The Two Hour Rule Where is it Now
February 14, 2008
If it can be said that there exists an enigma within the bounds of NY DWI, that enigma must be the so-called two hour rule. It is with less than a mild twinge of irony that we recall how in Volume One, Issue 10, we took note of the highly skeptical foundation as to whether this rule exists. While, here and elsewhere, we looked with anticipation to the day when the Court of Appeals would address the parameters of this issue, most will agree that more questions than answers littered the wake of the Court's 1995 foray into this twisted front.
Since we reviewed the history of the two hour rule last year, we will be brief as to its origins. The modern two hour rule is found in Vehicle and Traffic Law '1194(2)(a). This unpretentious provision sets forth:
2. Chemical tests.(a) When authorized. Any person who operates a motor vehicle in this state shall be deemed to have given consent to a chemical test of one or more of the following: breath, blood, urine, or saliva, for the purpose of determining the alcoholic and/or drug content of the blood provided that such test is administered by or at the direction of a police officer with respect to a chemical test of breath, urine or saliva or, with respect to a chemical test of blood, at the direction of a police officer:
(1) having reasonable grounds to believe such person to have been operating in violation of any subdivision of section eleven hundred ninety‑two of this article and within two hours after such person has been placed under arrest for any such violation, or
(2) within two hours after a breath test, as provided in paragraph (b) of subdivision one of this section, indicates that alcohol has been consumed by such person and in accordance with the rules and regulations established by the police force of which the officer is a member.
Crucial to an understanding of the conflict that continuously swirls about this rule is the phrase shall be deemed to have given consent. Facially, placement of the rule within the subsection setting out New York's implied consent provision would seem to indicate a decided legislative preference for limiting the confines of the rule to those instances where the motorist's consent has been implied as opposed to expressly given. As detailed in Volume One, Issue 10, prior to 1970, the two hour rule had been contained in the prohibitive statute, Vehicle and Traffic Law '1192. However, it must be recognized that at that time New York had no per se statute.[i] With the creation of what is presently Vehicle and Traffic Law '1192(2), a crucial change was made. The two hour rule was lifted, in its entirety, from '1192, which now contained the common-law and per se offenses, and transferred to Vehicle and Traffic Law '1194 which, since 1959, had been the depository of implied consent.
When examining the role undertaken by the recodification of the statute, it is hard to overstate the significance of this change. Every decision which attempts to make sense of this quagmire contains, at some point, a discussion of this change. Those who assert that the rule is to be limited in scope take the position that, prior to the move, the two hour rule was an element of the offense which had to be proved in all instances where a chemical test is administered. Relocation, they argue, eliminated the rule as an item of proof. Those who foster a broad reading of the rule maintain that no change was intended by the move. In support of this conviction they note that Vehicle and Traffic Law '1192(2) provides that:
No person shall operate a motor vehicle while such person has .10 of one per centum or more by weight of alcohol in the person's blood as shown by chemical analysis of such person's blood, breath, urine or saliva, made pursuant to the provisions of section eleven hundred ninety‑four of this article.
The complex and critical nature of the debate concerning the two hour rule can be seen in the following progression. If the two hour rule is simply an arm of implied consent then it will have no bearing in cases where the defendant actually consents. This, of course, requires an analysis of the act of consent. Is simply submitting after being appropriately warned an act of implied consent? If it is, then the two hour rule should be applied in the overwhelming majority of cases. On the other hand, if the act of saying I will is deemed actual, as opposed to implied consent, then the two hour rule will be essentially relegated to those instances where the motorist is unconscious or otherwise incapable of giving consent.
People v. Atkins
Our discussion today commences with the June, 1995, holding of the Court of Appeals in People v. Atkins, (1995) 85 NY2d 1007, 630 NYS2d 965. In Atkins, the Defendant was arrested and charged with operating a motor vehicle while impaired by drugs (Vehicle and Traffic Law '1192) after he was found behind the wheel of a vehicle which had collided with a parked car. Pursuant to the brief statement of facts stipulated to at the time of the hearing, the Defendant was arrested at the scene of the accident and taken to a hospital. Within two hours of his arrest, the defendant consented to the administration of a blood test which was not administered until two hours and 28 minutes after his arrest. Upon being analyzed, the blood tested positively for the presence of phencyclidine, or PCP.
