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 Appeal - Georgia Requires Right to Independent Test or Suppression Occurs

In State of Georgia v. Davis, --- S.E.2d ----, 2011 WL 1843166 (Ga.App.), the trial court suppressed the State's breath test on the basis of a failure to reasonably accommodate the defendant's request for an independent test. The facts indicated that the defendant Davis was arrested after being stopped at a roadblock:

Davis initially refused to submit to the State-administered chemical breath test, but she then agreed to do so. Davis did, however, request a blood test, and she reiterated her request after she completed the chemical breath test. Johnson told Davis that he would “be glad to take her to get a blood test” and that she should choose the location for the test. When Davis indicated that she didn't know where she wanted to take the test, Johnson suggested two hospitals in the area, St. Mary's or Athens Regional. The officer also told Davis that she would have to pay for the test. According to Johnson, he was unfamiliar with the payment protocol at St. Mary's and Athens Regional, but the hospitals where he had taken previous suspects for independent chemical tests required payment at the time of the tests. Davis then explained that her purse was in the passenger's vehicle, which was no longer at the scene, and that she therefore could not pay for a blood test. Thereafter, Davis changed her request for a blood test to a second breath test, and when Johnson asked where she wanted to have it administered, Davis stated that she wanted to take it “here,” at the scene. Davis then asked if the officer would drop the charges if the second test indicated that her blood alcohol was under the legal limit, and he replied negatively; Davis then withdrew her request for another breath test.

In finding a lack of reasonable accommodation, the appeals court first set out the 'reasonable accommodation test' as follows:

The factors to be considered by the trial court in determining whether an officer reasonably accommodated an accused motorist's request for an additional chemical test include, but are not limited to: (1) availability of or access to funds or resources to pay for the requested test; (2) a protracted delay in the giving of the test if the officer complies with the request; (3) availability of police time and other resources; (4) location of the requested facilities, e.g., whether the requested facility is in a different jurisdiction; and (5) opportunity and ability of accused to make arrangements personally for the testing.

Here, the trial court had previously found that:

[A]fter Davis requested an independent blood test, Johnson told her that she would have to pay for the test (even though he did not know the protocol regarding payment at either of the local hospitals). However, her purse was in the vehicle she had been driving, which had since been driven from the location, and she told Trooper Johnson that she did not have money to pay. The State offered no evidence to show that the Defendant was afforded the opportunity to have her purse brought back to the scene or was given another opportunity to make arrangements to pay for the test. Under these circumstances, the officer did not reasonably accommodate the Defendant's request, and the results of the State-administered breath test are inadmissible.

In affirming suppression, the appeals court concluded:

We are not persuaded by the State's argument that Davis withdrew her request for an independent blood test after Officer Johnson advised her that she would have to pay for the test but failed to allow her the opportunity to make other payment arrangements. As we have previously stated,

the police cannot escape the duty to reasonably accommodate individuals who have invoked the right to an additional test simply because such individuals fail to insist on alternatives, especially when they have not been instructed of their responsibility to make such arrangements and that failure to do so results in a waiver. It must be remembered that such individuals are in police custody and do not have free reign to dictate their own actions. Because of the very nature of the arrest, their faculties are often impaired, and their actions are largely dictated by the instructions given to them by the police.

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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 - Kansas DUI Arrest and Preserving Error after Denial of Motion to Suppress

The case of Kansas v. Adam, Slip Copy, 2011 WL 867608 (Table) (Kan.App.) gives DAD an opportunity to reiterate the importance of preserving errors. in several past DAD columns, appeals are brought where the defense counsel failed to object, causing the grounds for appeals to be lost, waived, forfeited, or reviewed under more onerous standards, such as 'plain error' or 'harmless error'. The below case involves a defendant who lost a motion to suppress evidence where he refused field tests, and had the pbt suppressed. However, at trial the defendant did not re-raise the denial of his motion to suppress. Under Kansas law, when the district court has denied a motion to suppress, the moving party must object to the introduction of that evidence at the time it was offered at trial to preserve the issue for appeal. This rule is not much different than many other states in that regard. Kansas does have an exception to the above, however. The exception states:

“When the same judge who heard the testimony at a suppression hearing presides over the bench trial and is aware of the circumstances under which the State obtained the evidence and the defendant's objections to it, when the trial consists of a submission to the court of stipulated facts and a transcript of the suppression hearing, and when no witnesses are called or additional evidence presented, the contemporaneous objection rule does not apply and the issue of the admissibility of the evidence is preserved for appeal.”

The majority found that even though all of the testimony was admitted by stipulation from the motion and into the trial, and even though it was the same judge at both, since there were 5 additional Intoxilyzer exhibits introduced during the trial, then the above exception did NOT apply, and the denial of the motion to suppress was insufficiently preserved for appeal.

In a matter of apparent gratuity, the appeals court nevertheless stated that even though the matter was not preserved, it would have found sufficient probable cause anyways. Always, always raise objections contemporaneous to admission of evidence, and during motions at the close of the State's case, and in any written post-trial motion in order to ensure that it is preserved for appeal.


