DUI Law - Illinois Suppresses Blood Test Without Preservatives

In People v. Hall, --- N.E.2d ----, 2011 IL App (2d) 100,262, 2011 WL 6175606 (Ill.App. 2 Dist.), the defendant (who happens to be a county judge) was arrested for DUI by a police officer named Goldsmith (who is now deceased). During the course of the arrest, the arresting officer, Officer Goldsmith of the Vernon Hills police department, sprayed defendant with pepper spray and pulled defendant from his vehicle. A rescue squad was called to the scene, and emergency medical technicians tended to defendant for about 25 minutes. Defendant was then taken to Condell Medical Center for treatment of his left eye, which had taken the brunt of the pepper spray. While at the hospital, defendant was hooked up to an electrocardiogram, which detected a rapid heart rate. Before defendant was moved from the emergency room and admitted to the hospital, Goldsmith told him to come to the police station to pick up his citations after he was released. Goldsmith then left, and defendant was moved to a hospital room, where, eventually, several vials of his blood were drawn to be tested for heart-related issues. The following afternoon, defendant was released from the hospital and he picked up his citations at the police station.

The Illinois Attorney General took over the prosecution of this case, as the Lake County State's Attorney determined that his office had a conflict of interest.FN1 An assistant Attorney General, with the help of an assistant State's Attorney, learned that several vials of defendant's blood still remained at Condell. On May 14, 2008, the trial court ordered Condell to release the blood samples to the Vernon Hills police department for transportation to the Illinois State Police (ISP) crime lab for testing. FN2 An ISP technician tested the blood for alcohol concentration on May 15 and reported a blood alcohol concentration (BAC) of 0.107. This information was tendered to defendant on June 11, but the test results remained sealed under court order.

Jennifer Poltorak, a toxicologist at the ISP crime lab with bachelor's degrees in chemistry and forensic science, testified that she received three tubes of defendant's blood for testing, including one tube with a purple stopper. She tested two samples from the purple-topped tube, using a head space gas chromatograph; the average result revealed “an ethanol level of 0.107 grams per deciliter.” Poltorak testified that the ethanol reading would not have been affected by the presence of methanol in the blood sample. She also testified that it was not unusual to perform a BAC test on a blood sample that was 18 or 19 days old. Defendant's only witness, James O'Donnell, was a pharmacist and professor with bachelor's and doctorate degrees in pharmacy and a master's degree in nutrition. Testifying as an expert in pharmacology, O'Donnell opined that the tubes of defendant's blood were tainted because of a lack of determination of proper storage and the “significant probability” that microbial growth in blood untreated with preservative would lead to the synthesis of alcohol in the samples and would cause a “false positive” reading. Preservatives do not completely kill such bacteria but limit their growth.

Illinois administrative regulations state:

"Officers shall use DUI kits provided by the Department, if possible. If kits are not available, officers may submit two standard grey top vacuum tubes. (Pursuant to generally accepted industry standards, grey top vacuum tubes contain an anticoagulant and preservative.)"

On appeal, the court found that the failure to comply with this regulation (in that a purple-topper indicates a lack of preservative in violation of the rgulation) rendered the result inadmissible.

Additionally, the state argued that they should only have to 'substantially comply, rather than 'strictly comply' with the regulations.

In rejecting that position, the appeals court stated:

"Here, while there was evidence that the purple-topped tube from which the blood was taken for the BAC test contained an anticoagulant, there is no evidence that the tube contained the required preservative. There was 50% compliance with the requirement that the tube contain both an anticoagulant and preservative; however, there was zero compliance with the requirement that the tube contain a preservative. This is a failure to comply, not “substantial” compliance."

The appeals court also explained when a regulation requires substantial compliance or strict compliance. Quoting from an earlier decision the court explained how, in a case involving the failure to perform a 20 minute observation period (where the defendant admitted that he did not burp regurgitate or place anything in his mouth), substantial compliance might apply, but why here it must be strict compliance :

“The standards exist, not for their own sakes, but in service of the truth-seeking function, which they promote by ensuring that blood, breath, and urine tests are conducted in a manner that produces reliable results. If the standards are to serve this purpose, the rule of substantial compliance must be one that neither blithely ignores the standards nor enforces them in a purely rote manner. We are therefore reluctant to relax the standards when doing so would require inquiry into the scientific basis for a particular standard. However, when it is clear that a particular deviation from the mandated procedures does not pertain to a matter of science, a court is perfectly competent to determine whether, in a given case, the deviation compromised the integrity of the testing process.” People v. Ebert, 401 Ill.App.3d 958 (2010)

Continuing, the appeals court wrote:

"[T]he issue of whether the failure to include preservative in the tube of blood used for defendant's BAC test requires an inquiry into the scientific basis for the requirement. The blood was not tested for almost three weeks after it was drawn; neither the trial court nor this court is “perfectly competent,” in the words of Ebert, to determine whether the failure to include the preservative compromised the integrity of the testing process. See Ebert, 401 Ill.App.3d at 965. The legislature has assigned to the Department of State Police the responsibility to promulgate standards for chemical analyses of blood, urine, and breath and to “prescribe regulations as necessary to implement” section 11–501.2. 625 ILCS 5/11–501.2(a)(1) (West 2006). We will not second-guess the reasoning behind these regulations by considering conflicting testimony regarding scientific matters that are within the purview of the Department of State Police. We cannot conclude that failure to strictly comply with subsection (d) is de minimis. Under the facts of this case, Ebert does not support the State's argument that substantial compliance with the regulation would be sufficient. Instead, the Ebert analysis reinforces our conclusion that the trial court did not err in excluding the BAC evidence because the State did not comply with subsection (d)."

The appeals court then affirmed the suppression of the blood test in this matter.
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DUI Law - Ohio Suppresses Blood Test From Hospital

Thank you to Regent Troy McKinney for delivering this gem to DAD last week. When does an arrest occur following alleged drunk driver being taken to the hospital due to crash injuries? Last week DAD discussed a Georgia case of Buford v. State of Georgia, --- S.E.2d ----, 2011 WL 5248199 (Ga.App.) where, faced with a similar set of facts, the court found an arrest had occurred prior to a blood draw (thus making the results admissible in court). In State of Ohio v. Rawnsley Slip Copy, 2011 WL 5319863 (Ohio App. 2 Dist.), 2011 -Ohio- 5696, a trial court suppressed a blood test where the driver was taken to a hospital following a two-vehicle crash.

