Opinion
No. CR-07-0292771
February 11, 2009
MEMORANDUM OF DECISION
The defendant Gregory Siege is charged with Reckless Operation of a Vessel While Under the Influence of Intoxicating Liquor or drugs in violation of General Statutes § 15-1401(a)(1), Manslaughter in the Second Degree in violation of General Statutes § 53a-56(a)(1), four counts of Reckless Endangerment in the First Degree in violation of General Statutes § 53a-63a, and three counts of Assault in the Second Degree in violation of General Statutes § 53a-60(a)(3).
The defendant has filed three motions. The first is a motion to suppress the results of the two urine tests for failure to meet the requirements of General Statutes § 15-140r(a)(6), thereby rendering the results inadmissible to prove a violation of General Statutes § 15-1401. The second motion is a motion in limine to suppress evidence of the Field Sobriety Tests (FSTs) administered to the defendant. The third motion requests a hearing pursuant to State v. Porter, 241 Conn. 57 (1997), regarding the urinalysis procedure used in the State of Connecticut. The Court held a two-day evidentiary hearing concerning the first two motions.
FACTUAL BACKGROUND
After a two-day evidentiary hearing, the Court finds the following facts. This incident occurred when the defendant fell out of his vessel on Sunday afternoon on July 8, 2007. The defendant was operating a twenty-foot, center console motorboat, powered by a 200 horse-power engine. There was no evidence that there were any mechanical problems with the vessel. The vessel was equipped with gunnels, which are basically the sides of the vessel. These gunnels are raised to such a height so as to prevent an individual from accidentally falling out of the vessel. The weather conditions were clear and dry, and the river conditions were unremarkable, being described, at worst, as "slightly choppy." The river was extremely crowded with other vessels as it was the Sunday after the Fourth of July.
The defendant's vessel was equipped with a Global Positioning System (GPS). This system was recovered after the accident, and provides evidence of the boat's movements on the day in question. It is based upon the recovery of data from that system, that the timing of the defendant's fall from the vessel and the collision in question can be precisely established. The GPS establishes that the defendant fell out of his boat at 3:46 p.m., and that the collision occurred at 3:48 p.m.
An individual named Kurt Bessier witnessed this incident. Bessier testified that both his and the defendant's vessel were proceeding south on the Connecticut River at approximately five miles per hour. Bessier stated that the defendant increased the speed of his vessel and pulled away from him. The defendant told the police he had increased the speed of his vessel to thirty knots when he fell overboard. Bessier testified that after the defendant pulled in front of him he momentarily looked at the instruments in his vessel. When he looked up, Bessier states that the defendant's boat was unmanned and turning hard to the right. Bessier immediately pulled the defendant from the water. He states that the defendant was in the water for no more than ten or fifteen seconds. The only explanation the defendant gave to Bessier as to how he fell overboard was that he "hit a wave and was thrown from the boat." After the accident, the defendant told Officer Raul Ramos that after he opened up the throttle on his boat to about thirty knots, a gaff had fallen from the side of his boat and that when he reached down to stow the gaff a wave hit the boat and he was ejected from the boat. A short time after the defendant fell from his boat, the defendant's vessel struck a sixteen-foot sailboat at a high rate of speed. The defendant's GPS indicates the collision occurred at 3:48 p.m. The sailboat had four passengers on board. One of the passengers was killed, and the others sustained serious injuries. After the collision, the defendant's vessel continued to run in circles at a high rate of speed posing a great danger to other vessels on the river. With a considerable amount of difficulty and risk by rescue personnel, the defendant's vessel was finally brought under control at 4:32 p.m.