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DUI Appeal of the Day (DAD) - State deliberately destroyed potentially exculpatory evidence

In State of Delaware v. Wright, Not Reported in A.3d, 2011 WL 826357 (2011 Del.Com.Pl.),upon entry of appearance, counsel for the Defendant filled a request under Court of Common Pleas Criminal Rule 16 for the production of “a copy of the videotape/recording device of the in-station security tape/recording, as well as the 20 minute observation period”.FN1 Defense counsel proffered that there “was not a 20-minute observation period and that the examining officer left the room during the observation period.” FN2 This observation period is required to properly lay the foundation for admissibility of the intoxilyzer test results at trial. Upon subpoena, the chief would constantly respond that:

Please be advised that The Rehoboth Beach Police Department does not have a video tape of your client walking into the building or of the twenty minute observation period. We have a surveillance camera that is used for security purposes monitored by our Dispatch Center. This device records for immediate playback only. There is no retention of these recordings.

His system was built to hold up to 2.6 days of video when set to record 24/7, and about 4.6 days when set for motion only. However, in reality the system worked much longer, and the police often retrieved video when accused of assaulting arrestees or for other beneficial purposes. Thus, the chief knew that his statements were false or misleading. His misleading statements were repeated for years, as evidence was allowed to be erased and destroyed.

When the trial court here found out, it suppressed the breath test as a sanction based upon a discovery violation:

The Court finds that the Rehoboth Beach Police Department's discovery policies constitute entrenched, flagrant misconduct. Between 2006 and 2009, Chief Banks repeatedly distributed incorrect discovery responses to defense attorneys despite his knowledge that these responses were misleading and incorrect.

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DUI Appeal of the Day (DAD)- Pretextual Inventory Search Causes Suppression

This case involves a search of a vehicle. In US v. Taylor, --- F.3d ----, 2011 WL 561979 (C.A.8 (Mo.)) Officer Gillespie and her partner responded to a request by a fellow officer to follow a truck and initiate a traffic stop if the driver, who officers later identified as Taylor, committed a traffic violation. Officer Gillespie was informed that Taylor was suspected of involvement in a narcotics transaction and that the narcotics were believed to be in his vehicle. Officer Gillespie observed Taylor fail to signal before changing lanes, and she initiated a traffic stop. When Taylor could not produce a valid insurance card, she arrested him and took him into custody.


Police towing policy dictated that when an individual is arrested for a traffic violation, the officer should give the individual the option to release the vehicle to another driver, allow the vehicle to be left at the scene, or drive the vehicle to the police station. Officer Gillespie did not provide Taylor with these options, however, because of another KCPD policy requiring the impoundment of a vehicle “when the vehicle is known or believed to have been used in the commission of a crime and has evidentiary value.” Based on this policy, Officer Gillespie decided to tow and search the vehicle.



Regardless of under what portion of the policy an impoundment occurs, KCPD policy further requires officers to complete a tow-in report when a vehicle is being towed. The tow-in report must include a “content inventory,” which is a “detailed inventory and listing of items located inside of the vehicle being towed.” When a towed vehicle contains “valuable property in large quantities,” officers must nevertheless generate a detailed inventory, using an additional form if more space is needed to list the contents of the vehicle. Upon searching Taylor's vehicle, Officer Gillespie discovered hundreds of tools, several pieces of equipment, as well as a plastic bag containing approximately 74 grams of powder cocaine, clothing, toiletries, and paper. In completing the tow-in report, Officer Gillespie did not itemize or list the hundreds of tools, but wrote “misc. tools” in the relevant section of the form.

On appeal, the court found that the inventory search was pretextual, especially in light of the officer's failure to specifically itemize all of the contents in the vehicle. It suppressed the evidence. The appeals court noted that:

The search of a vehicle to inventory its contents must nevertheless be reasonable under the totality of the circumstances, United States v. Hall, 497 F.3d 846, 851 (8th Cir.2007), and may not be “a ruse for a general rummaging in order to discover incriminating evidence.” Florida v. Wells, 495 U.S. 1, 4 (1990). The reasonableness requirement is met when an inventory search is conducted according to standardized police procedures, which generally “remove the inference that the police have used inventory searches as ‘a purposeful and general means of discovering evidence of a crime.’ “ Marshall, 986 F.2d at 1174 (quoting Colorado v.. Bertine, 479 U.S. 367, 376 (1987) (Blackmun, J., concurring)).

The court noted that "[g]iven the hundreds of tools in Taylor's truck, Officer Gillespie's description of “misc. tools” does not constitute a detailed, itemized inventory. Continuing, the court concluded:

Even if police fail to adhere to standardized procedures, the search is nevertheless reasonable provided it is not a pretext for an investigatory search. Hall, 497 F.3d at 852; see also Whren v. United States, 517 U.S. 806, 812 (1996) (noting that an officer's motive may invalidate objectively justifiable behavior in the context of an inventory search). “[S]omething else” must be present to suggest that the police were engaging in their criminal investigatory function, not their caretaking function, in searching the defendant's vehicle. Rowland, 341 F.3d at 780-81. Here, the “something else” is found in the officer's testimony at the suppression hearing. Officer Gillespie testified that the basis for the traffic stop, the arrest, the towing of the vehicle, and the inventory search was the officer's belief that Taylor had narcotics in his vehicle. She also testified that she would not have arrested Taylor, impounded his vehicle, or inventoried the contents of the truck if not for her belief that the vehicle contained evidence of a narcotics crime. This testimony leads us to conclude that the search was conducted because police believed they would find evidence of narcotics in Taylor's truck, and thus the inventory was merely a pretext for an investigatory search.

The dissent stated as follows:

I would hold that Officer Gillespie's good faith generic description of the contents of Taylor's van dispels any suggestion that it was an after-the-fact attempt to insulate the inventory search from a constitutional challenge. Accordingly, I would affirm the order denying the motion to suppress.

Fortunately, this justices 'blind' opinion was outnumbered.


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