Opinion
ID No. 1801012492
02-08-2019
STATE OF DELAWARE v. SHANE SCOTT, Defendant.
Barzilai K. Axelrod, Esquire and Dominic A. Carrera, Jr., Esquire, Deputy Attorneys General, 820 North French Street, 7th Floor, Carvel State Building, Wilmington, Delaware 19801, Attorneys for the State. James O. Turner, Jr., Esquire, Assistant Public Defender, 820 North French Street, Wilmington, Delaware 19801, Attorney for Defendant.
State's Motion in Limine to Declare the Phlebotomist Not a Necessary Foundational Witness for The Admissibility of Blood Draw Results
GRANTED OPINION AND ORDER Barzilai K. Axelrod, Esquire and Dominic A. Carrera, Jr., Esquire, Deputy Attorneys General, 820 North French Street, 7th Floor, Carvel State Building, Wilmington, Delaware 19801, Attorneys for the State. James O. Turner, Jr., Esquire, Assistant Public Defender, 820 North French Street, Wilmington, Delaware 19801, Attorney for Defendant. WHARTON, J.
I. INTRODUCTION
Before the Court is the State's Motion in Limine. The Motion seeks a ruling that the phlebotomist who drew Defendant Shane Scott's ("Scott") blood is not a necessary trial witness. Rather, the State proposes to call an officer who observed the blood draw to testify what he saw the phlebotomist do when she drew Scott's blood. The Court finds that the testimony of the observing officer meets chain of custody requirements, and otherwise provides an adequate foundation for the admission of blood test results. Therefore, the State's Motion in Limine to Declare the Phlebotomist Not a Necessary Foundational Witness for the Admissibility of Blood Draw Results is GRANTED.
II. FACTUAL AND PROCEDURAL BACKGROUND
On January 24, 2018, the Newark Police Department obtained an arrest warrant for Scott and search warrants for his vehicle and residence. Scott was spotted driving into the drive-thru lane at a McDonald's restaurant in Newark, where officers attempted to arrest him. Scott fled and a pursuit ensued, at the end of which the police apprehended Scott. Based on the Scott's driving behavior and other observations, the police obtained an additional search warrant for a sample of Scott's blood to test as part of a Driving Under the Influence ("DUI") investigation. Utilizing a standard issued Blood Alcohol Evidence Collection Kit, a phlebotomist drew Scott's blood in the presence of Cpl. Kenneth Odom. Testing of Defendant's blood sample revealed the presence of the psychoactive component of Marijuana, as well as Oxycodone. On June 4, 2018, Scott was indicted, inter alia, on a Driving Under the Influence charge, in violation of 21 Del. C. § 4177(a). On October 1, 2018, the State filed this Motion in Limine to Declare the Phlebotomist Not a Necessary Foundational Witness for the Admissibility of Blood Draw Results ("Motion").
On November 30, 2018, the Court conducted a hearing on the Motion, where Cpl. Odom and forensic chemist Cynthia McCarthy testified. Cpl. Odom testified that in his seven-and-a-half years with the Newark Police Department, he has dealt with only two phlebotomists, including the phlebotomist who drew Scott's blood. Cpl. Odom's testimony tracked his observations of the blood draw from Scott from the time he handed the blood kit to the phlebotomist until the time the draw was complete and the tubes containing the blood samples were given to him. Cpl. Odom stated that "standard operating procedure" was followed. He handed the phlebotomist a sealed kit used to draw blood, which contained a set of instructions. Cpl. Odom testified that the phlebotomist then "gloved up," sanitized the Scott's arm, applied a tourniquet, inserted the needle into Scott's vein, took the tube from the kit and inserted it into the guide channel of the needle, whereupon the tourniquet was released allowing blood to enter the tube, filling it to the necessary level. Then, to test for drugs, Cpl. Odom stated that a second tube was inserted into the needle after the first tube was removed. Once the tubes were filled with blood and completely and slowly inverted, the tubes were presented back to him for packaging in the evidence kit, which then was stored in a cold storage unit until it was transported to the lab for testing. Cpl. Odom stated that the kit is always presented sealed, and an officer is always present to observe the process. Finally, Cpl. Odom testified that he has participated in over 70 DUI investigations, and the same blood draw procedure has occurred in each one.
Tr. Mot. in Limine Hrg., Nov. 30, 2018 at 7.
Id. at 5-13.
Id. at 8.
Id. at 8-10.
Id. at 10-12.
Id. at 12.
Id. at 13.
Id. at 20.
Id. at 25.