The defendant was brought to the dock by Bessier approximately one hour after he fell from his vessel. During that time, the defendant was not seen to ingest any food or fluids. Once brought to the dock, the defendant was met by Sgt. Ryan Healy of the Department of Environmental Protection. The remains of the deceased victim were also on the dock. Two of the other victims were on route to hospital via Life-Star helicopter. The area of the dock was chaotic, including the presence of numerous onlookers and others who were present because of the holiday weekend. According to Sgt. Healy, the defendant appeared unsteady, disorientated and confused. He had slurred speech, bloodshot eyes and an odor of alcohol around his face. The defendant did not appear injured and did not request medical assistance. The defendant was asked repeatedly if he required medical assistance and he repeatedly said that he did not. The defendant was barefoot, wearing multi-colored shorts and looked sunburned. The defendant told Officer Raul Ramos that he had taken two medications that morning, Cybalta (for "anxiety") and Depacote (a "mood stabilizer"). He also used his fingers to indicate that he had consumed three to four inches of whiskey that afternoon. The defendant told Officer Raul Ramos that he had consumed six ounces of "bourbon whiskey" mixed with sprite on ice between 1:30 and 3:00 p.m. that afternoon. Before beginning the field sobriety tests (FSTs), the defendant was given twenty minutes to acclimate to land. The testimony is that during the administration of the FSTs the defendant became belligerent and argumentative.
Because of all of the activity in the immediate dock area, and the time constraints (involving General Statutes § 15-140r(a)(6)), the arresting officers testified that the only feasible area for the administration of the FSTs was a parking area in the vicinity of the dock. The court credits this testimony. The defendant was on the river for a considerable period of time before the authorities even knew his identity. The officers all testified that they were aware of the two-hour requirement of § 15-140r(b)(6) and were, as a result, attempting to expeditiously process the defendant. The dock area was crowded with onlookers brought on by the chaotic scene and rescue, as well as the presence of the deceased victim. The nearest available area was the nearby parking area. The parking area was described as a "crushed stone/dirt parking lot" and a "level, dirt gravel mix." Sgt. Healy testified that the defendant did not need assistance walking to this area. Pictures of the area were admitted in evidence. They show the area to be a reasonably level surface of crushed stone and dirt. The area was shaded by brush and parked cars.
Officer Raul Ramos was instructed to perform a series of roadside sobriety tests on the defendant. He was assisted by Officer Joseph Ruggerio. Officer Ramos is Police Academy Certified whose training included the use of the National Highway Traffic Safety Association (NHTSA) Manual for DWI detection and standardized field sobriety testing, as well as a one-week course in 2002, which included DWI training and a Federal Law Enforcement Training Course in 2007, which also included DWI training and detection.
The defendant, because he was barefoot, was offered footware which he refused. Officer Ramos testified that the defendant had a slight odor of alcohol and that his eyes were bloodshot and glassy. The defendant stated that his legs hurt, but that he was willing to perform the roadside sobriety tests.
Indeed, according to the officer's report (Exhibit F), when offered the footware, the defendant "grinned and opted not to wear them." The defendant can hardly now be heard to complain that he performed the FSTs without footware when he refused footware when offered same.
Officer Ramos administered three FSTs. The tests were the Horizontal Gaze Nystagmus (HGN) test, the walk-and-turn test and the one-leg stand test. Officer Ramos stated that he was trained, in part, to administer these tests using NHTSA Guidelines. A 2004 version of the guidelines was admitted as Defendant's Exhibit A. It is over 160 pages and includes recommendations on the administration of the FSTs. There is no evidence that Officer Ramos was trained using the 2004 version of these guidelines. Officer Ramos testified that Exhibit A offers guidelines or recommendations on the administration of these tests, and that there is nothing in Connecticut law that requires exact compliance with its recommendations. Indeed the "Preface" section of Defendant's Exhibit A provides:
The procedures outlined in this manual describe how the Standardized Field Sobriety Tests (SFSTs) are to be administered under ideal conditions.
We recognize that the SFSTs will not always be administered under ideal conditions in the field, because such conditions will not always exist. Even when administered under less than ideal conditions, they will generally serve as valid and useful indicators of impairment. Slight variations from the ideal, i.e., the inability to find a perfectly smooth surface at roadside, may have some effect on the evidentiary weight given to the test results. However, this does not necessarily make the SFSTs invalid. [Emphasis added].
