Essential Cases to Know in Handling Challenges to Scientific Evidence (Part Two)

Part One

September/October 2003

By Leonard Stamm

The Fourth Amendment

No discussion of cases that may be used to challenge scientific evidence would be complete without acknowledging challenges based on Fourth Amendment cases to the search and seizure of samples of breath, blood, urine, or of the defendant’s person. At the same time, this area is the subject of treatises, numerous cases, and articles on a subject that is too broad to be adequately covered in this article. This article will mention just a few cases of interest here out of the hundreds of potentially relevant cases.

Illegal Lane Changes

There are cases all over the country addressing the legality of stops based on an officer’s claim of having witnessed an illegal lane change. Many jurisdictions prohibit a person from changing lanes before determining that it is safe to do so. Many also require a driver to stay in a single lane “as nearly as practical.” Often officers conduct stops for what appear to be petty, de minimus violations, for example touching a shoulder line or briefly crossing it by inches with one tire. These cases often turn on their facts. Edge line crossings are tolerated by the courts more than center line crossings. The time of day, weather conditions, and presence of other traffic on the roadway can also be relevant factors.

Cases holding stops illegal include: United States v. Colin, 314 F.3d 439 (9th Cir. 2002)(car drifted onto right fog line for 10 seconds, signaled, changed lanes to the left, drifted to double yellow line, signaled and changed back to right lane – excellent discussion of weaving within the lane); State v. Tarvin, 972 S.W.2d 910 (Tex.App. 1998) (car “touch[ed] the right-hand white line”); Rowe v. State, 769 A.2d 879 (Md. 2001)(vehicle crossed edge line briefly and hit rumble strip, went back in lane and touched edge line again); State v. Williams, 619 N.E.2d 1141 (Oh.App. 1993) (crossing the lane dividing line by one tire width on two occasions over a two mile stretch of highway); State v. Caron, 534 A.2d 978 (Me.1987) (brief, one time straddling of the center line of an undivided highway); United States v. Gregory, 79 F.3d 973 (10th Cir.1996)(single occurrence of moving to the right shoulder of the roadway); Crooks v. State, 710 So.2d 1041 (Fla.App.1998)(car drifted over right line on three occasions, no information how far); State v. Lafferty, 967 P.2d 363 (Mont. 1998)(crossed fog line twice and drove on fog line once); State v. Cerny, 28 S.W.3d 796 (Tex.App.2000)(swerved over right hand edge line three or four times); Hernandez v. State, 983 S.W.2d 867 (Tex.App.1998)(a single instance of crossing a lane dividing line by 18 to 24 inches into a lane of traffic traveling the same direction, without any unsafe driving); Jordan v. State, 831 So.2d 1241 (Fla.App. 2002)(traffic crossed demarcating lines and swerved back into lane for no apparent reason – noone placed in danger); United States v. Gastellum, 927 F.Supp. 1386 (D.Colo. 1986)(single instance of weaving over line insufficient for stop); State v. Brite 698 N.E.2d 478 (Oh. 1997)(vehicle drove over the right-hand edge lines of the road on two occasions during the span of a mile); United States v. Smith, 799 F.2d 704 (11th Cir. 1986)(right side of the wheels crossed over the white painted edge line approximately six inches into the emergency lane, brought back into the center of the lane and drifted over to the white painted center line without touching it and weaved an additional two times). Cases upholding stops include: Commonwealth v. Howard, 762 A.2d 360 (Pa.Super.2000)(vehicle crossed, on two occasions, the edge line by one-fourth to one-half of the vehicle’s width, being driven down the center of an unmarked highway and crossing the center line). United States v. Garcia, 205 F.3d 1182 (9th Cir.2000)(vehicle “swerving slightly within its lane, not breaking the lane lines,” left side tires crossing into the number one lane and back again, and, as it passed a truck, swerving “over the center yellow line into the paved shoulder throwing dirt and debris up,” before it “slightly jerked back” into its lane and continued to pass the truck); United States v. Cervine, 169 F.Supp.2d 1204 (D.Kan.2001)(defendant crossed the line separating the driving lane from the passing lane one time, for about two seconds); United States v. Barahona, 990 F.2d 412 (8th Cir.1993)(vehicle changed lanes without using a turn signal and went “partially” onto the shoulder); Zimmerman v. North Dakota Department of Transportation Director, 543 N.W.2d 479 (N.D.1996)(driving across the center line of the roadway on one occasion); United States v. Botero-Ospina, 71 F.3d 783 (10th Cir. 1995), cert. denied, 518 U.S. 1007 (1996)(the car swerved from the outside lane, straddled the center line, and swerved back to the outside lane); Edwards v. State, 792 A.2d 1197 (Md.App. 2002)(vehicle crosses center line a number of times); Dowdy v. State, 798 A.2d 1 (Md.App. 2002)(vehicle partially in left lane 2 times for 1/10 mile); and State v. Hodge, 771 N.E.2d 331(Oh.App. 2002)(minor violation of edge line is cause for stop).

