State v. Disch
| Decision Date | 27 June 1984 |
| Docket Number | No. 82-659,82-659 |
| Citation | 119 Wis.2d 461,351 N.W.2d 492 |
| Parties | STATE of Wisconsin, Plaintiff-Appellant-Petitioner, v. Cynthia DISCH, Defendant-Respondent. CR. |
| Court | Wisconsin Supreme Court |
Daniel J. O'Brien, Asst. Atty. Gen. (argued), for plaintiff-appellant-petitioner; Bronson C. La Follette, Atty. Gen., on the briefs.
Archie E. Simonson, Madison, for defendant-respondent.
This is a review of the court of appeals decision in State v. Disch, 114 Wis.2d 47, 337 N.W.2d 194 (Ct.App.1983), which affirmed a pretrial order of the circuit court for Dane county, Moria Krueger, Circuit Judge, suppressing the results of a blood test in a prosecution for homicide by intoxicated use of a motor vehicle (sec. 940.09, Stats.1979-80) on the grounds that the defendant Disch was denied due process because her demand for the production of a portion of the original blood for retesting could not be accommodated. The prosecution used the blood remaining after the original test to conduct a test for controlled substances, thus denying Disch a portion of the sample for testing for alcohol by her own experts.
We reverse the court of appeals and hold that the original blood alcohol test need not be suppressed. Due process in respect to the blood alcohol test is afforded the defendant because she had the right to have a second test for intoxication conducted by the police or, alternatively, another or different alcohol test conducted by persons of her own choosing; she had the statutory right to inspect the machine used for determining the Blood Alcohol Content (BAC); she had the right to confront and cross-examine all persons in the chain of custody of the original blood sample; and she had the constitutional right to confront and cross-examine the person who performed the test to determine the BAC.
We conclude these rights, which are secured by the statutes and by the constitution, afford the defendant due process--the right to a fair trial. Additionally, there is no evidence whatsoever to show that, at the time the demand was made for the production of the blood sample, the sample could have produced a test result that either would verify or disprove the original test. There was no evidence produced by the defendant to show that the sample was testable for alcohol content. We emphasize, however, that whether or not the sample was testable is irrelevant to the question of whether due process can be afforded only when the blood sample is produced by the state at the defendant's request. Due process does not rest on so narrow a basis.
Due process is afforded by the elements of cross-examination of witnesses and the inspection of the machine, and is not dependent upon the production of the remnants of the original sample. The results of a blood test mandated by statute are prima facie correct, and the results are statutorily admissible. Impeaching factors which may result from cross-examination of those who have performed the tests go to the weight of the evidence or the credence to be given to the witnesses by the factfinder. Assuming authentication of the sample tested, it is not permissible to suppress the results of a blood test (or a breathalyzer test) because no retest was made or could be made.
In this case, Cynthia Disch was involved in an automobile accident on August 8, 1980. A blood sample of approximately 10 cc. of blood was taken shortly after the accident. On the same day the blood was extracted, a blood test at the State Laboratory of Hygiene revealed a BAC of .121 percent by weight.
Two days later, a passenger in the Disch automobile died as the result of the accident. On January 29, 1981, a criminal complaint was issued which charged Disch with homicide by intoxicated use of a motor vehicle, contrary to sec. 940.09, Stats.1979-80.
After the initial appearance on February 4, 1981, but prior to arraignment, Disch, on February 5, 1981, filed a motion to inspect the blood sample and also moved to suppress the results of the test. 1 After the motion to produce the blood sample was filed, the assistant district attorney in charge of the case discovered that the deceased passenger was a drug user. He then directed that the remaining sample of Disch's blood be sent to the crime laboratory for the determination whether the defendant's blood contained any controlled substance. The examination of the blood sample at the crime laboratory failed to reveal the presence of any controlled substance. 2
After preliminary hearing on February 26, 1981, the defendant was bound over for trial. On April 16, 1981, the tube containing the blood sample was turned over to an expert for the defense, who, on April 24, reported that the few drops of blood remaining in the sample tube were insufficient to perform a test for alcohol.
After filing of the information, on April 24, 1981, motions were renewed for suppression of the blood test on the additional grounds that "defendant asserts that the State has destroyed the blood sample taken from the defendant thereby depriving the defendant from exercising her right for discovery."
Subsequently, a hearing was held on December 3, 1981, on defendant's motion to suppress the blood test results. The motion was granted, and the blood test results were ordered suppressed on March 18, 1982.
The trial judge's memorandum opinion detailed the facts and concluded there was nothing to show that the consumption of the blood sample in the controlled substances analysis was "unavoidable" as a part of a proper investigation because that test was unrelated to the charge of homicide by intoxicated (alcohol) use of a motor vehicle. It accordingly found that there was no investigative reason to justify the destruction. The opinion recited that the blood sample was "material," because the blood sample could not be distinguished from the ampoule described in State v. Booth, 98 Wis.2d 20, 295 N.W.2d 194 (Ct.App.1980), which was found to be of "obvious" materiality. The trial court held:
"[T]he due process rights of the defendant have been irretrievably denied by virtue of the actions of the agent of the State of Wisconsin, and that the only remedy available to this Court is the suppression of what may well be a critical piece of evidence regarding the defendant's blood/alcohol content because of the resulting inability of the defendant to perform independent testing on the result sought to be introduced by the State."
The trial court, having determined that the consumption of the blood resulted from activities of the state not necessary for the investigation of intoxication by the consumption of alcohol, found it unnecessary to make a determination of whether the conduct of the state was in good faith or in bad faith.
