Opinion
No. 66733-5-I.
Filed: April 18, 2011.
Appeal from a judgment of the Superior Court for Pierce County, No. 09-1-00055-9, Frederick W Fleming, J., entered January 22, 2010.
Affirmed by unpublished opinion per Cox, J., concurred in by Dwyer, C.J., and Grosse, J.
Michael Johnson appeals his judgment and sentence for felony driving under the influence of intoxicants (DUI). Because the State presented prima facie evidence that the blood analysis performed was free from adulteration, the court properly denied Johnson's motion to suppress that evidence. In a statement of additional grounds, Johnson claims he was denied his right to a fair trial because two witnesses involved in processing the evidence were unavailable to testify at trial. This argument does not warrant reversal. We affirm.
Washington State Patrol Trooper Gerald Ames responded to a one car collision on Interstate 5. There he found a Jeep Wrangler tangled in the cable guard rail on the side of the interstate. Johnson was standing in front of the Jeep and informed Trooper Ames that he was not injured. Johnson claimed he was run off of the road by another vehicle.
Trooper Ames performed a records check and learned that Johnson's driving status was revoked so he placed Johnson under arrest. Although Trooper Ames did not smell intoxicants, he noticed that Johnson was "lethargic, disoriented, walked with a stagger, and was unsteady on his feet." After additional observation of impairment, Trooper Ames notified Johnson that he was under arrest for DUI. Trooper Ames then transported Johnson to St. Joseph's Hospital for a blood draw.
Phlebotomist Alicia Kester performed the blood draw. Trooper Ames supplied her with two tubes in which to collect the blood samples. Kester informed Trooper Ames that the tubes were past their expiration date by almost four months, but he instructed her to use them anyway. Dr. Naziha Nuwayhid, a forensic scientist at the state toxicology laboratory, tested both blood samples nearly two years after Johnson's arrest. Only one of the results was admissible at trial and that result showed normal therapeutic levels of Clonazepam and higher than normal therapeutic levels of Oxycodone in Johnson's blood.
The State charged Johnson with felony DUI and another crime unrelated to this appeal. Before trial, Johnson moved to suppress the blood analysis evidence, arguing that the blood sample was improperly collected.
After an evidentiary hearing, the trial court denied Johnson's motion and entered written findings of fact and conclusions of law. The blood analysis evidence was admitted at trial, without objection. A jury found Johnson guilty of felony DUI and the court imposed a standard range sentence.
Johnson appeals.
MOTION TO SUPPRESS BLOOD ANALYSIS EVIDENCE
Johnson argues that the trial court erred in denying his Criminal Rule (CrR) 3.6 motion to suppress the blood analysis evidence because the State failed to present prima facie evidence that the blood samples were free from adulteration. We disagree.
We review factual findings following a motion to suppress for substantial evidence. Substantial evidence is evidence sufficient to persuade a fair-minded, rational person of the finding's truth. Unchallenged findings of fact are verities on appeal. We review the trial court's conclusions of law de novo to determine if they are supported by the findings of fact.
State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994).
Id.
Id.
Bingham v. Lechner, 111 Wn. App. 118, 127, 45 P.3d 562 (2002) (citing City of Seattle v. Megrey, 93 Wn. App. 391, 393, 968 P.2d 900 (1998)).
"'Before blood alcohol test results can be admitted into evidence, the State must present prima facie proof that the test chemicals and the blood sample are free from any adulteration which could conceivably introduce error to the test results.'"
State v. Bosio, 107 Wn. App. 462, 466, 27 P.3d 636 (2001) (quoting State v. Clark, 62 Wn. App. 263, 270, 814 P.2d 222 (1991)).
Here, the court held a CrR 3.6 hearing on Johnson's motion to suppress.
Testimony was given and the trial court concluded that the State presented prima facie proof that the test chemicals and blood sample were free from any adulteration that could conceivably introduce errors to the test results. In support, it entered the following findings of fact:
1. The use of expired tubes did not compromise the validity of the blood test results.
2. There [sic] amount of blood collected in this case was sufficient for analysis and mixture of the Sodium Chloride and Potassium Oxalate.
3. Trooper Ames personally observed Ms. Kester draw blood from the defendant's arm.
4. Trooper Ames personally observed Ms. Kester wipe the defendant's arm with providone iodine and used [sic] a clean needle.
5. The blood samples were sufficiently mixed with the anticoagulant and enzyme poison.
6. The vials used in this case had a white powder (Sodium Chloride and Potassium Oxalate), were clean, dry, intact, and the tops of the vials were gray. The vials used in this case had an inert leak proof top and were vacuumed sealed. There was an area on the vials for labeling the name and date of birth.
7. Dr. Nuwayhid was qualified and possessed a valid permit to analyze the defendant's blood sample.
Clerk's Papers at 137-38.
Johnson argues that findings 1, 2, and 5 are not supported by substantial evidence.
