Monday, February 14, 2011

DUI Appeal of the Day (DAD) - Destruction of Blood Sample, In-Court Identification and Due Process

In Iowa v. Kardell, Slip Copy, 2011 WL 441961 (Table) (Iowa App.) the defendant was convicted of two counts of homicide by vehicle by operation while intoxicated. Amongst other issues on appeal, NCDD member and Iowa OWI attorney Matt Lindholm complained that the destruction of the blood sample violated the defendant's due process rights. In the case, the blood was analyzed and the result was 0.07 BAC. Notice of the result was not sent to the defense until after the blood sample was routinely destroyed (Iowa has a 90 day retention and destruction policy). The defendant claimed that the destruction a) violated state laws regarding the safekeeping of personal property b) interfered with his statutory right to independent testing and c) violated his due process rights under both the federal and state constitutions. The defense was unsuccessful on all 3 grounds.

Specifically, the court held that the argument that state law on disposition of personal property required him to receive notice prior to destruction was not capable of being raised for the first time on appeal, so they refused to address it. (This was a clever and great argument by the defense!) Second, they held that the right to an independent test was not violated by the destruction of the sample before notice was given to the defendant, holding that section 321J.11 does not impose a sua sponte duty to provide the defendant with the test results; rather, the only statutory duty is to provide the results upon Kardell's request.

Finally, regarding the due process claim, the court stated:

The Youngblood court was unwilling to “read the ‘fundamental fairness' “ due process requirement to impose on the State an “absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution.” Id. at 58, 109 S.Ct. at 337, 102 L.Ed.2d at 289. Accordingly, “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Id. (emphasis added). The Iowa Supreme Court adopted this standard in State v. Dulaney, 493 N.W.2d 787, 791 (Iowa 1992), a drunk driving case in which the defendant sought to suppress test results from a blood withdrawal.Like Kardell, the Dulaney defendant argued the State violated his United States and Iowa due process rights by destroying his blood sample before he was able to have it independently tested. Dulaney, 493 N.W.2d at 790. The Dulaney court discussed and applied the standards established in Trombetta and Youngblood. Id. at 790-91. The Dulaney court specifically recognized the requirement a criminal defendant show bad faith on the part of the State and found “there is no evidence the State intentionally destroyed the sample in an effort to deprive Dulaney of evidence as required by Trombetta and Youngblood. The DCI lab simply destroyed the sample pursuant to its usual procedure....” Id. at 791. The court ruled: “[T]he State's blood sample merely could have been subjected to tests, and the results merely might have exonerated Dulaney. This is not enough under Trombetta and Youngblood to find a violation of Dulaney's due process rights.” Id. Similarly, Kardell's blood sample “merely could have been subjected to tests” with results that “merely might have exonerated” Kardell. See id. This is not enough to find a violation of Kardell's due process rights. See id.; see also State v. Steadman, 350 N.W.2d 172, 175 (Iowa 1984) (stating “the failure of the State to automatically furnish an accused with a sample ... for independent testing is not a denial of due process”).

The defendant also raised claims involving identification of the defendant as the driver in open court. The defendant argued that the court should have granted his motion for judgment of acquittal because there was insufficient evidence “to provide a sufficient nexus between the person who was driving the vehicle and the person who was charged in the trial information.” Kardell contended that the arresting officer's positive identification of Kardell on direct exam was “rendered useless” on cross-examination because he admitted his identification was based upon the on-scene statements of Trooper Pigsley and Trooper Pigsley did not testify at trial. Among the reasons why the court found sufficient identity had been proven, the court said:

While “proof of the identity of the person who committed the offense is essential to a conviction ... identification may be established and inferred from all of the facts and circumstances in evidence.” Butler v. U.S., 317 F.2d 249, 254 (8th Cir.1963) (citations omitted). * * * “[T]he failure of any ... witnesses to point out that the wrong man had been brought to trial [can be] eloquent and sufficient proof of identity.” Id. (quoting United States v. Weed, 689 F.2d 752, 755 (7th Cir.1982))* * * [P]roper identity can be inferred when the defendant does not complain the wrong person has been brought to trial. See Butler v. United States, 317 F.2d 249, 254 (8th Cir.1963). The Derek Kardell seated in the courtroom never complained he was not the same Derek Kardell whose truck crashed in October 2007."

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