."

Rate of Consumption.  What about the rate of consumption?  Will one be helped by drinking at a slower pace?  Probably not.  Montgomery and Reasor (Montgomery and Reasor, at p. 286) discussed a situation where three different individuals consumed 10 drinks in a three‑hour period.  Case A consumed five drinks in the first hour, three drinks in the second hour and two drinks during the third.  Case B consumed three in the first, four in the second, and three in the third.  Finally, C consumed two, three and five.  The results?  All reached a nearly identical BAC of .15% within an hour of each other.  Clearly when the test is administered at the outside edge of the two-hour limit this factor is one with which the parties must contend.

So much for absorption, what about elimination.  Is the rate at which the human body eliminates alcohol predictable to the extent that once the individual has fully absorbed or is "post absorptive," his or her blood alcohol may be predicted with a reasonable degree of certainty?  While conventional wisdom (see, section by Victor & Adams: Harrison, Principles of Internal Medicine (1983), p. 1286) would have it that when absorption has ceased, ethyl alcohol is oxidized at a constant rate irregardless of the peak concentration.  Wagner, et. al., (Wagner, Wilkinson, Sedman, Kay, Weider, "Elimination of Alcohol From Human Blood," Journal of Pharmaceutical Sciences, vol. 65., no. 1) have found that on constructing a curve of the rate at which the human body eliminates alcohol, one must make allowances for concentrations.  Thus, according to the authors, estimation of blood alcohol concentrations based on the rate of decline "can only be done in individual patients who ingest a given dose of alcohol."  In a field such as alcohol influenced operating offenses, where the size of the given dose is generally unknown or hotly disputed, this disclosure is of telling consequence.

The foregoing having been said, let's return to Mertz.  In Mertz, the defendant offered testimony from an associate professor of physiology to the effect that the rate of alcohol absorption varies in various circumstances and depends upon factors ranging from emotional status to the type of food that was recently consumed.  Based upon these factors, the expert opined that "there was no way to predict . . . whether defendant's BAC was greater than .10 two hours earlier."  When, however, defense counsel attempted to argue this fact on summation, the trial judge sustained the prosecutors objection, finding that "the only question for the jury was whether the sample was taken within two hours of arrest and showed a BAC in excess of .10 . . . "  Convicted of a violation of Vehicle and Traffic Law '1192(2), on appeal to the Court of Appeals the defendant argued that the structure and history of New York's BAC statute was such that it was the blood level at the time of operation that was of consequence and thus his argument was proper if not mandated.  Identifying the crux of the issue to be created by the language "as shown by a test," the Court proceeded to review the rather tangled web of precedent, both in state and out, that exists on this issue.  Ultimately determining that the statute had to be "construed so as to avoid doubt as to their constitutionality," the Court held: "What the statute proscribes is operation of a motor vehicle 'while [the operator] has .10 of one per centum or more by weight of alcohol in his blood'. * * * [T]he BAC count shown within two hours after arrest is strong but not conclusive evidence of the BAC during operation.  To foreclose a defendant's introduction of evidence seeking to establish that his BAC while operating was less than .10 may raise doubt as to constitutionality and . . . to construe it as has the Appellate Term is essentially to rewrite the statute.  When, however, [BAC evidence] has been presented, defendant must be permitted to argue its significance to the jury" (Mertz, at 146).

In 1988, the legislature undertook the first major recodification of alcohol influenced operating offenses since 1970.  Inherent in this action was retitling Vehicle and Traffic Law '1192(2) to read: "Driving While Intoxicated, per se."  While the bulk of the legislation was not intended to bring about substantive change, the memorandum of the State Executive Department which was submitted with the bill set out: "The language of section 1192(2) is changed from existing law to accommodate the decision in People v. Mertz, (68 NY2d 136 [1986]), which permits the introduction of evidence to show that, at the time of operation of the vehicle, a person's blood alcohol content was less than .10, notwithstanding the fact that a subsequent test (within 2 hours of arrest) indicated a BAC in excess of .10.  The amendment is intended to negate this possibility" (Mem of State Exec Dept, L 1988, ch 47, supra, McKinney's 1988 Session Laws of NY at A‑114).