First, there was substantial evidence to support finding 1, that use of expired tubes did not compromise the validity of the blood test results. Dr. Nuwayhid testified at the CrR 3.6 hearing. She explained that the expiration date on the tubes refers to the shelf-life of the chemical additives in the tube and not to the vacuum seal's life. She went on to state that the additives in the tube, sodium fluoride (enzyme poison) and potassium oxalate (anticoagulant), are stable components. She testified that the anti-coagulant was properly mixed into the blood sample because the sample was still liquid when she tested it. Dr. Nuwayhid also explained that a vacuum seal will lose its effectiveness over time, but if that happens, the tube will not be able to draw blood. She explained what would happen if the vacuum seal were compromised, allowing bacteria into the sample, and the enzyme poison did not work. Bacteria growth would decrease the concentration of the Clonazepam (the benzodiazepine) and would not affect the Oxycodone (the opiate) in a blood sample.
In this case, the tube did draw blood, so there was substantial evidence that the vacuum seal was not affected by the expiration date. Additionally, there was substantial evidence that the additives were not affected by the expiration date. The blood was still liquid when tested, so the anticoagulant did not expire. And, even if the enzyme poison expired, any bacteria would have decreased the concentration of Clonazepam and had no effect on the concentration of Oxycodone in Johnson's blood sample. Given this testimony, there was substantial evidence for the trial court to find that the expiration of the tubes did not compromise the sample.
Next, Johnson challenges the trial court's finding 2, that the amount of blood collected was sufficient for mixture of the anticoagulant and enzyme poison with the blood. One of the tubes used to perform the blood analysis was not filled to its maximum capacity with blood. Dr. Nuwayhid testified that if the tube drew less blood than its capacity, the ratio of blood to additive would be greater, but that a higher ratio of anti-coagulant or enzyme poison has no adverse affect on the testing done for Clonazepam or Oxycodone. This testimony is substantial evidence that the amount of blood collected, even though less than the capacity of the tube, was sufficient for the mixture of the anticoagulant and enzyme poison with the blood.
Finally, there is substantial evidence of the trial court's finding 5 that the blood samples were sufficiently mixed with the anti-coagulant and enzyme poison. Given Dr. Nuwayhid's testimony that the blood was still liquid when she tested it, there was substantial evidence that the blood and the anticoagulant mixed sufficiently. A finder of fact could reasonably infer that sufficient mixture of the anticoagulant indicates that the enzyme poison also sufficiently mixed with the blood. Furthermore, as explained by Dr. Nuwayhid, even if the enzyme poison was not sufficiently mixed with the blood, any degradation of the Clonazepam levels in Johnson's sample would have been in his favor. And, insufficient mixture of the enzyme poison would have had no effect on the level of Oxycodone. Therefore, this finding was also supported by substantial evidence.
These findings of fact support the trial court's conclusion that the test chemicals and blood sample were free from any adulteration that could conceivably introduce errors to the test results. Therefore, the trial court did not err in denying Johnson's motion to suppress the blood analysis evidence.
Johnson argues that Dr. Nuwayhid testified that the sample was degraded and therefore the trial court should have suppressed the evidence. Dr. Nuwayhid conceded that chemical degradation was possible between the time the sample was collected and when she tested the blood. But, she made this comment while generally explaining why the drug amounts in a previously tested, inadmissible sample of the blood were higher than the admissible sample she tested later. Based on this statement, any degradation would have been in Johnson's favor. The statement does not require suppression of the evidence.
Johnson argues that the blood analysis evidence was improperly admitted because it was not relevant, as required by Washington Rules of Evidence 401 and 402. He claims that chemicals naturally degrade over time, so the test results did not accurately reflect his intoxication during the arrest.
Johnson did not raise this, or any, objection when the court admitted the evidence at trial. "Proper objection must be made at trial to perceived errors in admitting or excluding evidence and failure to do so precludes raising the issue on appeal." Johnson does not argue why we should reach this argument on appeal under RAP 2.5(a) or other authority. Therefore, we decline to address it.
State v. Thomas, 150 Wn.2d 821, 856, 83 P.3d 970 (2004) (citing State v. Guloy, 104 Wn.2d 412, 421, 705 P.2d 1182 (1985)).
STATEMENT OF ADDITIONAL GROUNDS
In a Statement of Additional Grounds, Johnson argues that he was denied a fair trial because two individuals involved in obtaining and processing the blood analysis evidence did not testify at trial. We disagree.
The due process clause of the Washington constitution requires that a defendant have a meaningful opportunity to present a complete defense. The right to present a defense includes the right to offer the testimony of witnesses and to compel their attendance, if necessary.
State v. Lord, 117 Wn.2d 829, 867, 822 P.2d 177 (1991); Const. art. I, §§ 3, 22.
State v. Maupin, 128 Wn.2d 918, 924, 913 P.2d 808 (1996) (citing Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967)).
Here, two witnesses were unavailable to testify: Kester and Estuardo Miranda, the technician who performed the first, inadmissible blood analysis. On appeal, Johnson claims that their testimony was necessary to show that the blood samples were adulterated and, therefore, not admissible.
Johnson did not seek to compel the attendance of either witness at trial. Furthermore, he does not argue that he was precluded from compelling their attendance. Nor does he cite any authority for the proposition that the State was required to call Kester or Miranda. Because he has not shown that his due process rights were violated, reversal is not required.
See State v. Young, 89 Wn.2d 613, 625, 574 P.2d 1171 (1978) (courts may assume that where no authority is cited, none was found).
We affirm the judgment and sentence.
WE CONCUR: