Monday, May 16, 2011

DUI Appeal - Fla. Bad Blood Sample Leads to Inneffective Lawyer Claim

In Goldman v. State of Florida, --- So.3d ----, 2011 WL 1135263 (Fla.App. 4 Dist.) following conviction, the defendant alleged her trial attorney provided ineffective assistance by failing to retain a toxicologist to challenge the blood alcohol analysis. Regarding the blood samples, there was a gap in time on the property receipt of 31 to 43 hours FN1 between the blood draw and the time the property receipt indicates the samples were placed in refrigeration. There was also a discrepancy between the property receipt and testimony at trial regarding who the officer turned the blood samples over to. One sample had clotted and was not usable. The other sample indicated a blood alcohol content (BAC) of 0.20. The state's expert testified that a person with this blood alcohol level would exhibit confusion, staggering, impaired cognitive function and slurred speech. Goldman did not exhibit these signs. Officers noticed a faint odor of alcohol and she appeared upset.

The motion alleged that Goldman has now retained a toxicologist who would testify that improper handling of the blood samples, such as storing at high temperatures, can result in a higher BAC reading. Goldman argued that trial counsel should have presented expert testimony to refute that Goldman was intoxicated at the time of the accident. Because defense counsel failed to call a toxicologist, Goldman was unable to present to the jury scientific evidence about what happens if blood samples are not properly refrigerated. Goldman believes she could have successfully challenged the BAC evidence, and as a result, the state would have to prove intoxication through the officers' testimony.

Only the Westlaw citation is currently available.

The appeals court commented:

"If defense counsel never consulted a toxicologist and Goldman did not know that there was a basis to challenge the blood results, the waiver of her right to present evidence was not knowing and voluntary. Even assuming defense counsel had investigated this issue, the failure to present evidence that could explain why the BAC results could be wrong where Goldman otherwise had no good defense was not a reasonable strategy."

Continuing, the appeals court noted that the evidence regarding the blood test inaccuracy were many:

"Goldman has pointed to a number of factors that would support her belief that the blood may have been mishandled and the test results were inaccurate including her behavior at the scene, the inability to collect a full vial of blood (a sign of loss of vacuum in the tube, which could lead to contamination of the sample), the time that elapsed between collection and delivery to the property room, and the clotting of the blood in one tube, which could indicate mishandling. Goldman's handwriting at the scene was inconsistent with a person having a blood alcohol level nearly three times the legal limit. In her statement to police she indicated that she wanted a blood test because it would prove she had only three beers. The state's expert testified that a person Goldman's size would have to drink six and a half beers to have a 0.20 BAC. Goldman was detained for five hours and made no request to use a restroom.

There are sufficient reasons apparent from the record to question the BAC results. Goldman showed a reasonable probability the outcome would have been different if the jury had received expert testimony about how temperature, contamination from the loss of vacuum in the tube, and other mishandling could increase the amount of alcohol in the sample. This testimony could reconcile the conflicting evidence and create a reasonable doubt about whether Goldman's blood alcohol level exceeded the legal limit. This was the state's main evidence of intoxication. The other signs of impairment were consistent with non-impairment."

In an additional claim, it was alleged that trial counsel was ineffective in failing to investigate the chain of evidence issue. "[I]nvestigation of the handling and storage of the blood samples could have explained the seemingly anomalous test results" stated the appeals court.

Concluding that the post-conviction petition alleged enough to require a hearing, the appeals court concluded:

"Several of Goldman's claims indicate that counsel may have relied on an unavailable defense and misled the jury about evidence the defense would present. Goldman may not have satisfied the prejudice prong of StricklandFN2 in each of these claims individually. However, taken together in light of the legally sufficient claims of ineffective assistance of counsel in grounds six and seven, we cannot say that Goldman was not prejudiced by cumulative errors in this case."

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