State v. Bell

• Citation: 115 Idaho 36,764 P.2d 113
• Decision Date: 01 November 1988
• Docket Number: No. 16725,16725
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Vernon V. BELL, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 113

764 P.2d 113

115 Idaho 36

STATE of Idaho, Plaintiff-Respondent, v. Vernon V. BELL, Defendant-Appellant.

No. 16725.

Court of Appeals of Idaho.

Nov. 1, 1988.

Dan J. Rude, Coeur d'Alene, for defendant-appellant.

Jim Jones, Atty. Gen., Myrna A.I. Stahman, Deputy Atty. Gen., for plaintiff-respondent.

SWANSTROM, Judge.

Vernon Bell was found guilty by a jury of aggravated driving while under the influence of alcohol. The charge arose from an automobile accident involving Bell which occurred in April 1986 on Interstate 90 in Kootenai County. At trial, Bell objected to the admission of his blood-alcohol test result on the ground that an insufficient foundation was established. The objection was overruled.

On appeal from the judgment of conviction, Bell contends first that the trial judge erred in admitting the blood-alcohol test result in the absence of a showing that his test procedure complied with the requisite Department of Health and Welfare testing standards. Second, he asserts that it was error to admit the test result in the absence of proof by the state that Bell had been informed of his right under I.C. § 18-8002 to have an additional test for alcohol concentration made by a person of his own choosing. We determine for reasons that follow that the district court did not err in admitting the test result. We affirm the judgment of conviction.

Bell's automobile was traveling in the wrong direction in a freeway lane when it crashed head on with another vehicle. Immediately after the accident Bell was taken by a police officer to a hospital for medical treatment. At the hospital, the officer requested that Bell undergo a blood-alcohol test. The request came after the officer detected the odor of alcohol on Bell and had learned that alcohol had been found in Bell's vehicle at the accident scene. Bell consented and a registered nurse withdrew blood for the test, using a "Venoject" test kit.

Bell's first assignment of error is based upon the testimony of this nurse. During cross examination about the procedure used to withdraw Bell's blood sample, the nurse was asked whether the sample tubes supplied in the test kit were empty prior to the withdrawal of blood. The nurse agreed that the tubes were empty. There was "nothing in them." When the state moved to enter the test result into evidence, Bell objected. Based on the nurse's response that nothing was in the sample tubes, Bell contended that the sample tubes lacked two required chemical additives, a preservative (sodium fluoride) and an anti-coagulant agent. Bell argued that compliance with the proper test methods and standards, which include the requirement of the two chemical additives, was a foundational prerequisite to admission of the test result. Without a showing by the state that the tubes used in taking a blood sample contained the required chemical additives, the test result should not have been admitted. ¹

The district court disagreed. The court overruled Bell's objection without making a finding of whether the required chemicals were absent from the tubes. The court concluded that even if the chemicals were absent no reason was shown to doubt the reliability of the test. The court interpreted the question of compliance with the test methods and standards as one which went to the weight of the evidence, not to the foundation for its admission.

Bell reasserts his argument on appeal. He notes first that under I.C. § 18-8004(4) the analysis of blood samples is to be performed by a state approved laboratory under the standards adopted by the Department of Health and Welfare. ² The standards for performance of blood-alcohol tests have been promulgated by the department under title 2, chapter 7--Rules Governing the Performance of Forensic Alcohol Examinations, Rules and Regulations of the Department of Health and Welfare. Among these standards, IDAPA 2.7500,01.a, provides in pertinent part: "Blood specimens shall contain ten (10) milligrams of sodium fluoride per cubic centimeter of blood plus an appropriate anticoagulant." (Emphasis added.) Second, Bell cites several cases from other jurisdictions which hold that blood-alcohol or breath test results are not admissible unless compliance with the applicable testing standards, as well as other foundational requirements, is established. These cases include Fuenning v. Superior Court in and for the County of Maricopa, 139 Ariz. 590, 680 P.2d 121 (1983); People v. Emrich, 132 Ill.App.3d 547, 87 Ill.Dec. 867, 478 N.E.2d 6 (1985); State v. McDonald, 697 P.2d 1328 (Mont. 1985); McManus v. State, 695 P.2d 884 (Okla.Crim.App.1985).