The Second Stop

Often in drunk driving investigations, the officer stops a person for a minor traffic violation and then upon detecting the odor of an alcohol beverage requires the person to exit the car. Officers that are NHTSA trained are trained to conduct a mini-investigation prior to order a drunk driving suspect out of their car, in order to determine whether they are going to do so. Principles and Techniques of Training in Standardized Field Sobriety Testing, Student-Instructor Manual, U.S. Dept. of Transportation (2002), Session VI, Phase Two, Personal Contact Phase. The officer is specifically trained to ask divided attention questions to see how the person reacts, asks to see license and registration and how well the person provides them, and may offer some tests such as the alphabet or count backwards, while the person is still seated in their car.

The Supreme Court has made it clear that the detention of a person “must be temporary and last no longer than is necessary to effectuate the purpose of the stop.” Florida v. Royer, 460 U.S. 491, 500 (1983). When a police officer stops a person for a minor traffic violation and then continues to detain the person to investigate a more serious crime, such as drunk driving, some cases hold there is a second stop which must be supported by independent articulable reasonable suspicion. E.g., Ferris v. State, 735 A.2d 491 (Md. 1999); Charity v. State, 753 A.2d 556 (Md.App. 2002), cert. denied, 759 A.2d 231 (Md. 2000); Pryor v. State, 716 A.2d 338 (Md.App. 1998); State v. Ballard, 617 N.W.2d 837 (S.D. 2000); Green v. State,802 A.2d 1130 (Md.App. 2002), cert. granted, 810 A.2d 961 (Md. 2002); Munafo v. State, 660 A.2d 1068 (Md.App. 2000); Snow v. State, 578 A.2d 816 (Md. App. 1990). In Ferris, as well as the other cases cited, the courts have agreed that a detention longer than is necessary to process the issuance of the citation for which the stop was initially made must be justified separately. In Ferris, the court expressly held that requesting the person to exit the car is a second seizure of the person, and distinguished the case of Pennsylvania v. Mimms, 434 U.S. 106 (1977), which held that a person can be required to exit a vehicle without any additional justification, in furtherance of officer safety. None of these cited cases are drunk driving cases.

One case that accepted that the removal of the person from the car for the purpose of performing standardized field sobriety tests was a second stop needing separate justification in the drunk driving context was People v. Rizzo, 622 N.W.2d 319 (Mich.App. 2000). The court rejected the prosecution argument that the police were authorized to have the person exit the car under Pennsylvania v. Mimms, 434 U.S. 106 (1977), since the officer never articulated a public safety reason, as is arguably required by Mimms, for the exit from the car. Nonetheless, the court held that the strong odor of intoxicants, standing alone, was sufficient objectively reasonable suspicion of driving impaired to justify requiring a person who had been pulled over for a broken tail light to exit her vehicle to perform field sobriety tests.

Rizzo appears to be distinguishable in the case where the officer on cross-examination admits that a strong odor of an alcohol beverage may be caused by recent imbibing and is not necessarily indicative of impairment and where the officer admits that proper investigative procedures designed to determine whether to order the person out of the car were neglected. In State v. Spillers, 2000 WL 299550 (Ohio App. 2000)(unreported), the court concluded that there was insufficient articulable reasonable suspicion to order the defendant out of his car to perform standardized field sobriety tests where the stop was for de minimus lane violations and the defendant admitted a few beers and had a slight odor of an alcohol beverage.

