2004 Ohio 1026 | Ohio Ct. App. | 2004
{¶ 2} According to the state, on November 17, 2001, Wells ran a red light at the intersection of Factory Road and U.S. Route 35 in Beavercreek, Ohio, while traveling westbound on U.S. Route 35. Consequently, Wells' vehicle collided with a Honda driven by Mary Greene. The front half of the Honda hit an automobile driven by James Carson, who was traveling eastbound on U.S. Route 35. As a result of the accident, Greene was killed, and Carson suffered severe pain in his wrist.
{¶ 3} After the accident, Wells was transported to Miami Valley Hospital by emergency medical technicians from the Beavercreek Fire Department. Doctors at the hospital treated Wells as a trauma patient. Per routine procedure with trauma patients, Kristine Kolker, a phlebotomist with Compunet Clinical Laboratories ("Compunet"), the medical laboratory for the hospital, drew blood from Wells. The blood was tested by Sharon Kirchner, a Compunet employee. The alcohol level in her blood plasma was .121 and her whole blood conversion was .110. Approximately two hours later, additional blood was drawn by the Beavercreek Police Department, with Wells' consent, and it was tested by the Miami Valley Regional Crime Laboratory. The result of this sample was .060. Wells was arrested by Officer Molnar at Miami Valley Hospital and taken to the police station.
{¶ 4} On November 30, 2001, Wells was indicted for one count of aggravated vehicular homicide, in violation of R.C.
{¶ 5} On July 19, 2002, the trial court overruled both motions to suppress. With regard to the first blood sample, the court concluded that an anticoagulant had been used in the testing of Wells' blood and that, regardless, the results were still admissible "so long as the procedures are reliable and the person doing the testing had sufficient training and skill to qualify her in that regard." Citing Kolker's qualifications and Compunet's certification by the College of American Pathologists and by the Health Care Financing Administration of the Department of Health and Human Services, the court concluded that the testing had been reliable and the person performing the test was qualified. As for the chain of custody issue, the court found no break in the chain of custody from the time Wells' blood was drawn through the time it was tested by Sharon Kirchner. The court further held that the failure to retain the sample for a one-year period did not render the test result inadmissible, because the disposal did not violate the Due Process Clause. Following Cleveland v. Haffey,
{¶ 6} On August 23, 2002, Wells entered guilty pleas in accordance with North Carolina v. Alford (1970),
{¶ 7} "The trial court committed prejudicial error by overruling appellant's motion to suppress the results of a blood sample which was collected and maintained in blatant violation of rule of evidence
{¶ 8} "Appellate review of a motion to suppress presents a mixed question of law and fact. When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses. State v. Mills
(1992),
{¶ 9} R.C.
{¶ 10} As articulated by the Supreme Court of Ohio,
{¶ 11} "The General Assembly established the threshold criteria for the admissibility of alcohol-test results in prosecutions for driving under the influence and driving with a prohibited concentration of alcohol in R.C.
{¶ 12} In Burnside, the Supreme Court of Ohio reiterated that strict compliance with the ODH regulations is not required for blood results to be admissible.
{¶ 13} "A court infringes upon the authority of the Director of Health when it holds that the state need not do that which the director has required. Such an infringement places the court in the position of the Director of Health for the precise purpose of second-guessing whether the regulation with which the state has not complied is necessary to ensure the reliability of the alcohol-test results." Id. at 159.
{¶ 14} We have recently held that the statutory-based requirements for admissibility of evidence used to prove a violation of R.C.
{¶ 15} Wells claims that the trial court erred in overruling her motion to suppress the first blood sample taken by Kristine Kolker, a Compunet employee, and analyzed by Compunet at Miami Valley Hospital. She asserts that the procedures deviated from ODH regulations in five respects: (1) the blood sample was not collected with an anticoagulant, (2) the state failed to maintain the chain of custody for the sample; (3) the state failed to refrigerate the blood sample properly; (4) the blood sample was not analyzed by a person or facility qualified by the Ohio Department of Health, (5) the blood sample was not retained for a one-year period. Each will be addressed in turn.
A. Use of an Anticoagulant
{¶ 16} Ohio Admin. Code
{¶ 17} In support of her assertion that an anticoagulant was not used and, instead, that a gel coagulant was in the vacuum container, Wells cites to the following exchange between defense counsel and Kolker:
{¶ 18} "Q: And what's in this vacuum tube? Was there an anticoagulant?
{¶ 19} "A: We just recently changed tubes. To tell you the truth, I'm almost positive it would be an SST separator tube. That has a gel in it that separates the serum from the cells.
{¶ 20} "Q: A gel. Do you know if you were employing a gel at the time on November 17th?