Moving to suppress, the Defendant argued that the test was administered in violation of Vehicle and Traffic Law '1194(2), inasmuch as the blood was withdrawn more than two hours after arrest. The motion was denied, and the Appellate Term, in a brief unreported decision, affirmed by finding that the two hour requirement was inapplicable because defendant had voluntarily consented to the blood test.
Affirming the Appellate Term, the Court of Appeals turned to People v. Ward, (1954) 307 NY 73. Reliance upon Ward is interesting in that Ward concerned the predecessor of Vehicle and Traffic Law '1194(2)(a) and bears a striking resemblance to the present implied consent provision.[ii] In Ward, although no statutory right yet existed, the motorist contended that the failure to advise him of the consequences of his refusal to submit to the chemical test and his right to have a test performed by a physician of his own choosing rendered his inculpatory blood alcohol test inadmissible at the time of trial. While, in the wake of cases such as People v. Finegan, it seems hard to understand why the Court failed to affirm the conviction upon the issue raised in Ward's appeal, it nonetheless chose an interesting course. Noting that the motorist voluntarily consented to submit to the test, the Court found it unnecessary to consider whether such notice or advice must be given, or the effect, if any, of a failure to give it. It was sufficient, for the Court's purpose, to decide that [the provision] has no application where, as here, the defendant voluntarily submitted to the test and there is no claim or hint of coercion. Of paramount importance in Ward was the Court's dependence upon the legislative intent in enacting the implied consent provision. According to Judge Fuld, there was no question of admissibility where the tests were given with a defendant's consent. It was the counterpoint, those situations in which the defendant may be inclined to refuse that mandated enactment of the new provision. In short, since, at the time, there apparently existed no doubt about the admissibility of a consensual test, there was ample reason and precedent for a statutory scheme distinguishing between the evidentiary effect of a voluntary and an involuntary submission.
Returning to Atkins, the court apparently concluded that since this was the statutory purpose behind the enactment of implied consent, whether the issue to be resolved was the reading of warnings or administration within two hours was immaterial. If the Defendant consented, the statute had no further bearing upon admission of the test at trial.
Two criticisms can be leveled at reliance upon Ward. First, at the time Ward was decided, the two hour limitation was yet to be placed within implied consent. As noted by Judge Simons in his dissent:
at the time of our decision in Ward, the two‑hour limit was contained in an entirely different section of the Vehicle and Traffic Law from the deemed consent provisions, and clearly did not constitute one of the statutory protections within the contemplation of that decision. Simply stated, the Ward decision dealt with the issue of coercion, not the two‑hour time limit or the probative value of the evidence. The majority, nevertheless, concludes that because the two‑hour limit and the deemed consent provisions are now included within the same section of the Vehicle and Traffic Law, the holding of Ward reaches out to embrace as well the two‑hour limit, even though that provision was not part of the statute that came before us in Ward.
Secondly, Ward's complaint was that he should have been given a non-statutory warning[iii] of the implications of implied consent, under the statute, as it presently exists. Atkins' objection was that there was non-compliance with the statute. Viewed in this fashion, there appears to be a great difference separating consent following a non-existent duty to warn and non-compliance with an explicit statutory requirement.
The Scope of Atkins
Like it or not, Atkins is here and one would be foolish to maintain that the prospects for immediate reversal are anything beyond slim and none. Thus, in this post-Atkins world we need to examine specifically what Atkins does and does not say, a task made exceedingly difficult by the terse stipulation upon which it was decided.
Without question, Atkins says that when a motorist voluntarily consents during the two hour period the test will be admissible notwithstanding the fact that the test is administered outside the statutory period. What, however is consent? More importantly, what is implied consent? Determination of this issue is essential. If the act of saying I do, following administration of the required warnings, is an act of actual consent, the two hour rule will clearly assume a position where it will be hard to imagine when application will not be limited to those who are unconscious or those who fail to respond to the inquiry, and simply step up to the machine.[iv]
While some may strenuously maintain that the two hour rule exists exclusively for the purpose of prosecuting those who are unconscious or who are otherwise unable to consent, the legislative history of the rule will not support such an interpretation. The two hour rule was first incorporated in New York's statutory scheme in 1941, three years after the National Safety Council Committee on Tests for Intoxication described a correlation between blood alcohol and the degree to which the subject would be physiologically affected. With the amendment of former ' 70(5) the legislature, for the first time, permitted admission of evidence of the amount of alcohol in the defendant's blood as shown by a medical or chemical analysis conducted of blood drawn within two hours of arrest ( L. 1941, ch. 726, ' 1). New York's first implied consent statute Vehicle and Traffic Law '71-a was enacted twelve years later and the two-hour requirement was left within '70(5). The order of these enactments is crucial. It is forcefully supportive of the conclusion reached by Judge Maltese in People v Victory, (NYLJ, August 21, 1995 p. 32, col. 4) that the two hour rule is one of probative value as opposed to a means of securing consent from those who are otherwise unable. Indeed, when one looks at the debate that surrounded enactment of the two hour rule, it is clear beyond all reproach that this was the legislative intention. As Judge Simons observed:
Because the human body rapidly metabolizes alcohol, the two‑hour requirement was enacted to ensure that the results of the blood test constituted probative evidence of the defendant's blood alcohol level at the time of operation of the vehicle (see, Brief of Assemblyman Peterson [Assembly Sponsor] in Support, Bill Jacket, L 1941, ch 726; People v Gursey, 22 NY2d 224, 229).
