PATTON v. CITY OF DECATUR

ALMON, Justice.

Petitioner, Howard D. Patton, was convicted in the Recorder's Court of the City of Decatur of driving while intoxicated in violation of a city ordinance. He appealed de novo to the circuit court and from an unfavorable jury verdict there, sought review in the Court of Criminal Appeals. The Court of Criminal Appeals affirmed his conviction.

We review only the question of whether the admission into evidence of the result of a test, conducted on a photoelectric intoximeter showing .18% by weight of alcohol in petitioner's blood, was contrary to the Alabama Chemical Test for Intoxication Act. Tit. 36, §§ 154-158, Code of Alabama 1940, Recompiled 1958.

Petitioner asserts that the instant decision of the Court of Criminal Appeals conflicts with that court's prior decision in Myrick v. City of Montgomery, 54 Ala.App. 5, 304 So.2d 247 (1974), cert. denied 293 Ala. 768, 304 So.2d 248 (1974).

We agree and reverse.

Tit. 36, § 155(a) provides inter alia that "tests authorized by this chapter. . . shall be admissible as evidence . . .." (Emphasis supplied). Tit. 36, § 155(b), states:

Thus, the legislature clearly provided that for such test (here, the photoelectric intoximeter or P.E.I.) to be admissible in evidence, it must "have been performed according to methods approved by the state board of health." Such is a condition precedent to its admissibility. A proper predicate is therefore necessary.

Section 155(b) is almost identical to Sec. 11-902(c) of the uniform Vehicle Code. Donigan in his text, Chemical Tests and the Law (2nd ed. 1966), p. 64, states:

See State v. Powell, 264 N.C. 73, 140 S.E.2d 705 (1965).

In Myrick, supra, the court held the validity of such tests are conditioned on the performance being under methods approved by the State Board of Health. The court also observed, "Since this section making the analysis admissible is contrary to Common Law it must, particularly in a criminal case, be strictly construed." Ibid, at 6, 304 So.2d at 248.

In the instant case the Court of Criminal Appeals reasoned as follows:

. . . . . .

For a better understanding we have gone to the record:

Later, the testimony continued as set out below:

"A. Yes, sir there is a certain procedure that we follow sure [sic] we are getting an accurate reading. This procedure is outlined on a card, operators card which we follow, exactly and check off as we follow it.

Nowhere is it shown that duly adopted methods or regulations of the State Board of Health were followed in administering the test. The trial court therefore had before it no certified methods promulgated by the Board of Health for the administration of the test and consequently was unable to ascertain standards against which the evidence could be measured.

While it is unnecessary for the prosecution to resort to the P.E.I. test in order to make a prima facie case [Broxton v. State, 27 Ala.App. 298, 171 So. 390 (1936); McMurry v. State, 28 Ala.App. 253, 184 So. 42 (1938)], the results of the test, which we hold were inadmissible, were highly prejudicial.

Our decision in the instant case does not stand for a proposition that every legislative delegation of power gives rise to a mandatory duty to promulgate administrative standards in order for that power to be validly exercised. But our inability here to ascertain the validity of the results obtained from a technologically sophisticated device due to questionable operator technique, demonstrates the absolute necessity for written procedural methods governing its use. In this regard, unwritten standards of the Board of Health are no better than no standards at all. See Sun Ray Drive-In Dairy, Inc. v. Oregon Liquor Control Comm., 16 Or.App. 63, 517 P.2d 289 (1973). The need for written standards becomes particularly acute where, as here, a finding of criminal conduct may well turn upon adherence to and rigid compliance with such standards.

Our decision, moreover, is not to be construed as a rejection of results of the photoelectric Intoximeter when introduced as evidence against persons charged with driving while under the influence of intoxicating liquor. Although intoxication levels obtained from the P.E.I. and similar blood alcohol content measuring devices have been fraught with evidentiary challenges as to their probative value in criminal proceedings; see State v. Bessette, 130 Vt. 438, 296 A.2d 179 (1972); we have been willing to accept these results and statutory presumptions which attach therefrom where the record is devoid of matters which substantially draw into doubt their accuracy. Rivers v. Black, 259 Ala. 528, 68 So.2d 2 (1953); Bonner v. State, 52 Ala.App. 346, 292 So.2d 460 (1974). Furthermore, the legislature has declared that the results of P.E.I. tests "shall be admissible as evidence." Tit. 36, § 155(a), supra. Accordingly, in passing on a conviction which was based in part on the results of a P.E.I. test, the only concern of this court is to ascertain whether the will of the legislature has been obeyed.1 We hold that an affirmative response to that inquiry cannot follow where there are no written standards governing the manner in which P.E.I. tests are to be performed by state law enforcement agencies.

It would be a simple matter to profer a duly certified and authenticated copy of methods or regulations duly adopted or approved by the State Board of Health. When such copy is admitted in evidence, then the proponent could ask the witness predicatory questions.

The judgment of the Court of Criminal Appeals is reversed and the cause is remanded.

REVERSED AND REMANDED.

HEFLIN, C. J., and BLOODWORTH, MADDOX, FAULKNER, JONES, SHORES, and BEATTY, JJ., concur.