Additionally, the trial court did not determine that Disch was under arrest prior to taking the blood sample, as is required by sec. 343.305(2)(am), Stats.1979-80. Nor did it address the question urged by the state that the request for a blood sample was not timely made because the case was not yet within the jurisdiction of the circuit court when the demand was made, i.e., the request was made before the preliminary hearing and before arraignment, and according to sec. 971.31(5)(b), 1979-80, such demands are not permitted until after an information has been filed. The record shows the information was not filed until March 2, 1981.
Thus, the case is in the pretrial stage. Appeal was proper, however, under sec. 974.05(1)(d)2, Stats.1979-80, as being from any order which has the substantive effect of suppressing evidence.
The court of appeals affirmed, using the same reasoning utilized by the trial court. It said the materiality of the blood sample requested by the defendant was analogous to the materiality of a breathalyzer ampoule, which Booth, supra, said was "obvious." The trial court, relying upon Booth, failed, as did Booth, to explore whether the materiality of the ampoule or blood sample at the time of the original test necessarily was identical to its materiality at a later time. It also stated that:
114 Wis.2d pp. 50-51, 337 N.W.2d 194.
The logic of this statement is impeccable, but, like the statement in Booth --that the materiality of the ampoule is "obvious"--the statement overlooks the possible transitoriness of that materiality.
The court of appeals, having determined that the blood sample was material at the time of its extraction and test thereafter on the same day, postulates a continuing materiality. It exonerates the defendant from showing materiality:
"Because defendant could not know the conditions under which the state kept the blood sample, she could not have established its suitability for testing when she sought an independent test." P. 51.
Unstated is the failure of the defendant to even assert that a blood sample taken on August 8, 1980, although kept under optimum conditions, would be testable for blood alcohol in March or April of 1981. Also unnoticed by the court of appeals was the specific assertion, referred to earlier, in defendant's motion of March 5, 1981, that a blood sample taken in August of 1980 would have undergone chemical changes and could not be tested for alcohol in March of 1981.
While the court of appeals makes no attempt to set aside established law that materiality must be shown by the defendant demanding the production of evidence, 3 it resorts to the "analogous" presumption of continuing materiality in respect to a breathalyzer ampoule as determined by the court of appeals in Booth and State v. Raduege, 100 Wis.2d 27, 301 N.W.2d 259 (Ct.App.1980). Initially, it should be observed that, even were there a proper scientific...
To continue reading
Request your trial
-
State v. Luedtke
...and long standing body of law on the due process implications of evidence preservation and destruction. See, e.g., State v. Disch, 119 Wis.2d 461, 351 N.W.2d 492 (1984) ; State v. Ehlen, 119 Wis.2d 451, 351 N.W.2d 503 (1984) ; State v. Walstad, 119 Wis.2d 483, 351 N.W.2d 469 (1984). This pr......
-
State v. Weissinger
...before she was charged. Although decided before the Youngblood analysis was set forth by the Supreme Court, in State v. Disch, 119 Wis.2d 461, 478–79, 351 N.W.2d 492 (1984), and State v. Ehlen, 119 Wis.2d 451, 456, 351 N.W.2d 503 (1984), the supreme court rejected the defendants' arguments ......
-
State v. McManus
...test was administered within three hours of the event to be proved. Section 885.235(1)(c), Stats.; see also State v. Disch, 119 Wis.2d 461, 472-77, 351 N.W.2d 492 (1984). A breath test result may be excluded, however, where the accuracy of the test is so questionable that its result is not ......
-
State v. Smet
...by statute, the reliability of the testing device, and the credentials of the laboratory or the technician. See State v. Disch, 119 Wis.2d 461, 471, 351 N.W.2d 492 (1984). ¶ 25 Smet may desire a particular defense, but that is not what the constitution guarantees. The right to present a def......
-
Early steps in the case
...v. Amundson, 69 Wis. 2d 554, 576, 230 N.W.2d 775 (1975); Wold v. State , 57 Wis. 2d 344, 349-50, 204 N.W.2d 482 (1973); State v. Bisch, 119 Wis. 2d 461, 478, 351 N.W. 2d 492 (1984). In the instant case, Mr. (name client) is charged with First Degree Intentional Homicide. The central piece o......
-
Early steps in the case
...v. Amundson, 69 Wis. 2d 554, 576, 230 N.W.2d 775 (1975); Wold v. State , 57 Wis. 2d 344, 349-50, 204 N.W.2d 482 (1973); State v. Bisch, 119 Wis. 2d 461, 478, 351 N.W. 2d 492 (1984). In the instant case, Mr. (name client) is charged with First Degree Intentional Homicide. The central piece o......
-
Early Steps in the Case
...v. Amundson, 69 Wis. 2d 554, 576, 230 N.W.2d 775 (1975); Wold v. State , 57 Wis. 2d 344, 349-50, 204 N.W.2d 482 (1973); State v. Bisch, 119 Wis. 2d 461, 478, 351 N.W. 2d 492 (1984). In the instant case, Mr. (name client) is charged with First Degree Intentional Homicide. The central piece o......
-
Early Steps in the Case
...v. Amundson, 69 Wis. 2d 554, 576, 230 N.W.2d 775 (1975); Wold v. State , 57 Wis. 2d 344, 349-50, 204 N.W.2d 482 (1973); State v. Bisch, 119 Wis. 2d 461, 478, 351 N.W. 2d 492 (1984). In the instant case, Mr. (name client) is charged with First Degree Intentional Homicide. The central piece o......