The pertinent facts and findings were stated as follows:

“The ‘Consequences of Test and Refusal’ language informed Ms. Rawnsley that she was under arrest for an OVI violation and further informed her of the consequences if she refused to take a blood alcohol test. The reality, however, is that when Ms. Rawnsley was read the BMV 2255 language she was not under arrest. Officer Fosnight, again very forthrightly, was adamant on this issue at both the February 3 and February 25 hearings. It seems that a primary reason Ms. Rawnsley was not arrested is the Huber Heights Police Department's practice of not arresting an individual who is being admitted to the hospital. This practice is driven, it seems, by the possibility that Huber Heights will incur some type of financial responsibility for an arrestee's medical care. Ms. Rawnsley, upon being read the BMV 2255 language, agreed to a blood draw."

The appellate court, agreeing with the trial court that the defendant was not in fact under arrest prior to consenting to the draw, found that state law was violated and the result was inadmissible under implied consent. The appellate court then had to deal with the State's alternate argument, namely that there was probable cause and exigent circumstances for the blood draw, so therefore the results were still admissible. 

Holding that there was not justification for ignoring the requirement of a warrant , the opinion reads as follows:

The general problem of stale evidence in connection with blood alcohol concentrations, addressed in Schmerber v. California, has been codified in the Ohio Revised Code. For a test result to be admissible, the blood draw must take place within three hours of the alleged violation. R.C. 4511.19(D)(1)(b).

"With regard to exigent circumstances, the trial court concluded:

“Officer Fosnight, as he forthrightly admitted, did not consider making any effort to obtain a warrant. It seems to this court that the Huber Heights Police, in order to establish an exigent circumstance, had the obligation, particularly since the collision occurred not in the early morning hours but at approximately 10:55 p.m., to draft a probable cause affidavit and attempt to reach a judge, or to at least explain why this was not practical. If, after a good faith effort, such an attempt was unavailing, this court, without hesitation, would conclude that exigent circumstances existed. However, without such an attempt, or any explanation concerning why such an attempt was not practical, this court cannot conclude that exigent circumstances existed. FN$


“FN 4. The case of State v. Hollowell [, Montgomery App. No. 24010,] 2011–Ohio–1130 provides an example where the Montgomery County Sheriff's Department, using two deputies, were able to obtain a warrant to obtain a blood draw within the three hour period prescribed by O.R.C. 4511.19(D)(1)(b).”

"Essentially, the trial court found that the State had failed in its burden to prove the existence of exigent circumstances justifying a warrantless search. The evidence in the record supports the trial court's finding that Officer Fosnight responded to the scene within one minute of the collision. He was promptly made aware of circumstances establishing probable cause to believe that Rawnsley, the sole occupant of the front portion of one of the vehicles involved in the collision, was under the influence. Given these facts, we cannot say that the trial court's finding that the State failed in its burden of proving the existence of exigent circumstances is against the manifest weight of the evidence."

Editor's Note: The Rawnsley case is IMHO valuable on two points as described above. First, that the mere reading of an implied consent advisory which contains language telling a person that one is under arrest, does not necessarily make it so, and secondly, that exigent circumstances does not automatically exist merely because blood alcohol dissipates over time.

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DWI Law - Texas Blood Draw Method Constitutional Says Court

In Pacheco v State of Texas, --- S.W.3d ----, 2011 WL 3211265 (Tex.App.-Fort Worth) the Court of Appeals was asked to review the reasonableness of the defendant's blood draw under the Fourth Amendment. The Texas court summarized its view of the general law in this area as follows:
"A blood draw constitutes a search and seizure under the Fourth Amendment. Schmerber v. California, 384 U.S. 757, 758–59, 86 S.Ct. 1826, 1829 (1966). The “Fourth Amendment's proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner.” Id. at 768, 86 S.Ct. at 1834. The Supreme Court has set out a two-step test for determining the reasonableness of a blood draw. Id. A blood draw is reasonable under relevant Fourth Amendment standards if:

(1) the police had justification in requiring the suspect to submit to a blood test, and

(2) the police employed reasonable means and reasonable procedures in taking the suspect's blood."
In the instant case the defendant only challenged the means and procedures employed.

Christy Smith, a medical technologist certified by the American Society for Clinical Pathology, drew a sample of Pacheco's blood for testing. Smith testified that she has more than thirty years of experience as a medical technologist and that she has taken thousands of blood samples in that capacity. Smith wrote a reminder on a sticky note after drawing Pacheco's blood that said, “Pacheco, Ernest. 11/12/08. Hispanic male, short,” and “looked like Val,” one of Smith's coworkers. Smith testified that she drew blood only from Pacheco that day and that she followed the same procedure drawing his blood as she followed when drawing samples from all patients. According to Smith, the procedure follows Weatherford Regional Hospital's policies and protocols, and it does not require the technologist to ask for a patient's medical history before drawing blood.

Pacheco argued that Clark and Smith failed to obtain Pacheco's “general medical history” and that “no follow up was done.” Pacheco contended that this failure subjected him to “an unreasonable risk of medical harm that made the blood draw unreasonable under the 4th Amendment of the United States Constitution.” The State argues that the “highly trained, educated, experienced, and certified medical technologist who drew [Pacheco's] blood in a hospital testified that she does not conduct either procedure as part of her normal blood draw routine, but she did follow hospital policy and procedure.... Therefore, neither was medically necessary in this case.”

The court responded to those claims as follows:

"For the general population, the Supreme Court has determined that a blood test is a reasonable means in which to analyze an individual's blood alcohol level. Id.; see also Breithaupt v. Abram, 352 U.S. 432, 435–36, 77 S.Ct. 408, 410 (1957) (explaining that those entering the military, marrying, or going to college must take blood tests and millions voluntarily donate blood so the “blood test procedure has become routine in our everyday life”); Johnston, 336 S.W.3d at 659. Courts may deem blood testing to be unreasonable over another method of testing when “the few who on grounds of fear, concern for health, or religious scruple might prefer some other means of testing.” Schmerber, 384 U.S. at 771, 86 S.Ct. at 1836. But failing to inquire into an individual's medical history before drawing blood and failing to conduct a follow-up examination do “not render blood draws per se unreasonable.” Johnston, 336 S.W.3d at 659. Therefore, the suspect has the burden to show that the type of test employed was “not a reasonable means to obtain a blood alcohol level assessment as to him or her individually.” Id. at 660. The record must contain evidence showing that the police chose a test that was not reasonable due to a “verifiable medical condition,” or we will presume that the choice to administer the test is reasonable. Id.

