State v. Ehlen

¶1This is a review1 of an unpublished decision of the court of appeals, dated December 27, 1982, which reversed a suppression order of the circuit court for Kenosha county, William U. Zievers, Judge. The issue in this case is whether the destruction of Raymond R. Ehlen’s blood sample necessitates suppression of the blood test results.2 The court of appeals held that, because the defendant failed to show the materiality of the blood sample at the point of its destruction, under State v. Booth, 98 Wis. 2d 20, 295 N.W.2d 194 (Ct. App. 1980), suppression of the blood test results was not appropriate.

¶2The defendant challenges the court of appeals decision, which reversed the trial court’s suppression order, on three grounds: (1) That the court failed to consider the statutory basis upon which the trial court could have suppressed the test results for failure of the state to comply with secs. 971.23 (4) and (5), Stats.; (2) that the court of appeals also failed to consider the discretionary basis for suppression; and (3) that the court’s analysis of the destruction in terms of the “materiality” of the blood sample was incorrect. We affirm the court of appeals.

¶3We affirm because the blood sample is not evidence intended, required, or even susceptible of being produced by the state under the provisions of sec. 971.23 (4) and (5), Stats. Only the results of the tests will be offered in evidence, and these are mandatorily admissible. Sec. 343.-305(7), Stats. Hence, the provisions of that statute do not apply to a blood sample, because due process is afforded, not only by the statutory right to have access to test reports prior to trial, but, more important, the statutes afford a defendant the right to an additional blood *453test at the time of arrest. Most important, however, the defendant is afforded the whole panoply of due-process protections at trial: The right to cross-examine witnesses and experts for the state, the right to impeach by use of the separate blood or breath analysis results, and the right to attack the credibility of the state’s witnesses.

¶4The importance of the production of the original breath ampoule or a portion of the blood sample as the sine qua non of due process is a myth that should not be perpetuated. The result of the test of the blood sample taken of Raymond R. Ehlen is admissible under the statutes. The production, or nonproduction, of the residue of the blood sample taken from his person at the time of his arrest is irrelevant to whether the results of the test administered by the state are to be admitted in evidence.

¶5On June 27, 1981, the defendant, Raymond R. Ehlen, was involved in an accident which occurred in Kenosha county. Ehlen was operating a station wagon, which he apparently drove into the path of Mark A. Fliess, who was operating a motorcycle. Fliess was killed in the collision. The Kenosha county deputy who assisted the defendant from his car testified that he smelled a strong odor of intoxicants on Ehlen’s breath, observed that his eyes were bloodshot, and that he appeared to be disoriented. After Ehlen was transported to St. Catherine’s Hospital in Kenosha, the deputy requested that a blood sample be taken. Dr. John Sanson performed the analysis of the defendant’s blood sample two days after it had been withdrawn, and the analysis revealed a .233 percent alcohol concentration in the defendant’s blood. A criminal complaint was filed on July 14, 1981, charging the defendant with causing the death of Mark A. Fliess by negligent operation of a vehicle while under the influence of an intoxicant, contrary to sec. 940.09, Stats. At the August 25 continuation of the preliminary hearing, Dr. Sanson testified that the sample had been destroyed, ac*454cording to standard hospital procedures, two to seven days following the analysis. On August 27, 1981, an information was filed. The defendant filed a motion for discovery of the blood sample on September 4, 1981, or, alternatively, if the state were unable to comply, a motion for suppression of the blood test results.

¶6A suppression hearing was not conducted. Therefore, the only record before us consists of the preliminary hearing. A review of the testimony offered at the July 29, 1981, preliminary hearing reveals the following information. The state elicited testimony from the medical technician who drew the blood that, after she had completed drawing the sample and labeling the tube containing the sample with the defendant’s name, his patient number, and the date, she dipped the top portion of the tube into hot paraffin. She then placed the tube containing the sample into a refrigerator. At the August 25 continuation, the state elicited testimony from the pathologist who tested the blood that he received the sealed tube bearing the defendant’s name two days after it had been drawn. The doctor stated that he removed the plasma from the sample and transferred the plasma into a shielded plastic capsule containing a reagent, which was placed into a machine that tests for blood alcohol. Dr. Sanson further testified that he also used water as a control, in addition to two other controls, one which routinely gives a reading equivalent to one hundred milligram percent plus or minus two percent, or .10 percent blood alcohol, and one which gives a reading of two hundred milligram percent plus or minus two percent, or .20 percent blood alcohol. As a result of these readings, the doctor testified that he was able to conclude that the machine that he used for the analysis was in proper working order. He further indicated that the defendant’s sample yielded a reading of .233 percent blood alcohol.3 The doctor stated that, be*455cause the tube containing the defendant’s blood was sealed with paraffin, the delay of two days between the time of withdrawal and the time of testing should “hardly have any effect” upon the resulting blood alcohol reading. If the delay did have any significant effect, he stated that it would lower the blood alcohol reading.

