State v. Green
| Decision Date | 02 July 1982 |
| Docket Number | No. 81-KA-1863,81-KA-1863 |
| Citation | 418 So.2d 609 |
| Parties | STATE of Louisiana v. Patricia GREEN. |
| Court | Louisiana Supreme Court |
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parkerson, Dist. Atty., Nancy Gilliland, Lavalle Satma, Asst. Dist. Attys., for plaintiff-appellee.
James A. Hobbs, Blackwell, Chambliss, Hobbs & Henry, West Monroe, for defendant-appellant.
*
Defendant, Patricia E. Green, was convicted by a jury of two counts of negligent homicide, R.S. 14:32, and sentenced to three years at hard labor concurrently on each count. She appealed filing seven assignments of error.
On May 31, 1980, the defendant, Patricia E. Green, accompanied by a woman friend, drove from Monroe to Alexandria for a visit. On the return trip from Alexandria that evening, six miles outside Monroe, defendant's vehicle veered into the opposite lane and collided head on with a pickup truck occupied by a teenage couple. The truck overturned and burst into flames. The two teenagers, who were trapped inside, burned to death. According to a blood test performed about three hours after the accident, the defendant's blood alcohol level was .14%. Based on the time lapse, a state expert witness testified that her level would have been about .18% at the time of the accident. In her trial testimony the defendant admitted that she and her friend had packed a case of beer in an ice chest and that she had consumed portions of at least six cans of beer during the trip. Other witnesses testified that immediately before the accident the defendant had committed several traffic violations by tailgating, flashing her high beam head lights and passing dangerously.
In her first assignment of error the defendant challenges a jury instruction which the trial judge gave on the statutory presumption of intoxication raised by the blood test results. The charge was almost identical to the instruction this court approved in State v. Daranda, 388 So.2d 759 (La.1980). 1 Defense counsel argues that the charge as to a mandatory presumption of intoxication withdrew from the jury the question of whether the defendant was negligent by being intoxicated. Our review of the charges reveals, however, that the jury was correctly instructed on both matters. From the instructions it is clear that the State was required to prove criminal negligence and that a finding that the defendant was intoxicated did not necessarily require the jury to find that she was criminally negligent. Therefore, we conclude that the issue of criminal negligence was properly submitted to the jury and that the instructions given should not have mislead or confused the jury. This assignment is without merit.
In her second assignment the defendant argues that the trial court should have excluded the results of the chemical analysis of her blood because the analysis was not "performed according to methods approved by the Department of Public Safety," as required by La.R.S. 32:663.
The legislature and this court have recognized the importance of establishing safeguards to guarantee accuracy in chemical testing. In the same legislation which authorizes the chemical analysis of a motorist's blood and creates a legal presumption of intoxication in the event his blood contains the requisite per cent of alcohol, the legislature conditioned the validity of the chemical test upon its having been performed according to methods approved by the Department of Public Safety. La.R.S. 32:663. In considering previous attacks upon the validity of the statutory design, this Court has expressed the opinion that, in order for the State to avail itself of the statutory presumption of a defendant's intoxication without violation of his constitutional due process guarantee of a fair trial, detailed methods, procedures and techniques must be officially promulgated to insure the integrity and reliability of the chemical tests including provisions for repair, maintenance, inspection, cleaning, chemical accuracy, and certification as well as proof of adherence to those methods, procedures and techniques. State v. Graham, 360 So.2d 853 (La.1978); State v. Jones, 316 So.2d 100, 105 (La.1975); cf. State v. Junell, 308 So.2d 780, 783 (La.1975).
In response to the constitutional requirements and the legislative mandate expressed by the statute, the Louisiana Department of Public Safety, promulgated methods, procedures and techniques for assuring the accuracy of the tests. See, Rules, Department of Public Safety, Breath and Blood Alcohol Analysis Methods and Techniques, 4 Louisiana Register, No. 10, p. 390 (1978). The rules and regulations are divided into thirteen detailed sections.
Section 11 of the Rules prescribes the methods according to which chemical analysis of blood shall be conducted. That section, in pertinent part, provides:
"The methods approved for blood-alcohol analysis of blood are:
a. Gas Chromatography
(1) Headspace sampling with internal standard.