{¶ 21} "A: Correct.
{¶ 22} "Q: You were using a gel then?
{¶ 23} "A: I'm almost positive, yes.
{¶ 24} "Q: It was not a powder?
{¶ 25} "A: A powder?
{¶ 26} "Q: Mmm-hmm.
{¶ 27} "A: There is a little bit of power that helps it clot, but I could not tell you specifically what that powder is in the tube.
{¶ 28} "Q: So the purpose of the powder is to clot?
{¶ 29} "A: Correct. So you then can spin it." (T.II at 26-27).
{¶ 30} Based on this testimony, Wells apparently contends that the trial court should have found that a gel coagulant was used rather than a solid anticoagulant, and that the collection procedure did not substantially comply with ODH requirements.
{¶ 31} The state responds that Kolker's testimony, read together with that of Dr. Daniel Hood, Medical Director of Compunet, demonstrates that a solid anticoagulant was used in the first blood. Hood testified that Compunet performs an enzymatic assay on either plasma or serum to test for the amount of alcohol in the blood. He stated that when blood is drawn for alcohol testing, the patient's arm is swabbed with a Betadine swab, which does not contain any type of alcohol, and the blood is collected into a vacuum container. He stated that the vacuum container contains a Lithium-Heparin, which is a solid anticoagulant. The state notes that Kolker also testified that a powder was in the tube, and that specific tubes were used for blood samples that were drawn for the purpose of blood alcohol testing.
{¶ 32} Reading Kolker's and Hood's testimony together, the trial court did not abuse its discretion in concluding that an anticoagulant was present in the vacuum tube used by Kolker. The trial court was presented with competent, credible evidence in the form of Hood's testimony that the tubes used for blood alcohol testing contained a solid anticoagulant. Although Kolker's testimony contained evidence that both an anticoagulant and a coagulant might have been used, the trial court was free to conclude, in light of Hood's testimony, that the tube contained an anticoagulant, as required by the Ohio Administrative Code. Because the trial court could have reasonably concluded (and did, in fact, conclude) that a solid anticoagulant was used in the vacuum container, the collection procedure did not deviate from the requirements of Ohio Admin. Code
B. Chain of Custody
{¶ 33} Wells asserts that the state did not establish a complete chain of custody for the first blood sample taken by Kolker. Ohio Admin. Code
{¶ 34} Wood testified that the patient's name, the patient's hospital identification number, and the date and time of collection are placed on the vacuum tube at the time the blood is collected. Kolker testified that she places her initials on the tube when she collects the blood sample. In addition, Wood indicated that this information was kept on a separate record. Kolker testified that once the sample is taken, the sample is sent through the "tube system" to the laboratory, where it is tested. Sharon Kirchner testified that she began testing the sample as soon as it arrived through the pneumatic tube system. We agree with the trial court that there was no break in the chain of custody from the time the blood sample was taken until it was tested by Compunet.
C. Refrigeration of the Blood Sample
{¶ 35} Wells claims that the second blood sample, drawn at Miami Valley Hospital at the request of the Beavercreek Police Department, was not properly refrigerated. Specifically, she cites to the testimony of Officer Brian Burkett, in which he stated that during the twenty minutes that it took to transport the blood sample to the Miami Valley Regional Crime Lab, the sample was not refrigerated. We note that Wells did not raise the issue of lack of refrigeration with the trial court (see Doc. #114), and that she has not challenged on appeal the trial court's ruling admitting the second blood sample. Accordingly, she has waived any appeal of this matter. We note, parenthetically, however, that Ohio Admin. Code
D. ODH Qualification
{¶ 36} Wells argues that Compunet was not a laboratory licensed by the Ohio Department of Health and, thus, the results of its blood alcohol analysis must be inadmissible under R.C.
{¶ 37} The state cites to several cases, arguing that the lack of an ODH permit does not render the alcohol test results inadmissible, because the hospital procedures substantially complied with ODH regulations. In State v. Herrig (Apr. 16, 1999), Wood App. No. WD-98-047, the defendant moved to suppress the results of a blood test ordered by an emergency room doctor for treatment purposes. The Sixth District Court of Appeals stated that "test results may be admissible even when the technician who analyzes a blood sample does not hold a valid permit from the Ohio Department of Health." Id., citing State v.Dress (1982),
{¶ 38} In State v. Quinones, the Ninth District Court of Appeals also concluded that medical blood tests were admissible, despite the fact that the laboratory did not have an ODH permit. The appellate court concluded that R.C.