In City of Hutchinson v. Davenport, 54 P.3d 532 (Ka. 2002), the court held that the odor of alcohol beverage and bloodshot eyes combined with having lied to police did not constitute sufficient articulable reasonable suspicion to support a stop. The defendant was in the police station to pick up his daughter and an officer detected an odor of an alcohol beverage on his breath and observed bloodshot eyes. He did not have slurred speech or any other indicia of impairment. After an officer advised him not to drive, he indicated he would be walking home, to Wichita, quite some distance away. After waiting about five minutes by his vehicle, the defendant got in it and began to drive home. An officer followed him but did not see any erratic driving. The court said, “Alcohol on one’s breath alone does not provide a reasonable suspicion to support a stop, nor does the statement by Davenport that he was walking.” Id. at 535.

In Bramble v. State, Dept. of Justice, Motor Vehicle Div., 982 P.2d 464 (Mont. 1999), the court found insufficient reasonable articulable suspicion to conduct field sobriety tests where the officer responded to a report of a suspected drunk driver, the defendant had crossed the center of the highway briefly, and was traveling at 65 miles an hour in a 35 mile an hour zone. The driver denied drinking and the officer detected no odor. The court relied on Hulse v. State, Dept. of Justice, Motor Vehicle Div., 961 P.2d 75 (Mont.1998) which had held that field sobriety tests are a search requiring reasonable articulable suspicion.

On the other end of the analytical spectrum are State v. Nagel, 880 P.2d 451 (Or. 1994) and People v. Carlson, 677 P.2d 310 (Colo.1984), which require the officer to have probable cause before administering standardized field sobriety tests.

Probable Cause to Arrest for Odor Alone

The following cases have held the evidence was insufficient to justify an arrest for drunk driving where the only objective evidence of impairment was the odor of an alcohol beverage. Saucier v. State, 869 P.2d 483 (Ak.App. 1994)(slight weaving across line, “normal” odor of alcohol beverage, admission of couple drinks, and refusal of field tests); Keehn v. Town of Torrington, 834 P.2d 112 (Wyo. 1992)(summary judgment affirmed in suit against officer for releasing defendant who subsequently killed two people); State v. Kliphouse, 771 So.2d 16 (Fla.App. 1999)(unconscious motorcyclist who did not cause accident had odor of alcohol beverage); State v. Taylor, 444 N.E.2d 481 (Oh.App. 1981)(speeding and odor of alcohol beverage). The court in Taylor said:

The mere odor of alcohol about a driver’s person, not even characterized by such customary adjectives as “pervasive” or “strong,” may be indicia of alcohol ingestion, but is no more a probable indication of intoxication than eating a meal is of gluttony. For better or worse, the law prohibits drunken driving, not driving after a drink.

444 N.E2d at 482.

In People v. Boomer, 757 N.E.2d 960 (Ill.App. 2001), rev. denied, 766 N.E.2d 241 (Ill. 2002), the court ruled that the strong odor of alcohol on the breath of a person who had been involved in a motorcycle accident, did not constitute probable cause to believe the person was under the influence. A similar conclusion was reached by the Colorado Supreme Court in People v. Roybal, 655 P.2d 410 (Colo. 1982).

Blood Tests

In Schmerber v. California, 384 U.S. 757 (1966), the Supreme Court approved the forcible extraction of blood without a warrant where the state had probable cause to seize the Defendant’s blood for an alcohol test and established that due to the dissipating nature of blood alcohol there was no time to obtain a search warrant. The police acted within the Fourth Amendment requirement of reasonableness when they took the defendant to a medical facility, where the risk of infection was minimized, to have blood drawn, even though they did not obtain a warrant which would normally be required for this type of search. The Court was careful to limit its holding to the facts of the case before it, stating:

It bears repeating, however, that we reach this judgment only on the facts of the present record. The integrity of an individual’s person is a cherished value of our society. That we today told that the Constitution does not forbid the States minor intrusions into an individual’s body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions.