Here, the record contains no evidence that Pacheco suffers from a medical condition that would have made another means of testing preferable. See id. And Pacheco is not one of “the few who on grounds of fear, concern for health, or religious scruple might prefer some other means of testing,” as Pacheco had already refused to give a breath specimen. See Schmerber, 384 U.S. at 771, 86 S.Ct. at 1836. Because Smith's failure to ask Pacheco about his medical history and conduct a follow-up examination did not render the draw unreasonable, we conclude that the police chose a reasonable means to obtain a blood alcohol assessment as to Pacheco, individually."

Pacheco then argued that Clark and Smith did not perform the procedure in a reasonable manner because the paperwork documenting the blood draw was incomplete. He contended that the “lack of identifiers places a patient at risk”; that medical procedures concerning the identity of the patient are “critical to preventing, diagnosing[,] and treating a person and can prevent unreasonable risks of medical harm”; and that it “creates unreasonable risks of medical harm.” The State argued that Pacheco failed to demonstrate how some clerical errors in the accompanying paperwork rendered the blood draw constitutionally unreasonable.

To that claim, the court wrote:

"Police officers act reasonably when drawing blood if they act in accordance with accepted medical practices, including the equipment and technique that they employ. Johnston, 336 S.W.3d at 663. The Supreme Court has explained that tolerating searches that were conducted by unqualified personnel or outside a medical environment may “invite an unjustified element of personal risk of infection and pain.” Schmerber, 384 U.S. at 772, 86 S.Ct. at 1836. Searches justified by a valid warrant have a presumption of legality unless the opponent produces evidence rebutting the presumption of proper police conduct. Amador v. State, 221 S.W.3d 666, 672 (Tex.Crim.App.2007). “[T]he reasonableness of the manner in which a DWI suspect's blood is drawn should be assayed on an objective, case-by-case basis in light of the totality of the circumstances surrounding the draw.” Johnston, 336 S.W.3d at 661.

Pacheco's argument that identifiers can prevent unreasonable risks of harm is misplaced because the standard is whether the blood was drawn in accordance with accepted medical practices, and Smith testified that she followed both the hospital's policy for drawing blood and the directives of her certification on how to draw blood. Pacheco argues that the lack of “identifiers” put him at “risk of medical harm,” but he fails to explain how he was at risk. Without more, Pacheco has failed to satisfy his burden to rebut the presumption of reasonableness. The record contains evidence supporting the trial court's conclusion that “the manner in which [Pacheco's] blood was drawn was reasonable.”

In denying the appeal, the court concluded:

"Under the totality of the circumstances, we hold that the equipment and technique Smith employed to draw Pacheco's blood followed medically accepted practices and was therefore reasonable. See Johnston, 336 S.W.3d at 662–63 (holding “Johnston's blood was drawn in accordance with acceptable medical practices and was therefore reasonable.”). The circumstances here did not “invite an unjustified element of personal risk of infection or pain.” See Schmerber, 384 U.S. at 771, 86 S.Ct. at 1836."


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DWI Appeal - US Supremes Bar Blood Test Without Actual Analyst Testimony

In Bullcoming v. New Mexico, the government sought to introduce a blood test without having the analyst who performed the actual test appear and testify in court. The United States Supreme Court held that such a technique violates the Confrontation Clause, and reversed the conviction.

Here is the Summary from the court:

In Crawford v. Washington, 541 U. S. 36, 59, this Court held that the Clause permits admission of “[t]estimonialstatements of witnesses absent from trial . . . only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” Later, in Melendez-Diaz v. Massachu-setts, 557 U. S. ___, the Court declined to create a “forensic evidence” exception to Crawford, holding that a forensic laboratory report, cre-ated specifically to serve as evidence in a criminal proceeding, ranked as “testimonial” for Confrontation Clause purposes. Absent stipula-tion, the Court ruled, the prosecution may not introduce such a re-port without offering a live witness competent to testify to the truth of the report’s statements. 557 U. S., at ___.

Petitioner Bullcoming’s jury trial on charges of driving while intoxicated (DWI) occurred after Crawford, but before Melendez-Diaz. Principal evidence against him was a forensic laboratory report certi-fying that his blood-alcohol concentration was well above the threshold for aggravated DWI. Bullcoming’s blood sample had been tested at the New Mexico Department of Health, Scientific Laboratory Division (SLD), by a forensic analyst named Caylor, who completed, signed, and certified the report. However, the prosecution neither called Caylor to testify nor asserted he was unavailable; the record showed only that Caylor was placed on unpaid leave for an undisclosed reason. In lieu of Caylor, the State called another analyst, Razatos, to validate the report. Razatos was familiar with the testing device used to analyze Bullcoming’s blood and with the laboratory’s testing procedures, but had neither participated in nor observed thetest on Bullcoming’s blood sample. Bullcoming’s counsel objected, asserting that introduction of Caylor’s report without his testimonywould violate the Confrontation Clause, but the trial court overruled the objection, admitted the SLD report as a business record, and permitted Razatos to testify. Bullcoming was convicted, and, while his appeal was pending before the New Mexico Supreme Court, this Court decided Melendez-Diaz. The state high court acknowledged that the SLD report qualified as testimonial evidence under Melendez-Diaz, but held that the report’s admission did not violate the Confrontation Clause because: (1) certifying analyst Caylor was a mere scrivener who simply transcribed machine-generated test re-sults, and (2) SLD analyst Razatos, although he did not participate intesting Bullcoming’s blood, qualified as an expert witness with re-spect to the testing machine and SLD procedures. The court affirmed Bullcoming’s conviction.

147 N. M. 487, 226 P. 3d 1, reversed and remanded.

JUSTICE GINSBURG delivered the opinion of the Court with respect to all but Part IV and footnote 6. The Confrontation Clause, the opinion concludes, does not permit the prosecution to introduce a forensic laboratory report containing a testimonial certification, made in order to prove a fact at a criminal trial, through the in-court testimonyof an analyst who did not sign the certification or personally perform or observe the performance of the test reported in the certification. The accused’s right is to be confronted with the analyst who made thecertification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist. Pp. 8–16.

(a)If an out-of-court statement is testimonial, it may not be introduced against the accused at trial unless the witness who made thestatement is unavailable and the accused has had a prior opportunity to confront that witness. Pp. 8–14.