It therefore, is apparent that the two hour rule initially applies in all situations, conscious and unconscious, which obviously raises the issue of when I do becomes an act of voluntary consent so as to withdraw the test from the two hour rule?
Initially, as a matter of logic, voluntary consent, within the meaning of Atkins, cannot be said to have occurred in those situations where a motorist is asked to submit and his or her first response is I will. However, to say that the rule has no application in those situations, is to ignore the overwhelming legislative history, which dictates that the two hour rule has been a component of chemical testing long before the relative infrequence of those instances in which motorists chose to submit mandated the implementation of implied consent.
Although the effect of immediate agreement has not been extensively discussed, where it has, this is the conclusion which has been reached. As recognized by Judge Donati in People v. Sesman, (1987, NYC Crim) 137 Misc 2d 676, 521 NYS2d 626, the contention that an initial I will constitutes express, as opposed to implied, consent is inadvertently, misleading.
Defendant's consent is not needed . . . [the] defendant is deemed by Vehicle and Traffic Law ' 1194 to have given his consent to the test. What is more accurately to be asked of defendant by the testing officer is whether defendant is revoking that deemed consent, by his refusal to take the test (which is his right, but, whereupon, because his license to drive is issued on the condition of his deemed consent, this license will be lost by his revocation of that consent).
(Sesman at 684).
This interpretation is given additional credence in those jurisdictions which have specifically reviewed this issue (see, In State v. Plante (1980) 417 A2d 991, [implied consent gives [the motorist] the power Cthough not the rightC to refuse to perform that duty; i.e., he may, in effect, withdraw his >implied consent.]; Oregon v. Newton, (1981) 291 Ore 788, 793, 636 P2d 393 [refusal as contemplated by the statute is something other than withholding of consent because consent is legally implied. It is a refusal to comply with the consent which has already been given as a condition of a license to drive.]; Commonwealth v. Eisenhart, (1992) 531 Pa 103, 611 A2d 681 [The relationship between the implied consent provision . . . and the suspension for refusal under [the statute] is such that a driver may revoke his implied consent . . . by refusing. Moreover, appellate guidance,, albeit indirectly, seems to indicate concurrence with the Sesman proposition. Discussing the effect of the Defendant's initial refusal to submit vis a vie her ultimate agreement, the Fourth Department in People v. Osburn, (1989, 4th Dept) 155 AD2d 926, 547 NYS2d 749, found:
[a]lthough defendant's prior refusal negated any reliance upon statutory implied consent, evidence proffered at the suppression hearing supported the court's finding that defendant's consent was voluntary" (id at, 751).
Even Judge Simons' Atkins dissent provides some support on this crucial score.
Through the concept of deemed consent, whereby every person operating a motor vehicle on the State's highways was deemed to have thereby given consent to a blood test at the direction of law enforcement, all testing was effectively rendered voluntary, or at least consensual. The Legislature recognized, however, that some drivers, particularly when their faculties were impaired by alcohol, might physically resist the taking of a blood sample. * * * In order to obviate the need for physical force, the deemed consent amendment provides the driver with an opportunity to affirmatively withdraw that consent, upon being informed of the consequences of that withdrawal . . .
Our conclusion, therefore, is that Atkins applies only in the event that the motorist initially revokes his or her implied consent within two hours and thereafter affirmatively agrees to submit to the test.