Schmerber, 384 U.S. at 772.

Police have attempted to rely on Schmerber to justify obtaining a blood sample to obtain evidence of drug and controlled dangerous substance use, where the evidence dissipates more slowly than blood alcohol, and where there may be an opportunity for police to obtain a warrant. A number of the courts that have considered this issue appear to be in agreement that to extract blood for drug testing, as opposed to alcohol testing, a warrant is required. State v. Jones, 895 P.2d 643 (Nev.1995); United States v. Pond, 36 M.J. 1050 (U.S. Air Force Ct. of Military Rev.1993)(obtaining urine sample without advising defendant under California implied consent law or obtaining warrant violated Fourth Amendment – excellent discussion of implied consent and Scmerber); State v. Moylett, 836 P.2d 1329 (Or. 1992)(three blood samples obtained after defendant refused alcohol test – two samples taken pursuant to warrant allowed in non-duii prosecution; no samples allowed on duii count); State v. Flannigan, 978 P.2d 127 (Ariz. App. 1999)(where there was no evidence defendant consented to blood draw for drugs, state failed to show exigent circumstances justified warrantless search).

Some jurisdictions allow the defendant to choose the type of alcohol test to be administered, blood, breath or urine. In California, requiring a blood test of drunk driving suspects who consented to take either breath or urine, a choice permitted by statute, was held to violate the Fourth Amendment. Nelson et al. v. City of Irvine, 143 F.3d 1196 (9th Cir. 1998). The court said:

When an arrestee has agreed to submit to a breath or urine test which is available and of similar evidentiary value, the government’s need for a blood test disappears. Under such circumstances, it is unreasonable to require a blood test and the Fourth Amendment is violated. Further, when a DUI suspect agrees to take an available alternative test of equal evidentiary value, the risk that evidence will be lost disappears and the exigent circumstance that excused the police from obtaining a warrant likewise disappears, rendering a warrantless nonconsensual blood test in such circumstances unconstitutional.

Nelson, 143 F.2d at 1207.

Statutory and Regulatory Requirements for the Test

Many states have statutory or regulatory requirements that must be satisfied before a breath or blood test for alcohol may be admitted in evidence. The “Accardi doctrine” is widely followed. Derived from the case of United States ex Rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954), it simply stands for the rule that administrative agencies must follow their own regulations. Courts will also generally defer to an agency’s interpretation of its own rules. Bowles v. Seminole Rock, 325 U.S. 410 (1945).

In many states, the foundation for the admission of a breath test is carefully prescribed by applicable statutes and/or regulations and the failure to comply can result in exclusion of the test result. State v. Deimeke, 500 S.W.2d 257 (Mo.App. 1973)(statutes and regulations required strict adherence to manufacturer’s operating instructions, instrument repaired after defendant’s test, not able to show if functioning properly on date of test); State v. Rolison, 733 P.2d 326, 329 (Haw.Ct.App.1987) (state must lay foundation showing instrument was in proper working order); State v. Fairleigh, 490 So.2d 490 (La.Ct.App.1986)(“this record is devoid of any evidence concerning the proper chain of evidence, the qualifications of the person conducting the test, the type of test utilized and whether the method of testing adhered to the acceptable methods or procedure promulgated by the Department of Public Safety”); Moser v. State, 369 N.W.2d 650 (N.D.1985) (police officer’s failure to start breathalyzer device at zero violated required procedures); State v. Hall, 315 N.E.2d 504 (Oh. 1973) (breathalyzer equipment not shown to be in proper working order where simulator solution was more than three months old at time of test in violation of regulations); State v. Schwalk, 430 N.W.2d 317 (N.D.1988)(failure to show compliance with regulations regarding blood collection, specifically to show blood sample properly inverted to mix preservatives and anti-coagulants); State v. Rains, 735 N.E.2d 1 (Ohio App. 1999)(substantial compliance with regulations required for admission of test in “per se” prosecution); Com. v. Barbeauin , 585 N.E.2d 1392 (Mass. 1992)(state required to show periodic testing program as required by statute and regulation before test is admitted); People v. Hanna, 773 N.E.2d 178 (Ill.App. 2002)(failure to comply with regulatory requirement to test breath test instruments required suppression of tests even though similar tests had been run by NHTSA); State v. Busch, 576 N.W.2d 904 (Wis. 1998)(compliance with regulations leads to presumption of accuracy and reliability – since state had tested Intoxilyzer 5000 Model Series 6400 it did not have to test Intoxilyzer 5000 Model Series 6600 which was analytically similar); State v. Bird, 2002 WL 31525669 (Iowa App. 2002)(unreported)(failure to follow regulations regarding PBT required suppression of both PBT and intoxilyzer results which flowed from them).