Cynthia McCarthy, a forensic chemist with the Delaware State Police Crime Lab testified that her department oversees breath alcohol testing and training, and also analyzes blood evidence for alcohol. McCarthy, herself, performed approximately 10-20,000 blood draws when she worked as laboratory technologist at a private medical practice. McCarthy testified that the standard blood draw kit contains, "a sterile gauze, a sterile needle, a prep pad, and a Vacutainer tube, and a tube and needle holder, as well as bubble pack and a Ziploc bag, evidence seals, and a chemical test report." McCarthy explained that, when doing a blood draw, if the tube contains the blood of a defendant, the vacuum was not punctured before it was inserted in a defendant's vein, because a Vacutainer tube that has been punctured prior to the blood draw cannot draw blood. Therefore, according to McCarthy, there is a "virtually nonexistent" risk that accuracy would be jeopardized during blood collection, since, as long as there is blood in the tube, there will be an accurate reading.
Id. at 26.
Id. at 28-29.
Id. at 27.
Id. at 38.
Id. at 47.
The State argues based on that testimony that: (1) the phlebotomist is not a necessary chain of custody witness; (2) the phlebotomist is not an otherwise necessary foundational witness or one required under the Confrontation Clause; and (3) requiring the State to present the testimony of the phlebotomist would be cumulative and unduly burdensome, in defiance of express legislative intent.
On October 23, 2018, Defendant responded, opposing the State's Motion. Defendant argues that the phlebotomist is a necessary foundational witness.
III. DISCUSSION
Delaware courts have previously addressed the specific question of whether a phlebotomist is required to testify about blood draw procedures. "[I]n order for the result of the [test] to be admitted, the State must lay an adequate evidentiary foundation." In doing so, the State must show that the phlebotomist complied with the test manufacturer's protocol. The Court holds that the State lays an adequate evidentiary foundation for the result of a blood draw when the blood kit instructions were followed and a witness testifies that he saw the instructions being followed. In that circumstance, a phlebotomist is neither a necessary chain of custody witness, nor a necessary foundational witness required by the Confrontation Clause.
Clawson v. State, 867 A.2d 187, 192 (Del. 2005).
Hunter v. State, 55 A.3d 360, 366 (Del. 2012).
A. The Phlebotomist Is Not a Necessary Chain of Custody Witness.
Statutes and case law make clear that a phlebotomist is not a necessary chain of custody witness in the prosecution of a DUI charge. Sections 2746 and 4177(h)(4) of Title 21 of the Delaware Code address the chain of custody requirements for the admission of blood evidence in the prosecution of DUI cases. Section 2746 states that it is unnecessary to present the testimony of, or certification by, a person who has withdrawn blood in order to establish chain of physical custody of that evidence. Section 4177(h)(4) establishes that the chain of custody is established where there is evidence sufficient to eliminate any reasonable probability that the evidence has been altered or misidentified. Furthermore, in State v. McDowell, interpreting Section 4177(h)(4), this Court held that, "the State only has to show a reasonable probability that the evidence was not tampered with" in order to satisfy the chain of custody requirement and to introduce the results of a defendant's blood test in a DUI trial. The Court in McDowell determined that the phlebotomist was not required to testify because there was no evidence of improper handling. Citing the Synopsis accompanying the statute, McDowell noted that "the testimony of the officer relating to the taking of the blood provides the necessary evidence of a procedure that requires only common knowledge and experience to understand and judge."
2000 WL 33114375 at *1 (Del. Super. Ct. 2000).
Id. at *3.
Id. at *2.
Id. (quoting 21 Del. C. § 4177(h)(4)).
In 2015, the Delaware Supreme Court in State v. Milligan reviewed Delaware's DUI chain of custody statutes, finding them constitutional under the Confrontation Clause. Milligan explicitly stated that, "The Sixth Amendment Confrontation Clause does not require each and every individual who possessed the evidence to provide live testimony in order to establish chain of custody.
116 A.3d 1232, 1239-1240 (Del. 2015).
Id. at 1240 (citing Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309 (2009)).
Under McDowell and Milligan, the phlebotomist is not a required chain of custody witness for the introduction of blood results in a DUI trial, and is not needed to "show the authenticity of the sample, or the accuracy of the testing device." The State need only establish reasonable probability that the sample has not been altered in order to establish chain of custody. The testimony of Cpl. Odom at the Motion in Limine hearing easily meets the reasonable probability standard, and accordingly, the phlebotomist is not a necessary chain of custody witness.
Id. at 1237.
B. The Phlebotomist Is Not Otherwise a Necessary Foundational Witness Required by the Confrontation Clause.
The phlebotomist is not a necessary foundational witness in a DUI trial when an officer witnesses the blood draw and testifies to the process. In Delaware, the State is required to provide an adequate foundation for a defendant's DUI chemical test results to be admitted into evidence at trial. The Delaware Supreme Court addressed these requirements in Clawson v. State for breath testing, and in Hunter v. State for blood testing. Since Hunter, the Delaware Supreme Court has issued numerous opinions that have discussed the admission of blood test results at trial based on testimony where an arresting officer, and not a phlebotomist, was the foundational witness. None have held that the foundation was improperly established.
867 A.2d 187, 192 (stating that an adequate evidentiary foundation showing that there was an uninterrupted twenty-minute observation of the defendant prior to testing is necessary to admit breath test results).
