State v. Welch

• Decision Date: 22 March 2013
• Docket Number: No. 2012 KA 1531.,2012 KA 1531.
• Citation: 115 So.3d 490
• Parties: STATE of Louisiana v. Dennis M. WELCH.
• Court: Court of Appeal of Louisiana — District of US

115 So.3d 490

STATE of Louisiana

v.Dennis M. WELCH.

No. 2012 KA 1531.

Court of Appeal of Louisiana, First Circuit.

March 22, 2013.

Walter P. Reed, Covington, LA, Kathryn W. Landry, Baton Rouge, LA, for Appellee, State of Louisiana.

Vincent F. Wynne, Jr., Shannon K. Lowry, Covington, LA, for Defendant/Appellant, Dennis M. Welch.

Before WHIPPLE, C.J., McCLENDON and HIGGINBOTHAM, JJ.

WHIPPLE, C.J.

[1 Cir. 2]The defendant, Dennis M. Welch, was charged by amended bill of information with one count of fourth-offense operating a vehicle while intoxicated ¹ (DWI), a violation of LSA–R.S. 14:98, and pled not guilty. Following a bench trial, the defendant was found guilty as charged. He was fined $5,000.00 and sentenced to twenty-five years at hard labor, with the first two years of the sentence to be served without benefit of probation, parole, or suspension of sentence. He now appeals, contending the trial court: (1) abused its discretion in denying the motion to suppress AIT Laboratories' certificate of analysis; (2) erred in allowing the testimony of Dr. George Behonick; (3) erred in admitting into evidence AIT Laboratories' certificate of analysis; (4) erred in finding the evidence of record sufficient to support a conviction without AIT Laboratories' certificate of analysis; (5) erred in considering predicate DWI offenses older than ten years; and (6) abused its broad discretion by imposing an excessive sentence. For the following reasons, we affirm the defendant's convictionand sentence, and remand for an evidentiary hearing on the issue of waiver of a jury trial.

FACTS

St. Tammany Parish Sheriff's Office Deputy Jamie Raquet testified at trial. On March 17, 2011, at approximately 6:00 p.m., he investigated a vehicle crash on Louisiana Highway 437 at North Fitzmorris Road, north of Covington. The crash involved one vehicle, driven by the defendant. Deputy Raquet noted that the [1 Cir. 3]vehicle was off the east side of the roadway, overturned on its passenger side. The vehicle had travelled through a ditch, impacted on the driver's side, overturned on its side, and rotated counterclockwise, finally coming to a stop in a barbed wire fence. Deputy Raquet detected a strong odor of an alcoholic beverage emanating from the vehicle's interior. Deputy Raquet did not see the emergency brake on the vehicle pushed down.

Covington Police Department Sergeant Jimmy Slade had witnessed the crash. He saw the vehicle travelling forty miles per hour as it ran through a stop sign. He saw the defendant lose control of the vehicle as the defendant attempted to turn southbound and cross two lanes of traffic before the vehicle entered a ditch.

The defendant had no observable signs of injury and stated he was not hurt. According to Deputy Raquet, the defendant's speech was slurred, the defendant stuttered, and the defendant's movements were lethargic and slow. The defendant claimed he had only “drank a beer at lunch time,” but he also stated that he had taken the prescription medications Paxil, Klonopin,²Fioricet, and another medication “morning and lunch.” The defendant claimed his vehicle had defective brakes and that he had pushed the emergency brake, but it had not worked.

The defendant stated he had been travelling from River Forest subdivision to Fairhaven Road, a distance of approximately twelve miles. The defendant claimed he left at 3:30 p.m. The defendant thought the accident had occurred at 4:00 p.m., when, in fact, he actually had crashed the vehicle at approximately 5:45 p.m. The defendant consented to a blood and urine test in the hospital, but he could not stand up without swaying back and forth. The defendant staggered on [1 Cir. 4]the way to the bathroom to provide a urine sample and complained of a pain in his side. Also, at the time of the accident, his driver's license was suspended.

Based on observations of the defendant, the manner in which he was speaking, his lethargic movements, and his problem with normal motor skills, Deputy Raquet concluded that the defendant was operating the vehicle while under the influence of his prescription medications. Thus, Deputy Raquet arrested him for DWI.

DISCUSSION

Admissibility of AIT Laboratories' Certificate of Analysis

(Assignment of Error No. 1)

In assignment of error number 1, the defendant argues the trial court erred in denying his motion to suppress the certificate of analysis by AIT Laboratories (“AIT”) because his blood sample was not transported for analysis in accordance with La. Administrative Code, Title 55, part I, § 581.