(i)Caylor’s certification reported more than a machine-generated number: It represented that he received Bullcoming’s blood sampleintact with the seal unbroken; that he checked to make sure that the forensic report number and the sample number corresponded; that he performed a particular test on Bullcoming’s sample, adhering to a precise protocol; and that he left the report’s remarks section blank,indicating that no circumstance or condition affected the sample’s in-tegrity or the analysis’ validity. These representations, relating to past events and human actions not revealed in raw, machine-produced data, are meet for cross-examination. The potential ramifi-cations of the state court’s reasoning, therefore, raise red flags. Most witnesses testify to their observations of factual conditions or events.Where, for example, a police officer’s report recorded an objective fact such as the read-out of a radar gun, the state court’s reasoning would permit another officer to introduce the information, so long as he orshe was equipped to testify about the technology the observing officer deployed and the police department’s standard operating procedures. As, e.g., Davis v. Washington, 547 U. S. 813, 826, makes plain, however, such testimony would violate the Confrontation Clause. The comparative reliability of an analyst’s testimonial report does notdispense with the Clause. Crawford, 541 U. S., at 62. The analysts who write reports introduced as evidence must be made available forconfrontation even if they have “the scientific acumen of Mme. Curieand the veracity of Mother Teresa.” Melendez-Diaz, 557 U. S., at ___,n. 6. Pp. 10–11.

(ii)Nor was Razatos an adequate substitute witness simply be-cause he qualified as an expert with respect to the testing machine and the SLD’s laboratory procedures. Surrogate testimony of thekind Razatos was equipped to give could not convey what Caylor knew or observed about the events he certified, nor expose any lapses or lies on Caylor’s part. Significantly, Razatos did not know why Caylor had been placed on unpaid leave. With Caylor on the stand, Bullcoming’s counsel could have asked Caylor questions designed toreveal whether Caylor’s incompetence, evasiveness, or dishonesty ac-counted for his removal from work. And the State did not assert that Razatos had any independent opinion concerning Bullcoming’s blood alcohol content. More fundamentally, the Confrontation Clause does not tolerate dispensing with confrontation simply because the court believes that questioning one witness about another’s testimonial statements provides a fair enough opportunity for cross-examination. Although the purpose of Sixth Amendment rights is to ensure a fairtrial, it does not follow that such rights can be disregarded because,on the whole, the trial is fair. United States v. Gonzalez-Lopez, 548 U.S. 140, 145. If a “particular guarantee” is violated, no substituteprocedure can cure the violation. Id., at 146. Pp. 11–14.

(b)Melendez-Diaz precluded the State’s argument that introduction of the SLD report did not implicate the Confrontation Clause because the report is nontestimonial. Like the certificates in Melendez-Diaz, the SLD report is undoubtedly an “affirmation made for the purpose of establishing or proving some fact” in a criminal proceeding. 557 U. S., at ___. Created solely for an “evidentiary purpose,” id., at ___, the report ranks as testimonial. In all material respects, the SLD report resembles the certificates in Melendez-Diaz. Here, as there, an officer provided seized evidence to a state laboratory required by law to assist in police investigations. Like the Melendez-Diaz analysts, Caylor tested the evidence and prepared a certificateconcerning the result of his analysis. And like the Melendez-Diaz
certificates, Caylor’s report here is “formalized” in a signed document, Davis, 547 U. S., at 837, n. 2. Also noteworthy, the SLD report formcontains a legend referring to municipal and magistrate courts’ rulesthat provide for the admission of certified blood-alcohol analyses.Thus, although the SLD report was not notarized, the formalities at-tending the report were more than adequate to qualify Caylor’s assertions as testimonial. Pp. 14–16.

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DWI Appeal - Mass. Court Rules On Confrontation and Hospital Alcohol Testing

This case comes to DAD thanks to Tom Workman. In Commonwealth v. --- N.E.2d ----, Mass.App.Ct. , 2011 WL 2279076 (Mass.App.Ct.) the court decided issues relating to the confrontation clause and the use of hospital records to prove up a blood alcohol test taken for medical purposes, and also the admissibility of a 911 call from an anonymous source under the confrontation clause.

The defendant claimed three errors relating to the uncontested admission of his hospital records under authority of G.L. c. 233, § 79. First, he contended that their admission violated the very terms of the statute because their measurement of his blood alcohol content effectively referred to the ultimate question of his criminal liability. Second, he argued that the unavailability of the hospital record keeper at trial for cross-examination upon the accuracy of the certification of the records deprived him of his right of confrontation under the Sixth Amendment to the United States Constitution. Finally, he characterized the trial defense counsel's failure to object to the admission of the medical records as constitutionally ineffective assistance of counsel.

At trial, pursuant to G.L. c. 233, § 79, the Commonwealth introduced in evidence a copy of the defendant's hospital records and a signed form from a South Shore Hospital record keeper certifying “that the attached medical record is a true and accurate copy of the original documents.” The records contained a toxicology report. The Commonwealth then called toxicologist Donovan to explain the significance of the report. She described the process by which blood analysts use a person's serum alcohol level to calculate blood alcohol content. From the defendant's hospital toxicology report, she described his ethanol serum level as 303 milligrams per decileter. From that datum, she calculated that the defendant's blood alcohol content by weight on the night of the accident to have been between .256 and .270 percent, a level more than three times the legal limit.

In pertinent part, G.L. c. 233, § 79, as appearing in St.1959, c. 200, provides as follows:

“Records kept by hospitals ... may be admitted by the court, in its discretion, as evidence ... so far as such records relate to the treatment and medical history of such cases ... but nothing therein contained shall be admissible as evidence which has reference to the question of liability ”
The trial court first found that the records were admissible under the statute, and did not constitute "illegal references to liability.

Discussing the law in this area, the court stated:

"Objectively determinable facts resulting from medical tests and procedures conducted for diagnostic and treatment purposes and appearing in hospital records submitted under the statute may obviously bear on the ultimate question of civil or criminal liability but do not constitute improper allegations, opinions, or conclusions about liability. Subjective impressions or expressions about fault or guilt may not come in through such records. Trial judges will typically filter them out of the records. That material constitutes the forbidden “reference to the question of liability.” See Commonwealth v. Dargon, 457 Mass. 387, 394–395, 930 N.E.2d 707 (2010), and cases cited. See Mass. G. Evid. § 803(6)(B) & note at 260–262 (2011). By contrast, objective data constitute reliable information helpful to the fact finder upon issues of a technical medical nature. The test is the distinction between “a conclusory fact central to the jury's inquiry” and “physical observations from which inculpatory inferences flow.” Id. at 395, 930 N.E.2d 707, quoting from Commonwealth v. Baldwin, 24 Mass.App.Ct. 200, 202, 509 N.E.2d 4 (1987).

