State v. Rines

• Decision Date: 05 August 1970
• Citation: 269 A.2d 9
• Parties: STATE of Maine v. Walter RINES.
• Court: Maine Supreme Court

Page 9

269 A.2d 9

STATE of Maine v. Walter RINES.

Supreme Judicial Court of Maine.

Aug. 5, 1970.

Peter T. Dawson, Peter W. Culley, Asst. Attys. Gen., Augusta, for plaintiff.

Gaston M. Dumais, Lewiston, for defendant.

Before WILLIAMSON, C. J., and WEBBER, MARDEN, DUFRESNE, WEATHERBEE and POMEROY, JJ.

MARDEN, Justice.

On report under the provisions of Rule 37A M.R.Crim.Proc., and Rule 72(d) M.R.C.P., based upon the following Agreed Statement of Facts and Issues.

'On February 8, 1970, at approximately 4:00 P.M., Walter M. Rines was arrested by Maine State Police Trooper Parris McIver on Route #202 in the Town of Monmouth, County of Kennebec, State of Maine, for a violation of 29 M.R.S.A. § 1312, to wit: operating a motor vehicle while impaired by the use of intoxicating liquor. Based on the within agreed statement of facts, the Defendant has objected to the admissibility of the blood test. It is agreed that in the event the Law Court shall determine that the blood test is admissible, the Defendant will plead guilty to the pending charge, and in the event the Law Court shall determine that the blood test is inadmissible, the State will dismiss the charge with prejudice. The within statement of facts constitute the exclusive foundation with respect to the questioned admissibility of the blood test.

In connection with the arrest, Trooper McIver rendered an 'implied consent warning' in accordance with the form attached hereto, marked Exhibit #1, and incorporated by reference herein. The respondent by verbal response and signature indicated a desire to have a blood test taken at the direction of Trooper McIver. He also indicated a desire not to have a blood or urine test conducted by a physician of his own choosing. (See Exhibit #1) Pursuant to Mr. Rines' 'implied consent', Trooper McIver transported the respondent to the Augusta General Hospital, where at 5:30 P.M. on February 8, 1970, O. T. Feagin, M.D., drew a sample of the respondents' blood.

Trooper McIver provided Dr. Feagin with a B-D (Becton-Dickinson Alcohol Kit) for use in the deawing of the blood sample. Trooper McIver removed a sealed styrofoam box from a cardboard container, bearing Control No. A0003. Dr. Feagin broke one seal, opened the kit and noted that affixed to the inner lid of the styrofoam box was a 'Manufacturer's Certificate and Description of Kit Contents' which read as follows:

'Certificate of Manufacturer: This is to certify that the VACUTAINER tubes, stoppers, and contents, VACUTAINER holder, VACUTAINER needle and swab are new and have not been previously used. No alcohol is used in the manufacturing procedures for these items or in the sterilization of the VACUTAINER needle.

'Contents of the Kit:

2 32ooXF357 10ml VACUTAINER Tubes, each containing 20mg sodium fluoride and 10mg EDTA (Na2) disodiumethylenediaminetetraacetate

1 3200H VACUTAINER Holder, disposable

1 5749 VACUTAINER Multiple Sample Needle, sterile and disposable 1 Swab containing Benzalkonium Chloride Solution-Concentration 1:750 aqueous

4 Pressure-sensitive Sales (self-destructing type)

1 Direction Sheet including Consent Form and blood collection Certificates

1 Direction Sheet on use of VACUTAINER System'

Dr. Feagin checked the contents of the kit, removed the four seals provided therein, an instruction manual for the VACUTAINER System, and an instruction manual for the police officer. The contents also revealed two VACUTAINER tubes, one VACUTAINER holder, one swab and one needle. Each of the VACUTAINER tubes contained a granular white substance which Dr. Feagin recognized to be consistent in color and texture with the anticoagulant indicated on the Manufacturer's Certificate as sodium fluoride and EDTA (Na2). Using the contents of the kit, Dr. Feagin drew the blood sample in question from the respondent in the presence of Trooper McIver. Dr. Feagin then placed one seal over the end of the VACUTAINER tube containing the blood sample and noted thereon his initials, the date, the name of the arresting officer, and the name of the respondent. Trooper McIver took the same styrofoam box and placed the blood sample therein, sealing the same with two of the seals previously described. At that time, Dr. Feagin signed a Police Officer's Report contained on the exterior label of the styrofoam box and initialed the seals at either end of the box. Trooper McIver then placed his initials, the date, the time and the name of the respondent upon the seals at either end of the styrofoam box and penned in information within the area designated Police Officer's Report. (See Exhibit #2, which is incorporated by reference herein and which represents the same styrofoam box used in the instant case exclusive of the original contents and resulting blood sample.)