(2) Direct injection with internal control.
b. Distillation Method. * * * "
Section 12 of the Rules prescribes the types of blood alcohol kits which may be used in the chemical analysis, as follows:
The evidence is undisputed that the chemical analysis of defendant's blood was performed in accordance with one of the methods approved by the department, but that the blood collection kit used was not one of the types prescribed by section 12 of the rules or a blood collection kit previously approved by the department. The blood collection kit used, however, was identical to the prescribed kits except that it contained a liquid rather than a solid anti-coagulant. The state's expert witnesses testified without contradiction that use of a liquid anti-coagulant would protect the specimen from contamination as well as the officially approved solid anti-coagulant.
In order for a chemical analysis of a person's blood to be considered valid in a criminal action or proceeding arising out of acts alleged to have been committed by him while driving under the influence of alcohol, the analysis must have been performed according to methods approved by the Department of Public Safety. R.S. 32:663 (Supp.1977). It is clear from the record that the analysis of defendant's blood was performed according to a method approved by the department. The department's rule describing the types of blood collection kits which shall be used to preserve specimens prior to analysis does not prescribe a method by which the analysis shall be performed. It merely describes the types of blood collection devices which the department considers to be reliable. Although it is a statutory foundational requirement for admission of the result of a blood test that the analysis itself be performed according to an officially prescribed method, the statute does not prohibit the introduction of test results merely because a different anti-coagulant or collection kit than that approved by the department was employed.
One of the important factors in direct analysis of specimens of blood is the protection from contamination of the specimen at the time of taking, during transportation to the chemist, and at the time of analysis. The attorney offering chemical test evidence must be able to show proper protection of the specimen within recognized standards from the time the needle was inserted into the flesh of the subject person until the chemist arrived at his ultimate conclusion after analysis. R. L. Donigan, Chemical Tests and the Law, p. 71 (1966). The department's rule prescribing approved anti-coagulants and collection kits, therefore, is an important safeguard, and scrupulous compliance with it facilitates a prima facie showing that the blood specimen was properly protected from contamination. Failure to use the type of anti-coagulant or kit on the list of those approved, however, does not require exclusion of the evidence if it can be proved by competent, admissible evidence that the collection device or anti-coagulant employed provided equivalent protection of the specimen. It is undisputed in this case that the specimen of defendant's blood was afforded an equivalent means of protection from contamination.
This assignment is without merit.
In her third assignment of error the defendant argues that the trial court erred in refusing to give a requested special charge on criminal negligence. Instead of the requested charge, the trial judge read to the jury the definition of criminal negligence contained in the Criminal Code. R.S. 14:12. A requested special charge must be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given. La.C.Cr.P. art. 807. The charge requested by the defendant was not wholly correct, but was in conflict with the definition of criminal negligence provided by the Criminal Code. On the other hand, the definition given to the jury by the trial judge from the Criminal Code was wholly correct and pertinent and did not require qualification, limitation or explanation. Accordingly, this assignment of error is without merit.
In her fourth and fifth assignments of error the...
To continue reading
Request your trial
-
Orr v. State
...health agency. See, e.g., State v. Pickering (1983) Me., 462 A.2d 1151; State v. Miller (1983) 213 Neb. 274, 328 N.W.2d 769; State v. Green (1982) La., 418 So.2d 609; State v. Erickson (1976) N.D., 241 N.W.2d 854. Our legislature has enacted similar statutes containing specific foundational......
-
State v. Booker, 42,596-KA.
...program and diminution of sentence for good behavior, may be considered in gauging excessiveness of a sentence. See State v. Green, 418 So.2d 609 (La.1982); State v. Cook, supra; State v. Laiche, 570 So.2d 168 (La.App. 5th Cir. 1990), writ denied, 576 So.2d 26 (La.1991). Ultimately, when th......
-
State Of La. v. Hood
...La.R.S. 15:571.3(A)(1). The availability of early release may be considered when reviewing sentences for excessiveness. State v. Green, 418 So.2d 609 (La.1982). Accordingly, the trial court did not abuse its vast discretion when it sentenced Defendant to fifteen years imprisonment. There is......
-
State v. Shirley
... ... 14:98. Also, in negligent homicide prosecutions, the presumption can be used to establish the fact of intoxication from which the factfinder can determine criminal negligence. State v. Green, 418 So.2d 609 (La.1982). Consequently, it has been held that the wrongful introduction of a chemical analysis test result, which by law presumes a defendant to be intoxicated, is so prejudicial to the defendant that a resulting conviction cannot stand, even if there is other evidence of ... ...