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 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 of the Day (DAD) - When is Blood being Drawn for Medical Purposes?

In Arizona v. Hansen, Not Reported in P.3d, 2010 WL 5549045 (Ariz.App. Div. 2) the driver was involved in a single-car accident and eventually transported by ambulance to a hospital. (Interestingly, no injuries to this driver are ever described or mentioned in the opinion). At the hospital, the officer requested that if hospital personnel drew Hansen's blood for any medical reason, they also retain a sample for DPS purposes. A hospital employee then drew blood from Hansen apparently using two needles, one for a blood draw ordered by the attending physician and the other to fill two vials provided by the officer. DPS analysis of the second sample revealed a blood alcohol concentration of .207.

In Arizona, the admissibility of a blood alcohol test varies greatly between that drawn for hospital/medical purposes, and that drawn for police/criminal purposes. At hearing, the defendant Hansen first contended that the trial court erred in determining the blood draw comported with the hospital blood purposes statute, asserting the use of “an additional needle puncture” violated the statute and that the second puncture was not for medical purposes. Amazingly, the Arizona court found that the second needle puncture (and resultant draw) were for medical purposes, stating as follows:

Hansen's contention that the second puncture was not for a medical purpose is similarly unpersuasive both in view of our reasoning in Lind and the factual backdrop of this case. In Lind, hospital personnel drew a blood sample in excess of what was needed for medical purposes in order to set a portion aside for law enforcement use, in keeping with the hospital's established policy. Id. ¶¶ 3-7. We held that the entire sample was for medical purposes within the meaning of the statute, and stressed that the blood draw was not for a legal purpose until law enforcement requested and received the sample. Id. ¶ 19.

¶ 7 Here, the officer arrived at the hospital and requested a blood sample after an attending physician had already ordered a blood draw “for a CBC” (complete blood count), which the hospital's blood technician testified was solely for medical purposes. As in Lind, the officer did not initiate the blood draw but was provided a sample drawn in excess of what was drawn for medical purposes. Although the officer supplied two “gray-topped vials” for the sample, he had no role in the hospital employee's choosing to make two separate punctures; the evidence showed the employee did so according to his own or the hospital's preexisting protocol. And nothing in the record suggests the officer contemplated an additional puncture or was aware of the technician's methods. Because the record shows the officer had no control over the procedure chosen by medical personnel to comply with his request under the statute, and Hansen does not meaningfully challenge any other aspect of the blood draw procedure, the trial court did not err in concluding the blood draw did not violate § 28-1388. Cf. Lind, 191 Ariz. 233, ¶ 19, 954 P.2d at 1062 (hospital's custody and control of all blood drawn factor in concluding portion specifically set aside for police satisfied “medical purposes” requirement of statute).

IMHO, only those persons who have followed Alice down the wormhole could honestly believe that this blood draw was not for police purposes. And in another ringing of the death knell to the exclusionary rule, the court stated:

Hansen also claims the second needle puncture constituted an unconstitutional police intrusion, in violation of her Fourth Amendment rights, citing Cocio. We need not explore this issue, however, because under the circumstances of this case, even if the additional puncture raised constitutional concerns, suppression of the blood test evidence was not required. “A Fourth Amendment violation does not mandate reflexive exclusion of evidence.” State v. Booker, 212 Ariz. 502, ¶ 12, 135 P.3d 57, 59 (App.2006). Instead, the primary purpose of the exclusionary rule is to deter police misconduct. Id. ¶ 13. The exclusionary rule is not a personal right and applies only as a last resort and when it will result in appreciable deterrence. Herring v. United States, 555 U.S. 135, ----, 129 S.Ct. 695, 700 (2009). And “the benefits of deterrence must outweigh the costs.” Id.


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