Trooper McIver left the respondent at the Kennebec County Jail and then proceeded to the Main State Police Headquarters in Augusta where he placed the styrofoam box containing the respondents' blood sample in a locked refrigerator-depository at which time he entered the information as to the time and date of arrest, the time and date of the drawing of the blood sample, the time and date of placing the blood sample in the refrigerator, and the name of the Defendant in a log book maintained adjacent to the locked refrigerator-depository.

At 8:00 A.M., February 9, 1970, Mr. Lawrence Roy, Chemist, Maine State Pulbic (sic) Health Laboratory, unlocked the refrigerator-depository and picked up the same styrofoam box at the State Police Headquarters in Augusta. Upon his return to the Laboratory in Augusta, Mr. Roy opened the sealed styrofoam box, examined the blood sample, and noted that there was no coagulation. Mr. Roy, being a duly qualified chemist, conducted a test and analysis of the blood sample pursuant to the modified Dubowski method for the purpose of determining the alcohol concentration therein. Mr. Roy rendered his report in duplicate to Trooper McIver on February 10, 1970, and on February 13, 1970, Trooper McIver delivered a copy of said report in hand to the respondent, Mr. Rines.

On December 12, 1969, the State Public Health Laboratory received 2000 Becton-Dickinson Blood Alcohol Kits, bearing control No. A0003. (An original kit from this same lot also bearing Control No. A0003 is included by reference herein and marked Exhibit #3.) Upon receipt of the kits, twenty kits were selected for a random sample and subjected to certain tests and analyses by State Chemists Robert Ericson, Lawrence Roy and Michael Sodano with the following finds:

1. Each kit was completely sealed.

2. The nature of the box and type of seal used makes it impossible to remove the seal without destroying the seal.

3. The styrofoam of which the box is made is so easily marked that the cement on the seal of the tape will not release from it without tearing the surface of the box or destroying the seal itself.

4. Each kit contained a manufacturer's certificate as to its contents.

5. The VACUTAINER tubes contained the amount of Sodium Fluoride and EDTA (Na2) disodiumethylenediaminetetraacetate indicated by the Becton-Dickinson Manufacturer's Certificate. The other contents of the kit conformed in every respect with the Manufacturer's Certificate.

6. The VACUTAINER tubes were not usable after testing because the anticoagulants and the vacuum were destroyed in the process of conducting the test.

7. So long as the blood-alcohol kits are kept sealed up to the time of sampling of the blood, there can be no reasonable doubt but that the contents of the kit, lot bearing Control No. A003, would conform in every respect to the Manufacturer's Certificate and description of contents.

It is also stipulated and agreed that no specific testing or analysis has been conducted by anyone on the contents of the particular blood alcohol kit utilized in drawing the blood sample in the instant case.

On the basis of the foregoing foundation, the State would then offer the testimony of the Chemist, Mr. Lawrence Roy, who would testify that in his opinion and on the basis of the tests conducted in accordance with the modified Dubowski method the alcohol concentration in the blood sample was 0.16 percent by weight (grams per 100ml.). The Defendant's objection to the admissibility of the blood test raises the following issues:

1. Does the interior label on the blood alcohol kit, which describes the contents of the kit, and the manufacturer's certificate constitute prima facie evidence or competent evidence to raise a jury question as to the nature and quality of the contents of the blood alcohol kit?

2. Is the random sampling admissible evidence with respect to the nature and quality of the contents of the blood alcohol kit used in the instant blood sample?

3. Is the random sampling a necessary or essential element of the foundation for the admissibility of the blood alcohol test?

4. Does the evidence, as a matter of law, constitute sufficient foundation for the admissibility of the results of the blood alcohol test?'

Both parties upon briefs and argument addressed themselves to the applicability of the hearsay rule of evidence.

The Becton-Dickinson Blood Alcohol Kit (B-D Kit) is not a device which purports to determine the amount of blood alcohol in a given sample by chemical and electronic means, such as the Harger Drunkometer developed in 1938, and subsequently developed similar devices (Intoximeter, Alcometer, and Breathalyzer) discussed in 'Chemical Tests and the Law' (1966) by Robert L. Donigan. It is a kit in which is assembled items, listed on the certificate of the manufacturer recited above, designed solely to take from the subject and preserve samples of blood for later analysis to determine the amount of blood alcohol present. The kit contains two glass tubes (Vacutainers) under vacuum and each sealed with a rubber stopper the top and integral part of which is a diaphragm which is pierced by the posterior end of the hollow needle only when the anterior end of...