Some states require strict compliance with statutory and/or regulatory requirements. State v. Matsuda, 836 P.2d 506 (Haw.App.1992); Ringsaker v. Director, North Dakota Dept. of Transp., 596 N.W.2d 328 (N.D. 1999)(requiring either strict compliance with regulations, or expert testimony). Other states allow for “substantial,” as opposed to “strict” compliance with applicable regulations. Dougherty v. State, 2003 WL 292135 (Ga.App. 2003); State v. Lake, 2003 WL 169965 (Ohio App. 2003)(substantial compliance not shown where calibration solution certificate did not comply with Ohio rule of Evidence, Rule 1005, and was therefore inadmissible); Potts v. State, 22 S.W.3d 226 (Mo.App. 2000); State v. Garcia, 965 P.2d 508 (Utah App. 1998). In some cases, the state was required to comply with regulations beyond a reasonable doubt. People v. Sesman, 521 N.Y.S.2d 626 (1987); Atkinson v. State, 871 S.W.2d 252 (Tex.Ct.App. 1994).

In some states, if the state is unable to demonstrate compliance with applicable regulations they can attempt to use common law principles to admit the test results. People v. Williams, 121 Cal.Rptr.2d 854 (Ca. 2002)(allowing alternative foundation of “(1) properly functioning equipment, (2) a properly administered test, and (3) a qualified operator” if regulations not followed); Robertson v. State, 604 So.2d 783 (Fla. 1992)(if the state’s blood test fails to comply with regulations regarding blood testing the court may still admit the evidence if the state shows “(1) the test was reliable, (2) the test was performed by a qualified operator with the proper equipment and (3) expert testimony was presented concerning the meaning of the test.”).

Failure to Properly Promulgate Regulations

In Ex parte Mayo, 652 So.2d 201 (Ala. 1994) the court said: “We hold the rules found in the Alabama Administrative Code at Rule 420_1_1_.01 of the Rules of the Alabama State Board of Health/the Alabama Department of Public Health do not meet the requirement of § 32_5A_194(a)(1) that chemical analyses ‘shall have been performed according to methods approved by the department of forensic sciences.'”

The court went on to say:

To establish a predicate for admitting the test results, without reliance on the statute [§§ 32-5A-194, Ala.Code 1975], there should be evidence that: “(1) the theory underlying the photoelectric intoximeter test is valid and generally accepted as such; “(2) the intoximeter is a reliable instrument and is generally accepted as such; “(3) the intoximeter test was administered by a qualified individual who could properly conduct the test and interpret the results, and “(4) the instrument used in conducting the test was in good working condition and the test was conducted in such a manner as to secure accurate results.”

See also, State v. Ripple, 637 N.E.2d 304 (Oh. 1994)(drug test results inadmissible in prosecution for driving under the influence of drugs where the director of health failed to promulgate regulations as required by statute).

In State v. Tanner, 457 So.2d 1172 (La. 1984), the Department of Public Safety had promulgated regulations, but the court found the regulations deficient. The regulations required the use of a “known alcohol standard” in recalibration of the breath test instrument but failed to provide for any means for this to be determined.

Deprivation Period

Many jurisdictions, by statute or regulation, require that the person
conducting a breath test for alcohol observe the person being tested for fifteen or twenty minutes prior to conducting the test to ensure that the person has not had anything to smoke, eat, or drink, or that the person has regurgitated, vomited, belched or placed any foreign substance in their mouth that could interfere with the test. In some states, where the statutes or regulations do not mention an observation period, it is court mandated. E.g. State v. Sensing, 843 S.W.2d 412 (Tenn. 1992).

