State v. Jones
| Decision Date | 25 June 1975 |
| Docket Number | No. 56140,56140 |
| Citation | 316 So.2d 100,96 A.L.R.3d 735 |
| Parties | STATE of Louisiana v. Sammy H. JONES. |
| Court | Louisiana Supreme Court |
Ernest E. Hartenstine, Asst. Public Defender, for defendant-relator.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Charles W. Borde, Jr., Durbin, Durbin, Borde & Fogg, Denham Springs, for plaintiff-respondent.
Relator was convicted after a bench trial in the City Court of Denham Springs of driving while intoxicated, a violation of La.R.S. 14:98, and was sentenced to pay a fine of $175.00 or serve thirty days in jail. Upon relator's application we granted writs to determine the proper interpretation of La.R.S. 32:663 as it relates to the circumstances of this case and the objections based thereon during the trial of this matter. In related cases also being decided today, the same issue, as it relates to those cases, will be decided. See State v. Karol, La., 316 So.2d 106; State v. McGuffey, La., 316 So.2d 107; and City of Monroe v. Robinson, La., 316 So.2d 119.
On November 16, 1974 a pick-up truck being driven by relator collided with an automobile being driven by another motorist. The passenger in the automobile struck by the relator's vehicle was able to obtain the license number of the vehicle and the incident was immediately reported to the local police. Fearing that the relator would be outside of their jurisdiction by the time they were able to locate him by the vehicle description, the local officers sent two State Troopers who happened to be present at the time of the report to search for the vehicle. The troopers located the relator and returned him to the city police station, where a Photo-Electric Intoximeter test (PEI) designed to measure the alcohol concentration in the blood was administered. The results of relator's PEI test revealed that the alcohol concentration in his blood was sufficient to render applicable the presumption that he was under the influence of alcoholic beverages found in La.R.S. 32:662, subd. A, par. 1c. After trial on the merits, the court found the relator guilty as charged, '* * * based on the PEI test that has been admitted into the record. * * *' At the time that the State offered the test results report into evidence, the relator objected to the introduction on grounds that the report was inadmissible because the State did not introduce the permit from the state department of health certifying that the person who administered the test was qualified and authorized to perform such test, as he contends is required by La.R.S. 32:663. Relator further objected to the introduction of the contents of the report on the basis that the State failed to show that the test was performed according to methods approved proved by the state department of health, which showing he contends is also required by La.R.S. 32:663. La.R.S. 32:663 provides:
(Emphasis here and elsewhere supplied.)
The State argues in brief that the requirements of La.R.S. 32:663 were met during the relator's trial, inasmuch as the operator who administered the test testified that he was certified by the department of health to do so and because the test was performed pursuant to a procedure set forth by the Louisiana Health and Human Resources Administration (the state agency which carries out the function of the state department of health) and promulgated in November, 1974. The State argues:
Initially we will consider the relator's argument that the State's failure to physically procuce the health department permit authorizing the operator to administer the PEI test renders error the court's ruling allowing admission of the report into evidence.
La.R.S. 15:436, setting forth the 'best evidence' rule applicable in criminal prosecutions, provides:
'The best evidence which from the nature of the case must be supposed to exist, and which is within a party's control, must be produced.'
The testimony of the operator who administered the PEI test clearly indicates that the permit issued by the 'health department,' which he claimed to have, was not of a permanent character but was such that recertification was required at some unstated intervals. This factor alone contributes to our determination that the permit or certificate itself is the best evidence of the operator's qualifications and authority to administer the PEI test. Mere testimony that the operator-witness possesses such a certificate is not enough in the face of relator's insistence that the certificate be produced; inspection by the relator of the permit or certificate would show on its face whether the operator was certified to render the PEI test At the time that the relator submitted to the procedure.
The implication of the operator's testimony in this case was that he possessed a permit from the appropriate authority under which he was authorized, at the time in question, to administer the PEI test. Nevertheless, the testimony is not Totally clear and unequivocal that certification related to the exact point in time at which relator was tested. This temporal element is but one factor about which relator is entitled to satisfy himself regarding the validity of the operator's certification. Relator is entitled to hold the State to compliance with the 'best evidence' rule and insist on production of the operator's permit itself. Upon relator's insistence, the trial court erred in admitting the test results report without requiring the State to show, by the best evidence 'supposed to exist' and in the State's 'control', that the operator was appropriately certified by the proper authority at the time he administered the PEI test, as required by La.R.S. 32:663.
Next, we turn to relator's contention that the introduction of the test results report was error for the additional reason that there was no showing that the test was performed in conformance with methods approved by the state department of health. As we noted proviously, the State argues that the PEI test was conducted according to the method approved by the Louisiana Health and Human Resources Administration in November of 1974. In brief the State argued that the method for conducting breath tests approved and promulgated by the Administration was nothing more than a recertification of methods approved by the predecessor governmental agency responsible for approving satisfactory methods.
Nowhere, in the record does the purported November, 1974 procedure allegedly promulgated by the Louisiana Health and Human Resources Administration appear; nor does the record contain evidence that procedures and methods were ever promulgated by the Administration's predecessor in this area, the Department of Health. However, attachments appended to an Amcus curiae brief filed by Department of Public Safety appear to correspond to the two pronouncements to which the State refers. The first document is a letter dated September 19, 1969 from George H. Hauser, M.D., Director of the Bureau of Laboratories, to the Assistant Director of the State Police Crime Laboratory. Therein it is stated that the techniques of breath analysis taught in the forty-hour course given by the Division of State Police and measured by the Photo-Electric Intoximeter 'is hereby approved by the Louisiana State Department of Health.' The second document, a pronouncement by the Administration which is dated December 19, 1974 (not November, 1974), states that '(t)he method approved for breath testing for alcohol is the Photo-Electric Intoximeter Test performed with the instrument manufactured by Intoximeter, Inc., St. Louis, Missouri or any equivalent machine which is approved by the Bureau of Laboratories, State Division of Health.'
Assuming, merely for the sake of discussion, that the Court can take judicial notice of these documents, it would be necessary for us to determine if the 'methods' contained in them constitute adequate compliance with the dictates of La.R.S. 32:663. Since these documents are clearly attempts on the part of the to comply with the statutory provision mandating the department to approve 'satisfactory techniques or methods' for conducting chemical analyses of blood, breath, urine or other bodily substance, we must decide the effect of these efforts, bearing in mind that the results obtained by use of these...
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