Consent Occurring Outside Two Hours
The balance of this article will deal with situations falling outside the fact pattern set forth in Atkins. Foremost of those questions left unanswered by the Atkins decision, is where the consent initially occurs outside the two hour limitation established by Vehicle and Traffic Law '1194.
When consent is obtained more than two hours after arrest, two issues immediately surface. The first concerns the voluntariness of the test and the second is the evidentiary value ascribed to the results in the event that it is admitted.
When one looks to the voluntariness of the consent which occurs more than two hours following arrest, it is virtually impossible to escape the role played by the warnings mandated in Vehicle and Traffic Law '1194(2)(b). To the extent that one may attempt to argue that Atkins nonetheless controls, it should be made clear that in deciding Atkins upon the stipulation, the Court found that the issues of voluntariness was not preserved. Discussed extensively in Volume 2, issue 14, suffice it for our purposes today to say that if the so-called refusal warnings are given more than two hours following arrest, any consent flowing therefrom will clearly be tainted. It should be noted at this stage, however, that despite the commonly held belief that refusal warnings must be given, this is not so (see, People v. Sidorov, (Crim Ct Kings Co) NYLJ, August 1, 1995, at 28, col 6) . These warnings merely form the basis for revocation and admission of the refusal at the time of trial. When the motorist agrees to submit following a bare request made more than two hours following arrest, no claim may be made that the results are inadmissible as a result of the failure to warn.
Merely addressing consent, however, may not be entirely dispositive. There remains the issue of the rules and regulations of the Department of Health. 10 NYCRR '59.5 sets forth that:
A breath sample shall be collected at the direction and satisfaction of a police officer within two hours of the time of arrest or within two hours of a positive breath alcohol screening test. Such samples shall be analyzed with instruments meeting the criteria set forth in section 59.4 of this Part.
The statutory authority for this regulation is Vehicle and Traffic Law '1194(2)(e). This section sets forth:
The commissioner shall promulgate such rules and regulations as may be necessary to effectuate the provisions of subdivisions one and two of this section.
Broadly read, It would seem that the import of these provisions would be to render any test conducted outside the two hour period immediately following an arrest inadmissible. When one looks closer, however, this provision falls into the identical interpretive quagmire which has engulfed its statutory progenitor. Essential to an understanding of the role this regulation plays on instances where voluntary consent is given more than two hours following arrest is the legislative limitation to effectuate the provisions of subdivisions one and two of this section. Thus, any attempt to determine whether or not this administrative regulation has bearing upon a chemical test voluntarily given outside the two hour limitation draws resolution back to consideration of the purpose behind subdivision two. In other words, if subdivision two exists solely to create implied consent, the regulation would be similarly limited. Recognizing that, in Atkins, subdivision two was found to play no role when the defendant voluntarily consents, statutory construction seems to dictate that '59.5 is inapplicable as well.
In light of Atkins, it appears that when the motorist voluntarily consents to a chemical test outside the two hour limitation, there exists no per se bar to preclude admission. Such a conclusion is in apparent conformity with prior holdings of the Court of Appeals. As noted by Judge Maltese in Victory:
In People v. Moselle, 57 NY2d 97, 454 NYS2d 292, the Court of Appeals held that absent a manifestation of a defendant's consent thereto, a blood sample taken without a court order other than in conformity with the provisions [of the VTL section 1194] are inadmissible in prosecutions for operating a motor vehicle while under the influence of alcohol under section 1192 of that law.
The caveat, of course is consent. As we noted in Volume Two, Issue 14, we wholeheartedly concur with the decision of Judge Duckman in People v. Bezer, (1991, Crim Ct Bronx Co) NYLJ November 8, 1991 at 25, col 3, that consent which is based upon a set of commissioner's warnings which have become inaccurate because of the passage of more than two hours is invalid. Consent in such is situation is inescapably colored by the fact that by agreeing to take the breathalyzer test . . . [the Defendant] was doing so only because he was threatened with having his refusal admitted in a criminal prosecution, something which the statute did not specifically allow. Consequently, when the motorist is read the statutory warnings outside the two hour limitation and consent is given, our view is that such consent is not freely nor voluntarily given (see, People v Gonzalez, (1976) 39 NY2d 122, 128, 383 NYS2d 215).
Probative Value of Tests Beyond the Two Hour Limit
Admission alone is not fully dispositive of the rule. Recognizing that, under Atkins, a fair number of tests performed outside the two hour rule will be admitted at trial, it is necessary to determine the weight to be ascribed to such tests.