The court then held that the blood alcohol test reading belongs to the latter category of “physical observations.”

As far as confrontation, the defendant challenged not the introduction of the substance of the hospital records, but rather their certification by the hospital record keeper. He imputed a testimonial character to the certification of the accuracy of the record. The court stated as follows:

"The certification form has some testimonial characteristics. The keeper of the records signed the form under the pains and penalties of perjury, and created the form in response to a subpoena. However, in Melendez–Diaz v. Massachusetts, supra at 2538–2539, the United States Supreme Court made an explicit exception for “a clerk's certificate authenticating an official record—or a copy thereof—for use as evidence.” Id. at 2538. The Court acknowledged that this type of affidavit is “prepared for use at trial,” but held that the confrontation clause does not apply because such an affidavit merely “certif[ies] to the correctness of a copy of a record” and does not “furnish, as evidence for the trial of a lawsuit, [an] interpretation of what the record contains or shows, or ... certify to its substance or effect.” Id. at 2539, quoting from State v. Wilson, 141 La. 404, 409, 75 So. 95 (1917). See Commonwealth v. McMullin, 76 Mass.App.Ct. 904, 904, 923 N.E.2d 1062 (2010) (rejecting the defendant's argument that he suffered a deprivation of his confrontation rights because he did not have the opportunity to cross-examine the creator of an affidavit certifying records from the Registry of Motor Vehicles).

Holding that there was no confrontation clause violation, the court held that:

"It is clear that the certification form in the present case belongs within this categorical exception. The form certifies that the hospital furnished accurate copies of the defendant's medical records. The form does not vouch for the substance of those records as an accurate representation of the defendant's condition on the night of the accident."

With regard to the issue oif whether admission of the 911 call violated the confrontation clause, the court stated as follows:

"Did the introduction of reference to statements from unknown 911 telephone callers deprive the defendant of his right to confrontation under either the Sixth Amendment or art. 12 of the Massachusetts Declaration of Rights? FN8 Those provisions protect a defendant against the admission of out-of-court testimonial statements. Out-of-court statements “primarily aimed at enabling ‘police assistance to meet an ongoing emergency’ ” are not testimonial. Commonwealth v. Nesbitt, 452 Mass. 236, 248, 892 N.E.2d 299 (2008), quoting from Davis v. Washington, 547 U.S. 813, 828, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). In our circumstances, the 911 telephone callers were alerting the police to an ongoing threat posed by a conspicuously dangerous driver. They were urgent, and not testimonial, communications. See State v. Torelli, 103 Conn.App. 646, 658–662, 931 A.2d 337 (2007) (911 telephone calls reporting erratic driving are not testimonial, citing Davis v. Washington, supra at 822). No constitutional error occurred."

Since the court found that the admission of the evidence was lawful (or in some respects not discussed herein was 'harmless'), the court also denied the ineffective assistance claim and the conviction was affirmed.


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DUI Appeal - Florida Blood Draw Violates Search Warrant Law

The below case involves a blood draw that was taken after a search warrant was issued following a DUI arret. In State of Florida v. Geiss, --- So.3d ----, 2011 WL 2097694 (Fla.App. 5 Dist.), the trial court suppressed the blood draw because it believed that the draw violated the Florida Right of Privacy, the Implied Consent Statute, and the Search Warrant provisions of Florida law.


On appeal, the court found that the Florida constitutional right of privacy was to be read as concomitant to the 4th amendment right against unreasonable search and seizure. Since a blood draw was acceptable under the 4th amendment (see Schmerber) the court held that it did not violate the right of privacy either.



However, the court did find that the search warrant violated the statutes on search warrants. At the time of the application for the warrant, the defendant was only charged with a misdemeanor (his full background was unknown):

"The trial court also found that the blood draw was not authorized by the warrant statute, section 933.02, Florida Statutes, because blood is not “property” used as a “means to commit” a crime. In addressing this issue, we should first clarify that although this case was ultimately filed as a felony case based upon Geiss's prior DUI record, the affidavit for the search warrant did not set forth Geiss's complete record, and only averred that Geiss possessed one prior DUI conviction. So, the affidavit alleged probable cause to believe that Geiss had violated the misdemeanor DUI statute. This is significant because section 933.02, Florida Statutes, only allows the state to secure a warrant to seize “property ... used as a means to commit” a misdemeanor. § 933.02(2)(a), Fla. Stat. (2010). By contrast, the statute also authorizes the state to secure a warrant for “property [that] constitutes evidence relevant to proving that a felony has been committed.” § 933.02(3), Fla. Stat. (2010); see also, Bordo, Inc. v. State, 627 So.2d 561, 562–63 (Fla. 4th DCA 1993) (“Thus, property used to commit any crime—whether felony or misdemeanor—may be seized under a warrant; while property merely constituting relevant evidence of a crime may be seized only if the suspected crime is a felony.”). Because the affidavit below only alleged facts supporting probable cause for a misdemeanor DUI, the original issuing magistrate and the trial court reviewing the warrant in the case below properly considered only whether blood constituted “property ... used as a means to commit” the crime of DUI in this case. See, e.g., Martin v. State, 906 So.2d 358 (Fla. 5th DCA 2005) (limiting review to four corners of search warrant to determine whether sufficient probable cause existed). We agree with the trial court that it was not."

Continuing with its analysis, the appeals court then explained why blood was not an item that can be seized for a misdemeanor (as opposed to a felony) DUI:

"[W]e agree that blood is not “used as a means to commit” driving under the influence. Instead, blood is seized for its evidentiary value. And, no one uses his or her blood “as a means to” do anything, as those words are commonly used or understood. Given that statutes should be construed in accordance with their “plain and ordinary meaning,” Osborne v. Dumoulin, 55 So.3d 577, 581 (Fla.2011) (citations omitted), and that search warrants must strictly conform to the statutes and constitutional provisions which authorize their use, State ex rel. Wilson v. Quigg, 17 So.2d 697, 701 (1944); Crain v. State, 914 So.2d 1015, 1020 (Fla. 5th DCA 2005) (en banc), we agree with the trial court that blood cannot be drawn based upon probable cause that a suspect has committed misdemeanor DUI in light of the plain language of section 933.02, Florida Statutes.

