Opinion
No. H14H-CR-05-0590170S
June 2, 2005
MEMORANDUM OF DECISION ON MOTION FOR NON-TESTIMONIAL EVIDENCE
The State of Connecticut, pursuant to Practice Book Sections 40-32 and 40-34(6) and (9), has moved for an order directing the defendant, Brandon Henry, to submit to the taking of specimens of his hair and blood. The defendant is charged with possession of narcotics, pursuant to General Statutes § 21a-279, interfering with a peace officer pursuant to General Statutes § 53a-167a, evading responsibility pursuant to General Statutes § 14-224(b), operating under suspension pursuant to General Statutes § 14-215, and failure to bring a vehicle to a stop, an infraction, pursuant to General Statutes § 14-223b.
The state claims that in connection with an incident that occurred on or about May 9, 2005, the defendant was the operator of a motor vehicle. A passenger in that vehicle was killed and the defendant wounded by gunfire from a police officer. Physical evidence was recovered from the vehicle, to wit: hair and blood which can be compared with known samples of hair and body fluids of the defendant and passenger. The state maintains that there is probable cause to believe that the evidence sought may be of material aid in determining whether the defendant committed the offenses charged, particularly whether the defendant was the operator of the vehicle at the time of the alleged incident. The state also asserts that the evidence cannot be practicably obtained from any other source. The defendant objects to the motion on the grounds that there is no probable cause for the arrest or for the belief that the requested evidence may be material; or in the alternative, if it is material, it is cumulative or superfluous in light of other evidence the state has against the defendant. The defendant also objects to the submission of specimens because it would be an unwarranted invasion of his privacy and a blood analysis may reveal confidential information.
A hearing was held on the state's motion on May 25, 2005. At the hearing, the only evidence the state submitted, after a request by the court, was a copy of a sworn police report, dated May 9, 2005, documenting the arrest of the defendant on May 7, 2005. While this sworn report is sufficient to determine probable cause for the defendant's arrest on the foregoing charges, there needs to be more of a factual presentation to the court before it can consider granting the state's motion.
First, there should be some evidence, testimonial or documentary, that the substances the state claims have been located in the vehicle and elsewhere actually are human blood and hair. "In the absence of facts establishing, at the very least, that the `substance' found on the alleged murder weapon was in fact blood, we cannot agree that the court had sufficient facts before it to make the probable cause determination required . . ." State v. Acquin, 177 Conn. 352, 355, 416 A.2d 1209 (1979). The judicial authority, under Section 40-32 must find probable cause to believe that (1) The evidence sought may be of material aid in determining whether the defendant committed the offense charged, and (2) the evidence sought cannot practically be obtained from other sources. State v. Ostroski, 201 Conn. 534, 543, 518 A.2d 915 (1986). In Ostroski, an affidavit was submitted by the Assistant State's Attorney which attested that human blood of a specific type was the `red substance' found in the parking lot and on the knife found beside the victim's body. Id., fn. 5.
In oral argument on May 25, the state claimed blood and/or hair also had been located on the ground and on a jacket, but this was not alleged in its written motion.
Second, there must be some evidence as to the nature of the procedure by which the requested blood specimen can be taken so the court has a record to support a determination that the taking does not involve an unreasonable intrusion of the body or an affront to the dignity of the defendant. P.B. Section 40-34(9). See State v. Bethea, 1995 Ct.Sup. 4740 (1995). Such information is also necessary to assist the court in fashioning an appropriate order. P.B. Section 40-35.
For the foregoing reasons, the state's motion is denied without prejudice.
KELLER, J.