A motion to suppress is available to question the admissibility of chemical test results that can result in the legal presumption of intoxication. State v. Shirley, 2008–2106 (La.5/5/09), 10 So.3d 224, 232. Before the State may avail itself of the statutory presumption of the defendant's intoxication arising from chemical analysis of his blood, it is incumbent on the State to show strict compliance with the detailed procedures adopted to secure the efficacy and reliability of the chemical test. Id.

Prior to amendment in May of 2011, La. Administrative Code, Title 55, part I, § 581 provided, in pertinent part:

C. The sample taken for analysis should be refrigerated and delivered to a designated collection site within 24 hours following the end of the collecting officer's shift. It shall then be transported to the laboratory utilized for analysis at the earliest opportunity after collection, not to exceed 7 days.

[1 Cir. 5]Prior to trial, the defendant moved to suppress the results of the analysis of his blood sample, arguing that the documentation from the State indicated that twenty-two days had passed between the drawing of the blood and its receipt for testing. At the hearing on the motion, the defense introduced a report from AIT indicating the sample tested was collected on March 17, 2011, and received on April 8, 2011. The State introduced documentation indicating that the sample was received by the Louisiana State Police Crime Laboratory on March 23, 2011. Additionally, the State presented the testimony of Louisiana State Police Crime Laboratory Forensic Analyst Robert Spinks, who stated that the sample was received by the Louisiana State Police Crime Laboratory on March 23, 2011. He conducted a blood alcohol test on the sample, which was negative. He further indicated the Louisiana State Police Crime Laboratory had a contract with AIT, a toxicology firm from Indianapolis, to help reduce the backlog of items to be tested. At the conclusion of the trial, the trial court denied the motion to suppress.

When a trial court denies a motion to suppress, factual and credibility determinations should not be reversed in the absence of a clear abuse of the trial court's discretion, i.e., unless such ruling is not supported by the evidence. See State v. Green, 94–0887 (La.5/22/95), 655 So.2d 272, 280–81. However, a trial court's legal findings are subject to a de novo standard of review. See State v. Hunt, 2009–1589 (La.12/1/09), 25 So.3d 746, 751.

The trial court did not err or abuse its discretion in denying the motion to suppress the results of the analysis of the blood sample obtained from the defendant. La. Administrative Code, Title 55, part I, § 581 was not violated. The record demonstrates that the sample at issue was “transported to the laboratory utilized for analysis” within 7 days of collection. While the sample was subsequently tested for [1 Cir. 6]the presence of other drugs by AIT later than 7 days after collection, this testing occurred at a laboratory subcontracted with the State Police laboratory due to a backlog at the Louisiana State Police Crime Laboratory.

Thus, this assignment of error lacks merit.

Admissibility of Dr. George Behonick's Testimony

(Assignment of Error No. 2)

In the first part of assignment of error number 2, the defendant argues the trial court erred in allowing the simultaneous broadcast testimony of Dr. George Behonick because the State failed to provide timely written notice to the defense under LSA–R.S. 15:502(B).

Louisiana Revised Statute 15:502 provides, in pertinent part:

A. The court may authorize the following persons to testify by simultaneous transmission through audiovisual equipment, if such technology is available in the courtroom, during any criminal proceeding, ...:

(1) Employees of criminalistics laboratories.

...

B. The party seeking to offer testimony as provided in Subsection A of this Section shall provide written notice to opposing counsel not less than thirty days prior to the commencement of the proceeding.

...

D. Nothing in this Section shall be construed as to prohibit the use of a subpoena to compel any such witness to physically appear and testify in person. When the attorney for the defendant, or the defendant acting in his own defense, requests that a subpoena be issued to the person who performed the examination or analysis, the request shall be in writing or shall contain a certification that the attorney or the defendant intends in good faith to conduct the cross-examination.

On February 13, 2012, the State moved to present the testimony of Dr. George Behonick, an expert witness from a crime laboratory, by simultaneous [1 Cir. 7]broadcast transmission. On February 17, 2012, the defendant filed a motion opposing the use of simultaneous broadcast transmission.

The defendant's motion set forth that on September 29, 2011, the defense had notified the State that the defense wanted the toxicologist who conducted the blood analysis to appear in person in open court. The defendant further alleged that the State had failed to give the defense the required 30–day notice prior to the February 29, 2012 trial date. Additionally, the motion set forth that the defense had requested a subpoena of the toxicologist who performed the blood analysis.

The motions were heard on February 29, 2012. The State indicated it had three officers ready to testify and asked the court to keep the...