State v. GrahamState v. Graham
The defendant Graham was convicted of negligent homicide,
The context facts are: The defendant Graham was the driver of a car involved in a two-vehicle collision. A 16-year old occupant of the other vehicle was killed in the accident. Graham was taken unconscious to a local hospital, where blood was withdrawn from his arm. Upon subsequent analysis by the State Medical Technician in Baton Rouge, the blood contained sufficient alcohol to create a presumption that Graham was intoxicated at the time of the accident, see
Bill No. 1
Bill No. 1 was taken to the admission of testimony by a local medical technician concerning the extraction of blood from the defendant‘s arm when unconscious. The ground is that such blood was removed from the defendant without his consent. The trial court held that there was “implied consent” by virtue of
The accident occurred on December 5, 1971. At that time, the statutory regulation applicable was provided by
If the defendant had been conscious, he could have withdrawn his implied consent, but such refusal was admissible in evidence,
We were initially given some concern as to whether the consent implied by the statute extended only to cases where the defendant was actually “arrested“. See
As to the claimed unconstitutionality of the extraction of the blood from the person for alcohol testing without the actual consent of the individual: The United States Supreme Court has held that, where such is done with probable cause and in a reasonable manner, there is no violation of constitutional guarantees of due process and against self-incrimination and unreasonable search and seizure. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448 (1957).
We ourselves have indicated that no deprivation of constitutional right so occurs. State v. Dugas, 252 La. 345, 211 So.2d 285 (1968). This view represents the general rule followed by most of the more recent decisions of the other American jurisdictions. Annotation, Physical Test—constitutionality, 25 A.L.R.2d 1407 (1952), supplementing 164 A.L.R. 967 (1948).
Bill Nos. 2 and 3
The remaining bills were taken to the admission of the vial of blood taken from the defendant. The essential additional grounds urged were that the medical technicians could not unequivocably testify that it was impossible for the vial to have been tampered with, either as it sat on a laboratory
Similar contentions were rejected in State v. Coleman, 254 La. 264, 223 So.2d 402 (1969). The chain of circumstances established by the State‘s evidence sufficiently proves, by a preponderance of the evidence, continuous custody, control, and supervision over the vial of blood. Mere speculation that the blood sample might have been tampered with, in the face of the strong preponderant proof to the contrary, does not defeat admissibility of the sample; however permissible an argument of possible tampering might be to the trial jury.
Decree
For the reasons assigned, the conviction and sentence are affirmed.
Notes
This court has also held that the refusal to submit to blood testing is admissible and that evidence of such offends no constitutional right. State v. Dugas, 252 La. 345, 211 So.2d 285 (1968), critically noted 15 Loyola L.Rev. 117 (1968) and 30 La. L.Rev. 331-332 (1969). See also Annotation, Evidence—Alcoholic Test—Refusal, 87 A.L.R.2d 370 (1963), discussing the almost uniform holdings in other states holding valid a statutory provision for admission of evidence of the refusal to take a blood test.