As observed in People v. Victory, supra, the legislative history of the two hour rule is strongly supportive of the conclusion that there exists a legislative determination, founded upon the original 1938 Safety Council monograph that a test taken within two hours is sufficiently reliable to warrant admission in a criminal trial. When, however, the test leaves the statutory safe harborof two hours it becomes nothing more than another scientific test. As such, it is subject to the mandates of the Frye/Leone analysis which requires a showing that the procedure is both reasonably accurate and generally of scientific acceptance (People v. Leone (1969) 25 NY 2d 511, 307 NYS2d 430; see also, People v. Middleton (1981) 54 NY2d 42, 444 NYS2d 581). Therefore, to warrant admission of a chemical test conducted outside of the two hour rule requires that the proponent of the test employ the principle of reverse extrapolation. The difficulty here is that, when one attempts to use a test to demonstrate a specific blood alcohol content which purportedly existed at an earlier point in time, he or she deals with at least three variables, time, absorption and metabolization.
The first, of course, is a guess at best. Arrestees are seldom frank with counsel on the issue of how much they consumed let alone the time. Any effort to ascertain those points in time at which an arrestee consumed particular beverages is generally a hopeless endeavor bordering on pure speculation. It seems virtually inconceivable that the prosecutor will be possessed of sufficient information on this point to base a valid opinion. The importance of time cannot be understated. As noted by Jones,[v] the time period which immediately follows ingestion is accompanied by a dramatic and uniformly low blood/breath partition ratio. A low partition ratio would produce a Breathalyzer7 result consistently high during this interval. This disparity has likewise been observed by Boaz and Ruby who further note that it requires between one to two and one-half hours for all the alcohol to be distributed and to arrive at equilibrium with the total volume of body fluid.[vi] During this absorptive phase Jones observed variations in the blood/breath partition ratio in a range of 990:1-2280:1. As noted by Jones, Jönsson and Neri:
To provide an expert opinion about the status of ethanol absorption in a drunk driver, that is, whether the BEC is rising on a plateau or falling at the time of testing, forensic scientists must have accurate information about the preceding drinking spree, such as the volume and kinds of beverages consumed, single or divided doses, and the intake of food before, after, or during the consumption of ethanol.[vii]
Absorption presents similar difficulties. Since alcohol cannot be metabolized until it has been absorbed, even what some believe is a relatively stable rate of metabolization will not become operative until some undetermined point in time. Previously reviewed in Volume One, Issue 12, let it suffice for our purposes today, that dependant as it is upon food and other physiological factors, the period required for absorption can be as brief as fifteen minutes or as long as an hour and a half.
Even the accepted rate of metabolism is not without it's critics. While many assume that the human body eliminates alcohol at a constant and universal rate, Wagner, et. al.,[viii] have found concentration to assume a dispositive role. This led them to conclude that 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.
The upshot of this is too powerful to be ignored. As concluded by Judge Maltese in People v. Victory:
The two hour rule actually benefits the prosecution in that it creates a presumption that the BAC test results are admissible. Absent such a rule the prosecutor would need to establish by expert testimony the scientific relevancy of the test in every drunk driving prosecution. Since the Court of Appeals in Atkins will allow evidence of a BAC test taken more than two hours from arrest to be presented in a trial, the People lose their presumption of the scientific reliability beyond two hours from arrest and must now establish same at a pre‑trial hearing.
In People v. Carpaella, (1995, Queens County) NYLJ, August 1, 1995, p. 29, col. 3, Judge Grosso posed several well reasoned rhetorical questions pertaining to application of the two hour rule in a post-Atkins world. Recognizing the importance of these issues to the practitioner and trial level courts, we will make our best effort to predict how each should be resolved.
Should a motorist's license be suspended pending prosecution when the test is administered outside the two hour rule?
We believe not. Vehicle and Traffic Law '1193(2)(e)(7) is quite specific in directing that the suspension shall occur when the motorist is alleged to have had .10 of one percent or more by weight of alcohol in such driver's blood as shown by chemical analysis of blood, breath, urine or saliva, made pursuant to subdivision two or three of section eleven hundred ninety‑four of this article. Since subdivision two clearly incorporates the two hour rule, it is our opinion that compliance with this provision must be proven before permitting the ensuing suspension.
With respect to sufficiency of misdemeanor pleadings, must express consent be plead in a Vehicle and Traffic Law '1192(2) count where chemical test was administered beyond two hours of arrest?