{¶ 39} In the present case, Hood testified that Compunet is certified by the College of American Pathologists ("CAP"), the major inspection organization for clinical laboratories in the United States. He indicated that certification requires participation in blind studies for testing unknown samples and undergoing a thorough external inspection every two years. In addition, Hood testified that Compunet has participated in continuing serum, alcohol and volative survey compliance evaluations by CAP, and that it has successfully produced correct results in every survey. Hood indicated that Compunet has not filed for ODH certification but that it meets the substantial requirements for that certification. Sharon Kirchner testified that she has a Bachelor of Science degree in medical technology from Ohio State University, and that she has been registered by the American Society of Clinical Pathologists. She indicated that she has worked in her field for twenty-seven years, ten years of which she has worked for Compunet.
{¶ 40} Using the standard of substantial compliance as set forth in Burnside, we cannot conclude that Compunet and Kirchner have substantially complied with the permit requirements of Ohio Admin. Code Chapter 3701-53. As indicated by Hood, Compunet's employees do not have ODH permits, the lab does not maintain a copy of Ohio Admin. Code Chapter 3701-53, and it has not incorporated the ODH regulations into its procedure manual.
{¶ 41} Although Compunet does not substantially comply with ODH regulations, we agree with the state the Wells' blood test results are still admissible in the context of a R.C.
{¶ 42} Turning to R.C.
{¶ 43} In our judgment, the same approach applies to blood test results that fail to comply with ODH regulations regarding violations of R.C.
We note that our ruling herein does not conflict with our recent holding in Mayl, supra. In Mayl, the defendant was indicted for aggravated vehicular homicide based on a violation of R.C.
{¶ 44} Turning to the case before us, the record supports the conclusions that Compunet drew Wells' blood with a non-alcohol antiseptic into a vacuum tube with a solid anticoagulent, as required by Ohio Admin. Code
E. Sample Retention
{¶ 45} Ohio Admin. Code
{¶ 46} In concluding that the disposal of Well's first blood sample did not render the results of Compunet's analysis inadmissible, the trial court relied upon Haffey, in which the defendant challenged the admissibility of blood drawn by hospital personnel for medical treatment. As in the instant case, the hospital had discarded the blood within one week in the ordinary course of business. Evaluating whether the failure to preserve the sample constituted a due process violation, the Haffey
court held that "the failure to preserve a blood sample consistent with Ohio Adm. Code
{¶ 47} Wells asserts that the circumstances herein are distinguishable from Haffey. She notes that she had no legal representation until December 27, 2001, many days after the sample was destroyed. She emphasizes there is no evidence that she was advised that a vial of blood had been drawn and turned over to the police for alcohol testing or that the hospital intended to destroy the sample within three to five days. Wells thus argues that she did not have "a reasonable opportunity to preserve the sample." She further contends that the facts that Compunet was not licensed by the ODH and that there was conflicting evidence about whether an anticoagulant had been used raise suspicion about the reliability of the test results. Thus, she argues that the blood sample might have had some exculpatory value.
{¶ 48} It is undisputed that Compunet did not substantially comply with the ODH requirement to maintain a positive blood specimen for a period of one year. See Burnside, supra. However, as with the lack of a permit, the failure to comply with ODH regulations does not necessarily render Wells' test results inadmissible in her R.C.
{¶ 49} The Due Process Clause of the
{¶ 50} In this case, Wells' first blood sample was potentially exculpatory. Certainly, there is at least a chance that further testing may have revealed a different blood-alcohol concentration. However, the blood sample was not exculpatory evidence, as that term is applied under Brady. Indeed, the hospital testing indicates that it was inculpatory. Kirchner testified that blood samples were normally destroyed within three to five days. Hood likewise indicated that blood samples were normally retained, on average, for three days. There is no evidence that Compunet acted outside of its normal procedures, nor is there evidence that the state acted in bad faith in permitting the destruction of such evidence. But see Rains,
{¶ 51} Although we find that the medical blood test at issue herein is admissible in Wells' aggravated vehicular homicide prosecution based on a R.C.
{¶ 52} Upon reviewing R.C.
{¶ 53} We recognize that the Ohio legislature may have intended only to require ODH compliance from laboratories which perform chemical analyses at the request of law enforcement for law enforcement purposes. Although R.C.
{¶ 54} Clearly, this issue is in need of legislative clarification. The unfortunate result of this apparent legislative oversight is that law enforcement may be unable to use the results of blood tests performed by certified clinical laboratories in many of those DUI cases where the defendant has done the greatest harm, i.e., aggravated vehicular homicide cases. Surely, this was not the goal of the legislature. As recognized in Quinones, by amending R.C.
{¶ 55} Wells' assignment of error is overruled.
{¶ 56} The judgment of the trial court will be affirmed.
Brogan, J. and Young, J., concur.