Appeals from the Superior Court of the District of Columbia; Hon. Evelyn E.C. Queen, Hon. Cheryl M. Long, Hon. Robert S. Tignor, Trial Judges
Newman, Belson, and Farrell, Associate Judges.
The opinion of the court was delivered by: Farrell
These consolidated appeals present the common question whether, in a prosecution for the per se offense of driving while intoxicated, D.C. Code § 40-716(b)(1) (1990), the government must present expert testimony "extrapolating" or relating the results of a blood alcohol test administered after the accused's arrest to his blood alcohol level at the time of operation of the vehicle. We answer that question in the negative and affirm the convictions.
As this court has explained before, Washington v. District of Columbia, 538 A.2d 1151 (D.C. 1988), there are "two distinct ways" in which a person can violate D.C. Code § 40-716(b)(1). The one, with which each appellant was charged here, is "the so-called 'per se' offense of driving 'while intoxicated,'" which requires the District "to prove only that the person was operating a vehicle in the District of Columbia while the person's blood contained .10 percent or more alcohol (or while the person's urine contained .13 percent or more alcohol)." Id. at 1156. By contrast, the second offense, driving "under the influence," "can rest on an accumulation of evidence other than a test result showing .10 percent blood alcohol content . . . ." Id. Blood alcohol content may be proved by the results of a blood, urine, or breath test performed on equipment that has been checked for accuracy as required by the statute. Id.; D.C. Code §§ 40-716(b)(1), -717.2.
Appellant Ransford was arrested while seated in the driver's seat of a car that had been involved in an accident.
Breath tests were administered to him at a police station approximately 50 and 86 minutes after his arrest; the first test yielded a blood alcohol reading of .21 percent, the second a reading of .20 percent. Appellant Fox was arrested after he was stopped for obstructing traffic. At the police station he submitted to breath tests 35 and 64 minutes after his arrest, resulting in blood alcohol readings of .13 percent and .15 percent, respectively. Appellant Alexander was arrested for traffic violations and taken to a police station where, 64 and 69 minutes after his arrest, breath tests were administered which showed a blood alcohol content of .125 percent and .121 percent, respectively. Appellant Williams was arrested for speeding and driving while intoxicated, and taken to a police station where breath tests were administered 42 and 72 minutes after his arrest, yielding a blood alcohol content of .13 percent each time.
At trial in each case, a copy of the chemical test certification form was admitted into evidence; in none of the cases did the government offer expert evidence extrapolating from the breath test results to the defendant's blood alcohol content at the time of driving. In each case the trial Judge rejected the claim that such evidence was necessary for conviction, and found the defendant guilty as charged. On appeal, each appellant contends that expert "relation back" evidence is required as a matter of law by the statutory conjunction of a prohibited blood alcohol level and the actual operation of a motor vehicle.
Section 40-716(b)(1) prohibits an individual from operating (or being in physical control of) a vehicle "when the individual's blood contains .10 percent or more. . . of alcohol" (emphasis added). Thus, to establish the offense, the government must prove that the person had the required blood alcohol content while operating or in control of the vehicle. To recognize this, however, is not to say that the government must offer results of chemical tests administered "when" the person was driving -- an obvious impossibility. We have already rejected one interpretation of § 40-716(b)(1) that would produce an "absurd result." Williams v. District of Columbia, 558 A.2d 344, 345 (D.C. 1989) (per se offense does not require proof that breath test used sample of 2,000 cubic centimeters of breath, despite statutory reference to "equivalent quantity [10 percent or more of alcohol] . . . contained in at least 2,000 cubic centimeters of . . . breath"). Requiring measurement of the blood alcohol level at the precise time of driving would be equally absurd. See State v. Taylor, 132 N.H. 314, , 566 A.2d 172, 174 (1989); State v. Tischio, 107 N.J. 504, 527 A.2d 388, 390-91 (1987), appeal dismissed, 484 U.S. 1038, 108 S. Ct. 768, 98 L. Ed. 2d 855 (1988). *fn1 Thus, proof of a driver's blood alcohol content while driving necessarily must embrace evidence of the results of chemical tests administered some time after the person was stopped.
Appellants do not seriously dispute this Conclusion, but argue that if exact contemporaneous proof is impossible, the statute at least requires evidence linking (or relating back) the test results to the driver's blood alcohol content at the time he was stopped. Moreover, citing Desmond v. Superior Court, 161 Ariz. 522, 779 P.2d 1261 (1989), which construed a similar Arizona statute, they contend that "relating the [blood alcohol content] back to the time of arrest will most often require testimony by someone qualified as an expert." Id. at , 779 P.2d at 1267. This is so, appellants argue, because of the recognized "blood alcohol curve" which admits of the possibility that a driver, having just recently consumed alcohol, did not reach the prohibited .10 percent blood alcohol level until some time after he stopped driving.
The government responds that, in effect, this court already has rejected a requirement of extrapolation evidence. It points to Washington v. District of Columbia, supra, in which -- as in the instant cases -- the government "addressed its proof to the 'per se' violation," 538 A.2d at 1154 n.3, adducing evidence that the driver was tested twice for blood alcohol content 75 minutes after his arrest and again 34 minutes later, resulting in blood alcohol readings of .13 and .11 percent. In upholding the conviction, the court observed simply: "The two breath tests administered to appellant indicated that his blood alcohol level at the time he was driving exceeded .10 percent." Id. at 1152. See also Williams v. District of Columbia, supra (affirming conviction for per se offense based on breath test scores administered at police station); Bungardeanu v. England, 219 A.2d 104, 109 (D.C. 1966) (holding that urine specimen "was given in close enough proximity to the events in question to provide an accurate indication of the alcohol in petitioner's system at that time"). In none of these cases, apparently, did the government present expert testimony relating the test results to the driver's blood alcohol level at the time of operation.
Nevertheless, because the issue of expert testimony on extrapolation does not appear to have been raised in those cases, we shall treat the issue as one of first impression in this jurisdiction. We have no difficulty in rejecting appellants' argument as inconsistent with the intent of the legislature in enacting the per se offense.
As the government points out, since 1958 Congress and the Council of the District of Columbia have progressively strengthened the District's drunk driving laws and eased the burden of prosecuting such offenses by means of presumptions derived from the results of blood alcohol tests. In 1958, Congress enacted the first such presumptions. Pub. L. No. 85-338, §§ 1, 2, D.C. Code § 40-609a (1961 ed.). The law provided that in a drunk driving case, "competent proof" that "at the time" the defendant was driving his blood alcohol was .05 percent or less constituted prima facie proof that the defendant was not under the influence of alcohol; a score of greater than .05 percent but less than .15 percent was deemed "relevant evidence" but not " prima facie proof that the defendant was or was not. . . under the influence"; and a score of .15 ...