The import of this enactment has been to cause some to say that upon the trial of an information or indictment charging a violation of Vehicle and Traffic Law '1192(2), the defendant is no longer free to argue that his or her blood alcohol content was below the statutorily permitted .10% at the time of operation.  Although, as we will see, the Third Department has stood steadfastly by the rule as expressed in Mertz, fuel was added to the fire by the dissent in People v. Scalzo (1992, 2nd Dept) 176 AD2d 363, 574 NYS2d 782.  In Scalzo, a toxicologist was permitted to testify as to the rate at which alcohol is metabolized and was further permitted to testify that "the defendant's blood alcohol content based on such factors as the defendant's weight, whether the alcohol was absorbed on a full or empty stomach, and the time that elapsed between the accident and the taking of his blood sample."  Refusing to find error, since the amendment to Vehicle and Traffic Law '1192(2) followed the occurrence of the offense, Justice O'Brien nonetheless opined that "[A]ccording to the memorandum of the State Executive Department to the Legislature, the statute was changed to prevent a defendant from introducing expert testimony that, although his blood alcohol content was .10 of one percent at the time of the chemical analysis, it was lower at the time he was involved in the accident" (Scalzo, at 368).

In People v. Stevens, NYLJ 6/27/94, p. 25, the People, apparently citing the legislative history of Vehicle and Traffic Law '1192, brought a motion in limine to preclude the defendant from offering evidence that his blood alcohol content was lower at the time he operated his vehicle than it was at the time a chemical test was administered.  Describing the issue as one of first impression, Judge Mahon reviewed Mertz and the legislature's 1988 response.  Comparing the present offering with the version that existed prior to 1988, the Court noted that the only relevant change was the addition of the description "Driving While Intoxicated; per se."  Notwithstanding that the memorandum of the State Executive Department to the Legislature stated that the express purpose of the bill was to overrule Mertz, the Stevens court was troubled by the legislative findings which were submitted with the legislation.  These declared that "[in] enacting such a recodification, it is not the intent of the legislature to disturb or endorse existing case law or administration practice.  Rather, it is to achieve greater clarity and comprehensibility through the consolidation of the provisions into one article" (L 1988, ch 47, '1, McKinney's 1988 Session Laws of NY).  Turning to the act itself, the Court observed that its sole change was the addition of the descriptive heading.  Such a change, it held, could not successfully abolish the Mertz rule even if intended.  "A heading of a portion of a statute such as a chapter or a section 'usually is not a part of the act and does not exceed or restrict the language contained in the body of the statute' . . . (Stevens, quoting McKinney's Statutes '123[b]).  Although a heading 'may be resorted to as an aid in ascertainment of the legislative intent where a provision is ambiguous in meaning'" (Stevens, supra.), clearly '1192(2) is unambiguous in its meaning.  Finding a more probable purpose of the amendment was to distinguish the offense from Vehicle and Traffic Law '1192 subdivisions (1) and (3) which also received headings, the Stevens court was troubled by the constitutional ramifications which would be raised by the proposed interpretation.  In Mertz, the Court of Appeals had indicated that "[to] foreclose a defendant's introduction of evidence seeking to establish that his BAC while operating was less than .10 may raise doubt as to constitutionality" (Stevens, quoting, Mertz, supra, at 146).  Therefore, "[t]he effective imposition of absolute liability through the preclusion of such evidence would violate a defendant's constitutional right to due process, as it would not only undermine the factfinder's responsibility at trial to find the ultimate facts beyond a reasonable doubt but would also seriously hinder the presentation of a defense against a charge under Vehicle and Traffic Law '1192(1), for which a defendant may be convicted despite the fact that he has been charged only under subdivision 2" (Stevens, supra, [internal citation omitted]).  Moreover, rejection of the People's contention was also grounded upon principles of stare decisis.  Finding that the Third Department has continued to apply the rule as expressed in Mertz, the Stevens court noted that the absence of a contravening decision in the Second Department called for application of the rule.

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