The failure to properly observe the person has led to suppression of breath results in a number of cases. E.g., State v. Martin, 2003 WL 57311 (Tenn.Crim.App. 2003)(unreported)(defendant performing walk and turn test at beginning of twenty minute observation period); State v. Korsakov, 34 S.W.3d 534, 541 (Tenn.Crim.App.2000)(officer was doing paperwork); State v. Meredith, 833 So.2d 1125 (La.App. 2 Cir. 2002)(failure to strictly comply with fifteen minute observation requirement); People v. Haney, 507 N.E.2d 230 (Ill.App. 1987); State v. McCaslin, 894 S.W.2d 310, 311-12 (Tenn.Crim.App.1994)(defendant in back seat of patrol car); State v. Baker, 355 P.2d 806 (Wash. 1960)(observation was for fourteen minutes, test suppressed); State v. Kirn, 767 P.2d 1238 (Haw. 1989); People v. Bertsch, 538 N.E.2d 1306 (Ill.App. 1989); State v. Gardner, 967 P.2d 465 (N.M.App. 1998); Department of Highway Safety & Motor Vehicles v. Farley, 633 So.2d 69 (Fla.Dist.Ct.App.1994)(failure to show substantial compliance in license hearing); People v. Boughner, 531 N.W.2d 746 (Mich.App.1995)(operator must observe for fifteen minutes, only observed for eight minutes); State v. Cash, 526 N.W.2d 447 (Neb.App. 1995)(officer searching car during required fifteen minute observation period); State v. Carson, 988 P.2d 225 (Id.App. 1999)(failure to properly observe for fifteen minutes required suppression); but see, State v. Reed, 888 S.W.2d 117 (Tex.App. 1994)(regulation amended to require “presence” as opposed to “observation”); Manriquez v. Gourley, 130 Cal.Rptr.2d 209 (Cal.App. 2003)(officer’s testimony that he observed defendant while driving his car was not rebutted).

Modification of Approved Equipment

Many jurisdictions require equipment used in breath testing to be approved by a person appointed by statute or regulation. Where the equipment is modified or changed in some way after the approval, some courts have held the test results on the modified equipment inadmissible. Commonwealth v. McGinnis, 515 A.2d 847 (Pa. 1986); State v. Polak, 598 So.2d 150 (Fla.App. 1992).

In the following cases, the failure to follow regulations relating to blood withdrawal required suppression of the results. Turner v. State, 734 S.W.2d 186 (Tex.App. 1987); Greaves v. North Dakota State Highway Commissioner, 432 N.W.2d 879 (N.D. 1988); Gulley v. State, 501 So.2d 1388 (Fla.App. 1987). In State v. Garrett, 910 P.2d 552 (Wash.App. 1996), failure to comply with a regulation requiring that the blood sample be preserved with an anticoagulant required exclusion of the blood test result.

The Timing of the Test

In many jurisdictions, an alcohol test must be performed within either two or three hours of the person’s apprehension by police. In some jurisdictions the test is excluded if administered out of time. Some jurisdictions allow the test in evidence, People v. Wager, 594 N.W.2d 487 (Mich. 1999), while others allow it but deny the state the benefit of statutory presumptions and require the state to call an expert to explain the meaning of the test result. E.g., City of Newark v. Lucas, 532 N.E.2d 130 (Oh. 1988); Hasselhoff v. State, 508 A.2d 1030 (Md.App. 1986). Others allow the test in evidence if it can be extrapolated back to within three hours of the time of driving. State v. Allen, 570 S.E.2d 34 (Ga.App. 2002); Com. v. Senior, 744 N.E.2d 614 (Mass. 2001)(finding retrograde extrapolation reliable). Others require extrapolation back to the time of driving or the test result cannot be admitted at all. Stewart v. State, 2003 WL 57308 (Tex.App. 2003)(test result is irrelevant if not extrapolated back to time of driving under Texas statute).