Thus, the appellate court found the search warrant was improvidently granted. Nevertheless, the Florida court refused to suppress the blood draw, finding that the draw was 'in good faith':

"The good faith exception holds that the exclusionary rule need not be applied when the officer conducting the search acted in objectively reasonable reliance on an invalid warrant. State v. Watt, 946 So.2d 108, 110 ( Fla. 5th DCA 2007) (citing Leon ). The test for good faith is “whether a reasonably trained officer would have known that the search was illegal despite the magistrate's authorization.” Leon, 468 U.S. at 923 n.23.

"Geiss argues that in Isley, Judge Silverman acknowledged that an appellate determination that a warrant is not authorized under the warrant statute or is barred by the implied consent statute “may render the warrant so facially deficient as to preclude application of the Leon exception.” However, at the time the warrant was issued in this case, there was no such appellate decision barring such warrants. To the contrary, Isley was an appellate opinion from the same circuit which allowed them.

"Applying the Leon good faith exception, we find that the blood test results in this case should not have been suppressed. Accordingly, we reverse the order on appeal and remand for further proceedings."

Editors Note: The court's analysis of Florida's Right of Privacy, implies that the this Right of Privacy grants Florida citizens no more protection than what they already have under the Fourth Amendment to the U.S. and state constitutions. This interpretation, suggesting that it is only as great as the 4th Amendment, is contrary to most rules of statutory construction that bar an interpretation that would render a law meaningless.



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OUIL Appeal - Michigan Destroys Blood and Violates Due Process is Claimed

This case comes to DAD through the watchful eyes of Michigan lawyer Michael Nichols (my what a busy boy Mike!). In People v. Reid, --- N.W.2d ----, 2011 WL 1775888 (Mich.App.), the defendant challenged his DUI conviction alleging that he was denied his right to an independent analysis of his blood sample due to the destruction the blood 6 months post arrest. The defendant wasn't charged with OWI until 21 months following his arrest. He also argued that his due process rights to a speedy trial were violated by the delay in charging him, when as a result of a 60 day retention policy, a video of his arrest was destroyed well prior to the charges being filed.
On appeal, the court acknowledged that his arrest occurred 21 months following his blood draw, and that his blood was destroyed while the charges were still pending. The court found that the destruction was not improper, since the defendant had 6 months following the arrest to still ask for a preservation of the sample. "We conclude that defendant had more than an ample opportunity to have his blood sample independently tested and, therefore, the trial court did not abuse its discretion in denying defendant's motion to suppress the test results."
As far as the speedy trial violation was concerned, the court apparently employed a Barker v. Wingo SCOTUS analysis (i.e. length of delay, reasons for delay, assertion of rights by defendant, and prejudice resulting from delay). Again the court found no violation, even though the tape was destroyed 19 months prior to the charges being filed (so that defendant never had a chance to seek preservation):
"Defendant also argues that the prosecutor gained a tactical advantage in the delay in bringing charges because the prosecutor knew that the Michigan State Police would have long since destroyed the videotape of the traffic stop, thus depriving defendant of potentially exculpatory evidence from the videotape. But this argument also fails. First, defendant merely speculates that this is the reason for the delay. Indeed, defendant is unable to establish that a videotape ever even existed. The arresting officer, Trooper Bommarito, testified that he could not recall whether the police car that he was driving that evening had a video camera. Based upon the fact that there was a blank space under “video” on his police report, he concluded that there “might not have been a video” because the normal practice is to write the car number in that spot if the car is equipped with video. He further testified that, even if a video had existed, it would have been taped over after 60 days. A second officer, Trooper Rowe, who arrived at the scene at approximately the time defendant's vehicle was stopped, did have a car with video. But that video was presumably turned in and taped over under the 60–day rotation policy.

But defendant does not show that the prosecution deliberately waited to bring charges so that the tapes would be lost. Indeed, the prosecutor did not merely wait two months to bring charges, but almost two years. Not only is it mere speculation that the videotape would have been helpful to defendant and further speculation that the prosecutor waited to bring charges until any such tape was reused under the 60–day rotation policy, that speculation falls apart in light of the fact that the prosecutor then waited an additional 18 months or so to bring charges. It would seem that if the prosecutor's motivation in delaying the charges was to wait for any videotape to be reused, the charges would have been brought much sooner than was the case.

For the above reasons, we conclude that defendant has not shown a due process violation arising from the delay in charging him."


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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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DUI Appeal - Washington OKs Use of Expired Blood Tubes

In State of Washington v. Johnson, Not Reported in P.3d, 2011 WL 1485635 (Wash.App. Div. 1) the court summary reads as follows:

Michael Johnson appeals his judgment and sentence for felony driving under the influence of intoxicants (DUI). Because the State presented prima facie evidence that the blood analysis performed was free from adulteration, the court properly denied Johnson's motion to suppress that evidence. In a statement of additional grounds, Johnson claims he was denied his right to a fair trial because two witnesses involved in processing the evidence were unavailable to testify at trial. This argument does not warrant reversal. Washington State Patrol Trooper Gerald Ames responded to a one car collision on Interstate 5. There he found a Jeep Wrangler tangled in the cable guard rail on the side of the interstate. Johnson was standing in front of the Jeep and informed Trooper Ames that he was not injured. Johnson claimed he was run off of the road by another vehicle. Trooper Ames performed a records check and learned that Johnson's driving status was revoked so he placed Johnson under arrest. Although Trooper Ames did not smell intoxicants, he noticed that Johnson was “lethargic, disoriented, walked with a stagger, and was unsteady on his feet.” After additional observation of impairment, Trooper Ames notified Johnson that he was under arrest for DUI. Trooper Ames then transported Johnson to St. Joseph's Hospital for a blood draw. Phlebotomist Alicia Kester performed the blood draw. Trooper Ames supplied her with two tubes in which to collect the blood samples. Kester informed Trooper Ames that the tubes were past their expiration date by almost four months, but he instructed her to use them anyway. Dr. Naziha Nuwayhid, a forensic scientist at the state toxicology laboratory, tested both blood samples nearly two years after Johnson's arrest. Only one of the results was admissible at trial and that result showed normal therapeutic levels of Clonazepam and higher than normal therapeutic levels of Oxycodone in Johnson's blood. The State charged Johnson with felony DUI and another crime unrelated to this appeal. Before trial, Johnson moved to suppress the blood analysis evidence, arguing that the blood sample was improperly collected. After an evidentiary hearing, the trial court denied Johnson's motion and entered written findings of fact and conclusions of law. The blood analysis evidence was admitted at trial, without objection. A jury found Johnson guilty of felony DUI and the court imposed a standard range sentence.
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DUI Appeal - North Dakota Blood Test Discovery Mistakes Not Sanctioned

