ALSBTALK:
Having drafted such a statute my read is or, or, or.
While (a) and (c) are very similar they also are very different with respect to proof. Direct scientific evidence via blood test or breath test is what (a) addresses. The focus of (c) is via a different form of proof. For example, (c) could use an off-duty bartenders testimony of having witnessed the driver consume 6 beers in 50 minutes and an admitting nurse who received the driver's refusal to take the blood test that the driver's weight was 200 pounds, and the the county medical examiner testifies on the calculation of blood alcohol levels with that data. The subsections (a) and (c) use blood level, while (b) uses observation of behavior to all three reach the same conclusion: impaired.
Michael
Professor Michael J. O'Hara, JD., Ph.D.
Mammel Hall 228
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University of Nebraska at Omaha
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________________________________________
From: Academy of Legal Studies in Business (ALSB) Talk [[log in to unmask]] on behalf of Keith A Maxwell [[log in to unmask]]
Sent: Tuesday, November 19, 2013 5:16 PM
To: [log in to unmask]
Subject: Statutory Interpretation (And v. Or)
In the following criminal statute (used by a student in a presentation), there is neither a conjunctive or disjunctive used between (a) and (b), but the disjunctive is used between (b) and (c). The question is whether the statute should be read (a) AND (b) OR (c), or (a) OR (b) OR (c)? The student insists that is should be the former, but I disagree. I have always followed the canon that if not explicitly one or the other "and" is implied.
Any insights? Thanks. Keith
DRIVING UNDER THE INFLUENCE
A person may not operate or be in actual physical control of a vehicle within
this state if:
(a) a subsequent chemical test shows that the person has a blood or breath alcohol concentration of .08 grams or greater at the time of the test;
(b) is under the influence of alcohol, any drug, or the combined influence of
alcohol and any drug to a degree that renders the person incapable of safely operating
a vehicle;
OR
(c) has a blood or breath alcohol concentration of .08 grams or greater at the
time of operation or actual physical control.
Keith A. Maxwell, J.D.
Professor Emeritus of Legal Studies and Ethics in Business
Nat S. and Marian W. Rogers Professor (Emeritus)
University of Puget Sound
Tacoma, WA
http://www2.ups.edu/faculty/maxwell/home.htm (archived)
Adjunct Professor of Business Law
Dixie State College
Saint George, UT
https://www.dixie.edu/business/maxwell.php
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