In Pennsylvania, a statute that conclusively presumed guilt based on a test conducted after driving and did not allow the defendant to do a retrograde extrapolation to prove a possible BAC under the statutory limit at the time of driving was held to violate due process in Commonwealth v. Barud, 681 A.2d 162 (Pa. 1996).4

Margin of Error

Many states by regulation or otherwise recognize a tolerance or margin of error for test results. If the state’s statute criminalizes a test reading, as opposed to a BAC level, the legislature is deemed to have considered the margin of error, and found it reasonably tolerant. If the state’s statute criminalizes an actual level of BAC, then the fact finder should consider the margin of error in the defendant’s favor. Haynes v. Dept. of Public Safety, 865 P.2d 753 (Alaska 1993).5

Other Cases

In the following cases, the failure to follow pertinent statutes or regulations required exclusion of test results. State Department of Licensing v. Cannon, 50 P.3d 627 (Wash. 2002)(failure to certify thermometer as required by regulations), compare with, City of Seattle v. Allison, 59 P.3d 85 (Wash. 2002)(opposite result); State v. Setter, 763 S.W.2d 228 (Mo.App. 1989)(failure to sterilize needle as required by regulations); People v. Keith, 564 N.E.2d 901 (Ill.App. 1990)(expiration of operator’s license); State v. Ofa, 828 P.2d 813 (Haw. App. 1992)(no showing of temperature of solution as required by the statute); McManus v. Oklahoma, 695 P.2d 884 (Okla. 1985)(no records indicating compliance with maintenance requirements); Donaldson v. State, 561 So.2d 648 (Fla.App. 1990), affirmed, State v. Donaldson, 579 So.2d 728 (Fla. 1991)(record silent on maintenance); State v. Wolfe, 369 N.W.2d 458 (Iowa App. 1985); State v. Rowell, 517 So.2d 799 (La. 1988)(strict compliance with procedures followed); State v. St. Amant, 504 So.2d 1094 (La.App. 1987)(no proof presented of procedures or use of new mouthpiece).

Rules of Evidence, Other than Rule 702

All jurisdictions, as a result of legislation, rule making, or caselaw, have rules regarding the admission of evidence in addition to or in conjunction with statutory or regulatory requirements for the admission of the scientific evidence that should be considered when challenging scientific evidence. Many of the jurisdictions that have codified their rules of evidence closely track the Federal Rules of Evidence. For this reason the following discussion will primarily cite the Federal Rules of Evidence other than Rule 702 (discussed above in connection with Daubert).

Relevance and Unfair Prejudice

The Federal Rules of Evidence, common law rules of evidence, and most state rules, require that for evidence to be admitted it must be relevant, i.e., “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Federal Rules of Evidence, Rule 401; Acklin v. State, 722 So.2d 1264 (Miss.App. 1998)(breath test administered after statutory two hour limit is admissible in the absence of evidence showing it is unreliable). For example, in Jayne v. State, 24 P.3d 920 (Or.App. 2001), the Oregon Court of Appeals applied the Oregon version of Rule 401 to hold that a urine tes
t showing the presence of alcohol and drugs was properly excluded because the state was unable to correlate the test to relate to impairment at the time of driving to sustain an impaired driving charge. In State v. Homan, 732 N.E.2d 952 (Oh. 2000), the Supreme Court of Ohio held that unless the standardized field sobriety tests are performed in strict compliance with NHTSA guidelines, the tests are too unreliable to be considered by the court in deciding whether the officer had probable cause to arrest. See also, People v. Ward, 178 N.Y.S.2d 708 (N.Y.Co.Ct. 1958)(blood test excluded because alcohol swab used).

A number of decisions have addressed the relevance of partition ratios. In Guthrie v. Jones, 43 P.3d 601 (Ariz.App. 2000), the court held partition ratio was irrelevant to the per se offense but relevant to the non per se offense. See also, People v. Bransford, 884 P.2d 70(Ca. 1994)(partition ratio irrelevant in light of statute criminalizing amount of alcohol in the breath); State v. Hanks, 772 A.2d 1087 (Vt. 2001)(partition ratio relevant to non per se offense).

Essential Cases to Know in Handling Challenges to Scientific Evidence (Part Two – Continued)