In North Dakota v. Sauer, --- N.W.2d ----, 2011 WL 987169 (N.D.), 2011 ND 47, the defendant filed a detailed discovery request for information, which included any blood testing notes or reports. The State claimed that they had complied with the request, and the matter was set for trial some 4-5 months later. Lisa Hentges, a forensic scientist with the North Dakota Crime Lab, testified about her analysis of Sauer's blood sample. During Sauer's cross-examination, Hentges mentioned she had a case file, which included her notes and a print out of the test results from the blood tests she performed on Sauer's blood sample. Sauer asked the district court for a brief recess so he could review the file because he claimed the State did not provide him with a copy of the file in response to his discovery request. The State admitted it did not provide Sauer with a copy of Hentges' file, but claimed the discovery request was very detailed and it “didn't notice” the request for the testing notes.

The court questioned Sauer's attorney about why he did not move to compel discovery of the testing notes, and Sauer's attorney said he did not know they existed. The court provided Sauer's attorney with the brief break he requested to allow him to view the file. After the break, Sauer's attorney requested a continuance of the trial. The court denied Sauer's request for a continuance and found the case file was not material to preparing a defense and Sauer should have brought a motion to compel if he felt he did not have something he needed. Sauer continued his cross-examination of Hentges. Later, the court ordered the State to provide a copy of the case file to Sauer's attorney after court concluded for the day.

The trial court granted Sauer's request for a brief continuance to allow his attorney to inspect the case file before continuing to cross-examine Hentges. The court also ordered the State to make a copy of the case file available to Sauer's attorney after the first day of trial and he had until the next afternoon to look at the case file. Sauer's attorney failed to pick up the copy of the file. The court granted Sauer's request to make the case file a trial exhibit, but Sauer's attorney indicated he did not want the case file admitted into evidence at the trial.



On appeal, the Supremes found that the trial courts offer of a brief recess was sufficient to remedy the violation. "Sauer has not shown he was significantly prejudiced by the State's discovery violation. We conclude the court did not abuse its discretion by denying Sauer's request for a continuance." Of course, like most defense attorneys in this field, the information in the lab file was not likely decipherable by an untrained attorney in the absence of an expert's review of the same, and one to one-and-a-half days of a 'recess' wouldn't let the defense attorney get up to speed. The Supreme Court opinion fails to note that likely dilemma.



If there is one good morsel to take from the opinion, it is the following unenforced threat by the Court:

"Our opinion in this case places all prosecutors on notice that N . D.R.Crim.P. 16 does not allow them to shift the burden of obtaining materials in the hands of other governmental agencies to the defendant. We further caution that, although a showing of prejudice is generally required before reversing a criminal conviction for a discovery violation, reversal for conduct which is merely potentially prejudicial may be warranted as a sanction for institutional non-compliance and systemic disregard of the law if the conduct is commonplace."

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DWI Appeal - Texas Rules Burden on Defense to Suppress Blood

In State of Texas v. Robinson, --- S.W.3d ----, 2011 WL 891294 (Tex.Crim.App.), the appeals court was called upon to determine who had the burden in a motion to suppress a blood test. The Defendant was arrested without a warrant for DWI and transported to a hospital, where blood was drawn. He filed a motion to suppress the results, claiming that the arrest was without a warrant and without consent. The trial court found that once there was proof that the arrest was without a warrant, then the burden of proving that the blood was drawn in conformance with the statutory provisions shifted to the State.

At the hearing, the officer testified that he could not recall whether the person who drew the blood was a nurse, chemist, or otherwise qualified under law to draw the blood sample. The trial court then suppressed the blood evidence based on the fact that “the State has not met the burden to prove that it was [a qualified person] that took it.” The State appealed, arguing that the defendant should have the initial burden of proving an actual violation, before the burden shifted to them to prove full compliance.

On appeal, the court agreed with the State. It held that the defendant has the initial burden, which shifts to the State only when the defendant has produced evidence of a statutory violation. Thus, the failure to recall who drew the blood, rather than proof that the person who drew the blood was not qualified, was insufficient to grant the motion to suppress.

NOTE: Oddly, this ruling is inapposite to the proof necessary at trial. At trial the state would have to prove actual compliance, and the lack of recall would be insufficient to admit the result. It seems like this ruling in essence would discourage a defendant from filing a pre-trial motion, knowing that doing so would transpose the burdens. The Dissenting opinion also suggests that the ruling was incorrect for the same reasons.


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DUI Appeal of the Day (DAD) - Warrant was “invalid”- 4th amendment testimony inadmissible

In State of Utah v. Dominguez, --- P.3d ----, 2011 WL 692811 (Utah), 2011 UT 11 a judge erroneously issued a telephonic search warrant authorizing a blood draw from defendant that was not issued in compliance with the rule requiring the magistrate to retain the search warrant and all supporting documents. The Supreme Court, however, found that the failure to do so did not require exclusion of the evidence. "[N]ot all constitutional errors trigger exclusion: “the exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates.” United States v. Leon, 468 U.S. 897, 916 (1984) (emphasis added)."

Of equal interest in the opinion was the courts resolution of whether the defendant was prejudiced at all. The court first noted that the defendant's 'silence' in not contesting the accuracy of the officer's averments in the application essentially conceded to their truth. The defendant countered that such an analysis would compel the defendant to choose between testifying at a Franks hearing and making admissions that could be used against him later, or tacitly accept the violation of his rights. The courts response to that argument was as follows:

In testifying at a Franks hearing, Dominguez would not have had to “forfeit his Fifth Amendment right to remain silent,” as the court of appeals concluded. State v. Dominguez, 2009 UT App 73, ¶ 17, 206 P.3d 640. In fact, the law is well settled that “when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection.” Simmons v. United States, 390 U.S. 377, 394, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). “Without this rule, a defendant would have to surrender his Fifth Amendment privilege against self-incrimination in order to assert a valid Fourth Amendment claim.” State v. Hansen, 2002 UT 125, ¶ 49 n. 4, 63 P.3d 650.

Note: The case is yet another example that, even if a violation of law is proved in the area of search and seizure, courts are expecting that there be a policy justification before blindly ordering a suppression of evidence.