55 A.3d 360, 364-66 (maintaining that compliance with instructions or requirements is the guarantee of reliability and accuracy that is the foundational cornerstone to the admissibility of the results of a blood test).
See, e.g. Guilfoil v. State, 2016 WL 943760 (Del. 2016); Rybicki v. State, 119 A.2d 663 (Del. 2015); Farlow v. State, 2015 WL 3454591 (Del. 2015); Longfellow v. State, 2015 WL 1406045 (Del. 2015).
Scott, however, points to two recent decisions by this Court: State v. Fountain and State v. Stutzman in support of his argument that a phlebotomist is a necessary witness. In Fountain the court suppressed blood results because it found that the phlebotomist failed to follow normal manufacturer required procedures when she punctured the kit's vacuum tube before the needle was in the defendant's arm, potentially allowing contaminants into the sample, making the test results unreliable. In Stutzman, the Court held that Fountain requires the phlebotomist to testify that the blood sample was drawn properly.
2016 WL 4542741 (Del. 2016).
C.A. No. 1608009010 (Del. Super. Ct. 2017).
2016 WL 4542741, at *9. (Noting that puncturing the tube before the needle is in the arm, "degrade[s] the vacuum prematurely but also compromise[s] the tube's sterility"). Id. The Delaware Supreme Court recently expressed that same understanding of the holding in Fountain in Davis v. State, 2019 WL 327962 (Del. 2019).
Tr. Crim. Mot. Calendar, April 7, 2017 at 3.
The context of the ruling in Stutzman is important to understanding why it should not be given precedential effect. At a criminal motions calendar, the State attempted to present what appears to be a motion similar to the one under consideration here. It does not appear that the motion was briefed, nor was the State permitted an opportunity to argue the motion effectively. Defense counsel was not required to argue at all. Relying on its reading of Fountain, the court ruled that the phlebotomist was a necessary witness. Importantly, however, the court did not cite to specific language in Fountain to that effect. A close reading of Fountain does not support the notion that the phlebotomist must be present at trial. The Fountain court merely held that the normal procedures set out in the directions to the blood draw kit must be followed. The blood test results were excluded because the phlebotomist, who actually did testify, failed to follow the manufacturer's mandated process for drawing blood. Because the phlebotomist actually did testify, there was no reason for the court even to address the question of whether she was a necessary witness. It was the content of the testimony that was problematic for the State, not who presented it. Fountain simply follows Clawson and Hunter, stating that the manufacturer's instructions on the blood kit must be followed for the sample to be admissible. There is no basis for interpreting Fountain as Scott urges.
Before the State could complete a sentence of its argument, the court interrupted and told the State that Fountain required the testimony of a phlebotomist. Id.
Id.
Id. at 2-3.
Id.
In this case, Cpl. Odom testified that he read the instructions in the blood draw kit, and watched as the phlebotomist followed them. That testimony included his observation that that the needle was placed in the Defendant's arm before the stopper on the vacuum tube was punctured, in compliance with Fountain. Because the blood draw kit instructions were followed properly by the phlebotomist as witnessed by Cpl. Odom, the phlebotomist need not testify.
Tr. Mot. in Limine Hrg., Nov 30, 2018 at 8-10.
Id. at 10-12.
C. The Court Need Not Determine Whether Compelling the Phlebotomist's Testimony Would Be Cumulative, Unduly Burdensome, And in Defiance of Express Legislative Intent.
As previously discussed, the phlebotomist is not a necessary chain of custody or foundational witness where the State can set forth the foundational requirements for the admissibility of blood test results through another witness - here, Cpl. Odom. It is certainly true that requiring the testimony of a phlebotomist in every DUI blood case could result in the presentation of cumulative and unnecessary evidence and could be unduly burdensome for the State and the phlebotomists. It also is certainly true that the General Assembly, in amending Section 4177(h)(4) in 1997, explicitly aimed to relieve phlebotomists of the burden of appearing in court for DUI prosecutions. The Synopsis of the 1997 Amendment states that, "[t]he testimony of the officer relating to the taking of the blood provides the necessary evidence of a procedure that requires only common knowledge and experience to understand." These arguments are compelling policy arguments addressed in general to all DUI blood draw cases. But, this Court is addressing a particular motion in a particular case. Having already determined that the State need not present the testimony of the phlebotomist in this case, the Court need not address the broader policy arguments in support of its decision.
In New Castle County two primary phlebotomists perform the majority of the approximately 500 blood draws per year. Tr. Mot. in Limine Hrg., Nov. 30, 2018 at 7. Therefore, the burden of approximately 500 potential trial subpoenas could fall to just two people. Id.
IV. CONCLUSION
For the foregoing reasons, the State's Motion in Limine to Declare the Phlebotomists Not a Necessary Foundational Witness for The Admissibility of Blood Draw Results is GRANTED.
IT IS SO ORDERED.
/s/_________
Ferris W. Wharton, Judge