Opinion
Court of Appeals No. A-11090 Trial Court No. 3AN-10-5239 CR No. 5873
08-29-2012
ADAM OSIP JR., Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.
Appearances: Max D. Holmquist, Gorton & Logue, Anchorage, for the Appellant. Matthew A. Michalski, Assistant Municipal Prosecutor, and Dennis A. Wheeler, Municipal Attorney, Anchorage, for the Appellee.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the District Court, Third Judicial District, Anchorage, Gregory Motyka, Judge.
Appearances: Max D. Holmquist, Gorton & Logue, Anchorage, for the Appellant. Matthew A. Michalski, Assistant Municipal Prosecutor, and Dennis A. Wheeler, Municipal Attorney, Anchorage, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
COATS, Chief Judge.
Adam Osip Jr. was charged with operating under the influence (OUI). He exercised his right to an independent chemical test, and two vials of blood were drawn. Osip subsequently requested testing of the blood sample. The lab rejected the first vial of blood because the box containing it was improperly taped shut, but the lab tested the second vial. Osip moved to suppress his breath test result, claiming the improperly secured and labeled first box raised questions about the integrity of the blood sample. The trial court denied his request. The court ruled that evidence of the improperly secured box could be introduced, and that the jury could evaluate this evidence when determining the weight it should give the test results. But, the court concluded that the improper packaging did not cast such doubt on the blood sample as to require exclusion of the blood test result. We affirm the trial court's ruling.
Anchorage Municipal Code (AMC) 9.28.020(a)(2).
Facts
The Municipality of Anchorage charged Osip with operating under the influence. Osip requested an independent chemical test, and a phlebotomist drew two vials of blood. Osip later requested to have them tested. One of the vials was sent by the police to a lab of Osip's choice. The lab rejected the sample because the box containing it was not properly taped shut. The lab returned the sample to the police. The next day, the same vial was resubmitted with a new piece of tape across the box and that day's date, along with an officer's name and department serial number. The lab again rejected the vial for testing and held it in a safe. Osip's attorney instructed the lab to not test the first vial. The box containing the first vial of blood was never opened. Later, the second vial, which was properly sealed and labeled, was submitted for testing, and was tested.
Osip filed a motion to suppress his breath test result, arguing that the blood samples were mishandled, and therefore a properly preserved blood sample was not available for testing. The Municipality opposed, arguing there was nothing wrong with the samples. District Court Judge Gregory Motyka held an evidentiary hearing at which lab supervisor Scott Stender testified.
Stender testified that the first vial came to the lab in an evidence box with one side that was not sealed with tape, or the tape was loose. His lab did not go forward with testing the first vial because of this irregularity.
Stender testified that the lab later noticed that box one and box two had two different officers' names and serial numbers on the boxes, and that the labels had different dates. According to Stender, the first box was dated 9-15-10 or 9-16-10. (It is not clear from Stender's testimony which date was on the box, he testified about both.) The second box was dated 5-14-10, which was the date of Osip's arrest.
No testimony was presented regarding the vial itself inside the first box; the box was never opened. The second vial was properly sealed in its box, and the vial itself had a piece of evidence tape across the top of the vial with the officer's initials on it.
Judge Motyka denied Osip's motion to suppress the breath test. He concluded the differences between the packaging on the first box and the second would go to the weight of the evidence, not its admissibility. He found there was no justification for suppressing the test result from the second vial; all procedures were properly followed with that sample. However, Judge Motyka ruled that the defense could request a jury instruction allowing the jury to consider any discrepancy between the first box that had not yet been tested and the second box that had been.
Osip later decided to waive a jury trial. After a bench trial, Judge Motyka found Osip guilty of operating under the influence.
Discussion
Due process requires the government to make reasonable efforts either to preserve a breath sample or to offer an independent chemical test if it plans to use a breath test result against a defendant. If a defendant believes he has been denied this right, "he has the burden of showing that by virtue of some action or inaction on the part of the prosecuting authority, he was not furnished a reasonable means of verifying an adverse breath test result." If an independent sample has been preserved, the defendant has the burden of showing that "the results of an independent test in his particular case were so inaccurate that they were worthless for the purpose of impeaching or verifying the original breath test results." Osip has failed to meet this burden.
Gundersen v. Anchorage, 792 P.2d 673, 675-76 (Alaska 1990); Lauderdale v. State, 548 P.2d 376, 381 (Alaska 1976); Anchorage v. Serrano, 649 P.2d 256, 260 (Alaska App. 1982).
State v. Kerr, 712 P.2d 400, 406 (Alaska App. 1985).
Id. at 406; see Ansay v. State, 715 P.2d 1194, 1197-98 (Alaska App. 1986) ("In other words, the test we have adopted essentially requires the defendant to produce evidence strongly suggesting that the results of a test of the magnesium perchlorate saved on his behalf would not be admissible at trial. The defendant's burden is therefore the converse of the burden the state would bear in seeking to authenticate a re-test for admission into evidence."); see also Best v. Anchorage, 749 P.2d 375, 379-80 (Alaska App. 1988); Begley v. Anchorage, 711 P.2d 540, 543 (Alaska App. 1985) (The defendant "would only be harmed if the [independent test] result were inadmissible in evidence, or, regardless of admissibility, the result was inaccurate, due to the [government's] negligence in collecting and preserving a sample of [the defendant's] breath.").
Osip has not demonstrated any irregularity with the blood sample vials. He had the second vial tested and did not seek to introduce that test result at the evidentiary hearing or challenge the accuracy of it. Osip does not allege any problems with the blood samples themselves; he merely argues that the irregularity in the tape on the first box and the difference in the dates and officer names raises suspicions about the integrity of the blood samples. This is insufficient to meet his burden. While suspicious packaging can raise questions about the chain of custody of evidence, chain of custody issues normally go to the weight of the evidence, not its admissibility.
Vann v. State, 229 P.3d 197, 210 (Alaska App. 2010) (quoting Melendez-Diaz v. Massachusetts, 557 U.S. 305, 312 n.1 (2009) (quoting United States v. Lott, 854 F.2d 244, 250 (7th Cir. 1988))).
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Osip complains that after the first box was rejected by the lab and returned to the police, it was resubmitted to the lab with a newly added date and officer's name and serial number. He argues the fact that this newly added date and officer information did not match the information on the box containing the second vial raises suspicions about the integrity of the blood sample. But the date added to the first box corresponds directly with the date when Osip's lab returned the box to the police, and when the police resubmitted the box to the lab having taped the box shut more securely. Thus, the evidence offered a plausible explanation regarding the different date. Osip has not suggested any reason to believe the sample in the first box was tampered with. In fact he never asked the lab to open the box to inspect the blood vial. Without showing that the blood sample was so inaccurate that it was worthless for the purpose of impeaching or verifying the original breath test results, Osip has not met his burden of showing that he was not furnished a reasonable means of verification.
Conclusion
We AFFIRM the judgment of the district court.