¶7The defendant, during cross-examination, produced testimony from the doctor that the vial containing the defendant’s blood had been discarded, according to routine hospital procedure, two to seven days after the test was performed. The pathologist also testified that the machine which he utilized for the testing had been approved by both the State of Wisconsin and the American College of Pathologists following review of routine readings with standardized controls.

¶8The defendant was bound over for trial at the conclusion of the preliminary hearing. The trial court granted the defendant’s motion to suppress the blood test results, relying upon the case of State v. Amundson, 69 Wis. 2d 554, 230 N.W.2d 775 (1975). The trial judge stated that, because intoxication is an element of the offense for which the defendant was charged, the blood sample was unquestionably material to the guilt or innocence of the defendant.

¶9The court of appeals reversed the suppression order, stating that the sole issue raised by the appeal is whether the destruction of the blood sample deprived the defendant of his due process rights. The court referred to State v. Booth, 98 Wis. 2d 20, 295 N.W.2d 194 (Ct. App. 1980). The court of appeals correctly identified the crucial issue, and that point is whether the defendant was denied his due process rights. Boothcorrectly stands for this proposition. Where Bootherred — as we pointed out *456in State v. Walstad, 119 Wis. 2d 483, 381 N.W.2d 469 (1984), and State v. Disch, 119 Wis. 2d 461, 351 N.W.2d 492 (1984), of even date herewith — is in its belief that the retention of an ampoule or a blood sample was relevant to due process or, to state the question alternatively, whether a fair trial could not be had if the blood test results were introduced unless the ampoule or blood sample was produced for retesting. We held, on the basis of the records in Walstad and Disch, that the retention of a breath ampoule or of a blood sample was of miniscule importance in the assurance of a fair trial when weighed in the balance against the traditional rights of defendants in criminal or quasi-criminal proceedings. Due process — the sine qua non of a fair trial — may be assured and, by our constitution and statutes, is assured quite apart from any questions about the materiality of the blood test sample or of a breathalyzer ampoule.

¶10The court of appeals found that the blood sample, even if produced, would not have been material. It accordingly reversed the trial court’s suppression order. In that ultimate conclusion, it was correct. The blood test results, for the reasons stated in Walstad and Disch, are admissible in evidence. Due process safeguards are available, as we set forth in those cases, to attack the authenticity of the tests and the credibility of expert witnesses.

¶11The proceedings at the preliminary hearing recounted above exemplify the factual basis which must be established by the prosecution if due process is to be assured. The preliminary examination, prima facie at least, revealed the circumstances of the arrest and the facts that established probable cause for the arrest. There was extensive testimony in respect to the taking of the blood sample and the procedures used for testing, including the procedures utilized by the pathologist who performed the tests to assure that false readings were not obtained.

¶12*457All of these assertions of the state’s witnesses may be again subject to scrutiny at trial. All the mechanisms of due process or fair trial, cross-examination, production and confrontation of witnesses, credibility, and the offer of counter-evidence can then come into play. It is error to so minimize these great tools of the common law as to conclude due process will be violated if a blood test is not suppressed merely because a portion of the sample — even if it were retestable — could not be produced for further tests.

¶13Again, it must be emphasized, the blood test statutes and the implied consent law have their internal safeguards of due process — the right to demand and to receive an additional or alternate type of an alcohol test. The duties of law enforcement officers in respect to guaranteeing the statutory safeguards is set forth in State v. Wdistad. We are not obliged in this case to determine sanctions that may be applied in the event that, in the future, proper admonitions are not given to a suspected intoxicated driver.

¶14We conclude the court of appeals was correct in its holding, though not in its rationale, that the trial court erred when it suppressed the blood test results. We accordingly affirm its decision, and the order suppressing the blood test results is reversed. The cause is remanded for trial or other proceedings that are now appropriate.

¶15By the Court. — Decision affirmed, and cause remanded to the circuit court for further proceedings.