We believe that the answer to this one is no. To hold otherwise would be to subscribe to the theory that the two hour rule is an element of the '1192(2) prosecution. Since it is now possible to maintain the prosecution without two hour compliance, the rule seems to clearly be one of proof, not of pleading.
Are the statutory presumptions created by Vehicle and Traffic Law '1195 valid in the face of proof that the test was taken outside the two hour limit?
This is more problematic. There must be shown a rational connection between the facts which are proved and the one which is to be inferred with the aid of the presumption People v. Leyva (1975) 38 NY2d 160, 379 NYS2d 30. Expressed differently, it is a rational connection to a high degree of probability between the presumed fact and the given evidence (Tot v. United States (1943) 319 US 463, 87 L Ed2d 1519). Can one say, beyond a reasonable doubt (see, Ulster County Court v Allen, (1979) 442 US 140, 156, 60 L Ed2d 777, 791) given the low BAC's dealt with in the statutory presumptions, that conclusions reached based upon the test are still valid? Perhaps not.
Will a refusal, which transpires outside the two hour limitation, still be admissible at trial? It should not be, but the answer is far from simple. Initially, if one sees the refusal which is made admissible by the provisions of Vehicle and Traffic Law '1194 as linked to implied consent, Brol survives (although its rationale does not) and the refusal will be inadmissible. This interpretation is consistent with Sesman, supra. If the initial response I will is not consent but an expression of willingness not to revoke one's implied consent, the antithesis, I won't constitutes the revocation of implied consent which is made admissible solely by statute. Perhaps the strongest justification for this interpretation is the placement of subparagraph (f), the provision which renders the refusal admissible. The legislature has chosen to place it within '1194(2), the impled consent provision. In this regard it is no different than the monetary and licensing sanctions which are similarly set out within that subdivision. If one refuses outside two hours, it is not a revocation of implied consent and should not be received.
What is the standard to be applied in resolving whether or not the motorist has expressly and voluntarily consented?
Judge Grosso's final query was previously discussed in Volume Two, Issue 14 so we will be brief. Basically as with any issue of consent, determination will require the trial court to ascertain whether it was a free and unconstrained choice (People v Slater, (1990, 3rd Dept) 166 AD2d 828, 562 NYS2d 985) and the prosecution bears, what has been characterized, a heavy burden of proving (see, People v. Kuhn, (1973) 33 NY2d 203, 351 NYS2d 649).
[i].While it can be argued that present Vehicle and Traffic Law '1192(2) does not contain all that is required of a true per se statute (see, Fiandach, New York Driving While Intoxicated, '2:20), for our purposes today we will refer to '1192(2) as the per se offense.
[ii].In Ward, section 71‑a of the Vehicle and Traffic Law (as added by L. 1953, ch. 854) provided, in part:
1. Any person who operates a motor vehicle * * * in this state shall be deemed to have given his consent to a chemical test of his breath, blood, urine, or saliva for the purpose of determining the alcoholic content of his blood provided that such test is administered at the direction of a police officer having reasonable grounds to suspect such person of driving in an intoxicated condition. If such person refuses to submit to such chemical test the test shall not be given but the commissioner shall revoke his license * * * to drive * * *
[iii].At the time Ward was decided, there was no statutory obligation on the part of the authorities to advise a motorist of the ramifications of failing to submit. That requirement was added while Ward was pending (L. 1954, ch. 320).
[iv].Not to be forgotten, of course, is that by failing to provide a response to the request the motorist will probably be deemed to have refused (see, McGuirk v. Fisher, (1976, 3d Dept) 55 AD2d 706, 389 NYS2d 47).
[v].A. W. Jones, The Variability of the Blood:Breath Alcohol Ratio in Vivo, 39 J. of St. on Alcohol 11, at 1931-1939 .
[vi].See, Fisher, R.S., et al, Editors, Alcohol and the Impaired Driver/American Medical Assn.  p. 15; see also, Annual Report of Subcommittee on Legal Matters, Committee on Alcohol and Drugs National Safety Counsel [October 28, 1971] p. 4; Payne, J.P., et al, B.R. Med. J. 1  p. 196-202.
[vii].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.
[viii].Wagner, Wilkinson, Sedman, Kay, Weider, Elimination of Alcohol From Human Blood, Journal of Pharmaceutical Sciences, vol. 65., no. 1.
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