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DUI Appeal of the Day (DAD) - "You Are Under Arrest" is not an 'arrest' at Common Law

In Young v. Commonwealth of Virginia, --- S.E.2d ----, 2011 WL 690655 (Va.App.) the defendant was arrested in Virginia. Virginia has a statute that requires, inter alia, that the defendant must be 'arrested' prior to submitting to a blood or breath test. Further, the arrest must occur within 3 hours of the offense for the implied-consent provisions to be applicable. On October 24, 2008, at approximately 7:00 p.m., Young ran a stop sign and crashed into an SUV.FN1 Young's car landed in a ditch with the driver's side door suspended in the air. Emergency personnel extricated him from the passenger side of the vehicle and slid him onto a backboard. Young was bleeding from his head and, according to emergency personnel, had a “very strong” odor of beer emanating from his person. His speech was slurred, and he could not tell them his name. Young became combative and emergency workers “had to tie his arms down” and strap him to the backboard.

At approximately 7:40 p.m., Virginia State Trooper G.F. Finch arrived at the scene and saw Young “fighting the medical personnel.” When he approached, Finch noticed Young had glassy eyes, slurred speech, and a “strong odor of alcoholic beverage on his breath.” When questioned by Trooper Finch, Young admitted he had been drinking prior to driving the vehicle and that the accident occurred at approximately 7:00 p.m. Trooper Finch observed in Young's vehicle two bottles of brandy and a cooler containing two cans of beer, one of which was open.

Trooper Finch followed the ambulance transporting Young to Mary Washington Hospital. They arrived at approximately 9:20 p.m., and Young was promptly admitted. While Young was lying in the hospital bed hooked to IVs, Finch told him he was under arrest and advised him of his Miranda rights and the implied consent law. Finch testified Young was not free to leave at that point. Young verbally consented to have his blood drawn. After Finch took possession of vials of Young's blood, he released Young from custody on a Virginia Uniform Summons pursuant to Code § 19.2-73. At the time of the offense, Code § 19.2-73 provided, in pertinent part, “If any person under suspicion for driving while intoxicated has been taken to a medical facility for treatment or evaluation of his medical condition, the arresting officer at the medical facility may issue ... a summons for a violation of Code § 18.2-266.”

The defendant claims that he was not 'arrested' within the terms of the law because he was not taken into physical custody. he cites to valid caselaw that holds that the mere words of an officer, telling a defendant "You are under arrest" is not sufficient to constitute an arrest:

Under common law, the “mere words of an officer stating to a suspect that he is ‘under arrest’ are not sufficient to constitute an arrest.” Bristol v. Commonwealth, 272 Va. 568, 573, 636 S.E.2d 460, 463 (2006) (citing California v. Hodari D., 499 U.S. 621, 627, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991)).FN3 Quoting from Professor Perkins's seminal work on the subject, Hodari D. held the common law also requires the officer to have some physical contact with the arrestee (even a slight “touching” suffices) or, absent such contact, the arrestee must submit to the officer's assertion of authority. Hodari D., 499 U.S. at 626-27 (citing Rollin M. Perkins, The Law of Arrest, 25 Iowa L.Rev. 201, 206 (1940)); see also Hall v. Commonwealth, 280 Va. 566, 571, 701 S.E.2d 68, 71 (2010), aff'g, 55 Va.App. 451, 686 S.E.2d 554 (2009) (applying these common law principles, holding an individual was in custody for purposes of the escape statute, Code § 18.2-478, when the officer “spoke words of arrest and actually touched Hall for the stated purpose of arrest”).

Ultimately, the Virginia court held that the issuance of the summons, coupled with the words of the arrest, were sufficient earmarks to constitute an arrest. Additionally, the court used the intent of the statute, and under the doctrine of pari materia, looked at other statues dealing with similar actions and found that the intent was to allow catch-and-release summonses as 'arrests' for purposes of the Virginia laws.

The dissent also made valid points:

It is important to note that Trooper Finch issued the summons after the blood sample was taken, and not prior to it.

Because the Virginia Court found that an arrest had occurred prior to the defendant's submission to a blood draw, the Court affirmed the conviction and the admission of the result.

EDITORS NOTE: Although the Virginia Court disagreed with the defense, this argument has some validity. Further, the issue of an arrest also triggers the appropriate probable cause issue at the time of arrest - not afterwards.

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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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Flawed blood draw procedures in DUI cases not uncommon

Image via WikipediaEvery jurisdiction has specific procedures in place for DUI blood draws. These procedures exist for a very good reason: to prevent improper draws that could result in flawed test results and the subsequent conviction of innocent people. However, it's not uncommon for local police departments to ignore the important procedures in place and allow unlawful blood draws to occur. This recently happened in Tracy, California. As explained in this Recordnet.com article, for almost 8 months, the Tracy Police Department allowed firefighters to draw blood from suspected drunk drivers. This occurred even though California law specifically excludes firefighters from drawing blood for DUI cases since they are not certified paramedics. According to the article, this error is expected to have an impact on pending and closed DUI cases:

Gil Somera, a Stockton attorney who has defended clients charged with driving drunk, said the validity of the blood sample is vital to a DUI case.

"It is probably the most important component of the evidence," he said.

Somera said the fact that the blood was drawn by firefighters could affect closed cases.

A similar issue was encountered in Indiana last year, resulting in a change to the state's DUI laws, as described in a recent WIBC.com article:

The Indiana Court of Appeals ruled a year ago the law doesn't let a lab technician do your blood-alcohol test -- the law says "certified phlebotomist," and Indiana has no such certification. In March, legislators eliminated that language, and said anyone with the proper training, including a lab tech, can take blood -- but they still have to follow established protocols, or be under the supervision of a doctor.

However, even after the Indiana law was amended to expand the classifications of people authorized to draw blood, local police departments still allowed unqualified people to draw blood for DUI cases. As explained in the article, in one recent case, an unsupervised and unqaulified lab technician drew blood in the absence of any protocols. Accordingly, the blood test results obtained from the blood draw have been held to be inadmissible, resulting the dismissal of the DUI-related charges pending against David Bisard. The danger of DUI blood and breath testing is in the inaccuracy. There is so much room for error, whether from faulty equipment, errors in the underlying software programming, calibration errors or human error in obtaining the breath or blood sample. These cases are further examples of how error-prone these procedures can be and just go to show that what at first glance might appear to be a fool-proof case against someone accused of DUI, in many cases, is just the opposite.

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