The state argues that the district court's determination was correct; compliance with the regulations is not a question of foundation, but one which goes to the weight to be given the test result. The state also urges that the record shows the test, as administered, in fact complied with the applicable regulations.

We begin by noting that most jurisdictions in considering the question of the admissibility of a blood-alcohol test result follow the position asserted by Bell. They hold that compliance with the regulations governing blood-alcohol tests is foundational. The test result is not admissible unless compliance with these regulations is established. Annot., Blood Alcohol Test--Prescribed Methods, 96 A.L.R.3d 745, §§ 2-3 (1979). The position advanced by the state and the district court, that the question of noncompliance goes to the weight and not the admissibility of the evidence is a minority position adopted in several jurisdictions including California. People v. Adams, 59 Cal.App.3d 559, 131 Cal.Rptr. 190 (1976); State v. Hansen, 203 N.W.2d 216 (Iowa 1972); State v. Mills, 133 Vt. 15, 328 A.2d 410 (1974); Shumate v. Commonwealth, 207 Va. 877, 153 S.E.2d 243 (Va.1967).

Both of these positions, however, are based on the language of the specific state statutes which provide for administering the test and utilizing the test result at trial. In the cases cited by Bell, the language of the statutes expressly condition either the "validity" (People v. Emrich, supra; McManus v. State, supra ) or the "admissibility" (Fuenning v. Superior Court, supra; State v. McDonald, supra ) of the test result on compliance with the requisite department regulations. The effect of noncompliance with the testing procedures under these statutes is clearly indicated, the evidence is inadmissible.

The minority jurisdictions like California have statutes that do not expressly condition the "validity" or "admissibility" of the test result on compliance with the test regulation requirements. Instead, some of these statutes merely provide that the tests "shall" be administered and analyzed according to certain specified standards or regulations. See People v. Adams, supra.

This is the form of Idaho's legislation. The pertinent language of I.C. § 18-8004(4), in effect at the time, stated:

Analysis of blood, urine or breath for the purpose of determining the alcohol concentration shall be performed by a laboratory operated by the Idaho department of health and welfare or by a laboratory approved by the Idaho department of health and welfare under the provisions of approval and certification standards to be set by that department,.... [Emphasis added.] ³

The question then is whether, in the absence of an express exclusionary provision, this language nevertheless requires exclusion of a test result where compliance with the Health and Welfare testing requirements is not shown.

The admissibility of the result of a scientific test such as the blood-alcohol test in I.C. § 18-8004 turns normally on a foundation which establishes the acceptability, validity, reliability and accuracy of the test and test procedures. In the admission of a test result for alcohol concentration the Legislature has concluded that certain foundational elements need not be presented at trial unless such elements are disputed. The Legislature has acknowledged that certain tests, due to a history of reliability and accuracy, are presumed to be valid and acceptable. This has also been acknowledged by the courts. See State v. Hartwig, 112 Idaho 370, 732 P.2d 339 (Ct.App.1987) (holding that Intoximeter 3000 test result may be offered into evidence without detailed foundation, but reliability of result may be challenged by defendant).

The Legislature has enacted a statutory scheme which allows an expedient method for admitting a blood-alcohol test result into evidence without the need for some expert testimony. As provided by I.C. § 18-8004(4):

Notwithstanding any other provision of law or rule of court, the results of any test for alcohol concentration and records relating to calibration, approval, certification or quality control performed by a laboratory operated or approved by the Idaho department of health and welfare or by any other method approved by health and welfare shall be admissible in any proceeding in this state without the necessity of producing a witness to establish the reliability of the testing procedure for examination.

When this proposed statute was presented to the Legislature the statement of purpose accompanying the legislation explained that expert witness testimony was an unnecessary burden on the state. Such testimony, if used merely to establish a foundation, provided superfluous verification of a test procedure which the Legislature believed to produce an "extremely reliable" result.

Inherent in this statutory scheme, however, is an awareness by the Legislature of the need for uniform test procedures. An "extremely reliable" test result can only be the product of a test procedure which from previous use is known to be capable of producing an accurate result. This benefit is best provided by strict adherence to a uniform procedure. This was recognized by the Legislature and is apparent first, from the statutory language which provides for the test procedure to be determined by the ...