Officer Ramos was extensively cross-examined on his qualifications, the administration of the tests and the conditions under which they were administered. The court finds that while the NHTSA Guidelines (Exhibit A) are certainly relevant, they are not the exclusive basis to consider regarding the propriety of the FSTs. Moreover Officer Ramos' training regarding DWI arrests and the administration of FSTs was not restricted to the NHTSA Guidelines, rather it included other professional training and education upon which he drew in administering and interpreting the defendant's performance on the FSTs. Thus, even if exact compliance with each detail of the NHTSA Guidelines were required, the evidence is clear that Officer Ramos relied upon the full panoply of his education, training and experience in administering the FSTs on the defendant, only one portion of which include the NHTSA Guidelines. After the FSTs, the defendant was brought to the Old Saybrook Police station. State Trooper David Todd administered two urinalysis tests. The reason that urinalysis was selected was that the defendant admitted to taking the drugs Cybalta and Depacote. The trooper testified that the defendant had red, glassy, bloodshot eyes, was lethargic and smelled of alcoholic beverage and appeared intoxicated. The first test was administered at 5:56 p.m. and the second test at 6:30 p.m. The results were .17 ethanol by weight and .15 ethanol by weight respectively. The defendant's urine also tested positive for the drug Gabapentin. The evidence is clear that all applicable statutory and regulatory procedures were followed by the trooper in the administration of these tests, as well as the analysis of the samples by the Department of Public Safety Toxicology Laboratory. The trooper testified that he kept the defendant under observation for the entire testing procedure. His testimony is that the defendant did not void prior to rendering the first sample, but that he thought the defendant " . . . finished [urinating] in the head when he was done," rendering the first sample.
"Considering that there may be other means of law enforcement training available [other than the NHTSA's manual] . . . a law enforcement officer may testify to the results of field sobriety tests (including the horizontal gaze nystagmus test) if it has been shown that the officer has been adequately trained in the administration and assessment of those tests and conducted them in substantial accordance with that training." Smith v. State, 11 P.3d 931, 935 (Wyo. 2000) (cited with approval in State v. Balbi, 89 Conn.App. 567, 579 (2005). As articulated below, the testing officers were both adequately trained and performed and interpreted the FSTs in substantial compliance with relevant standards, including defendant's Exhibit A.
The defendant claims on page 16 of his memorandum of law in support of a Porter hearing that "the methodology which [the defendant] is challenging involves the collection of two samples without a void," and that "the facts of this case clearly demonstrate that there was no void." [Emphasis added]. This factual assertion is not accurate. The more probable scenario upon the record before the court is that the defendant did not void prior to rendering the first sample, but did void prior to rendering the second sample. The testimony cited by the defendant on page 21 of his brief and found on page 115 of the December 2, 2008 transcript reads as follows:
Defendant's Counsel: And I believe you testified before [the defendant] provided that first urine sample. Okay. And after he provided or as part of providing that first sample, he didn't turn around and urinate any place else?
Trooper Todd: Not that I observed.
* * *
Defendant's Counsel: And the first sample that you had him provide was for a cup?
Trooper Todd: Yes, sir.
Q. Do you know how much the cup contains?
A. No, sir. No, I'm not sure how much it would hold.
Q. Did he fill the cup completely?
A. I told him to stop, yes, sir.
Q. You told him to stop?
A. Yeah. I didn't want it to overflow. So I said —
Q. As far as you could tell, he could keep going?
A. Probably yes. Actually, I think he finished in the head when he was done.
Q. You just indicated to me you didn't observe him do that?
A. I had him stop, and then I took the sample. [Emphasis added].
Defense counsel did not pursue this questioning in any further detail. Having heard the testimony of the witness and assessed his credibility, the court understood this testimony to mean that the trooper had the defendant stop urinating, took the sample from the defendant so that it would not overflow, and that the defendant finished urinating in the toilet after giving the first sample. Resolution of this factual issue, in any case, is not necessary to the court's ruling on any of the defendant's three motions. (See Section Three, and State v. Jones, 51 Conn.App. 126, cert. denied, 247 Conn. 958 (1999), discussed below). The court calls attention to this as the defendant asserts in his brief that the factual record shows that the defendant did not void prior to each urine sample. This is accurate as to the first sample, but not as to the second sample.
I
The defendant has moved to suppress the results of the two urinalysis tests administered to the defendant claiming that the tests were not administered within two hours of the alleged operation of the vessel as required by § 15-140r(a)(6). The first test was administered at 5:56 p.m. and the second test was administered at 6:30 p.m.
General Statutes § 15-140r(a)(6) provides in relevant part that:
[I]n any criminal prosecution for the violation of . . . section 15-1401 . . . evidence respecting the amount of alcohol or drug in the defendant's blood or urine at the time of the alleged offense, as shown by a chemical analysis of the defendant's breath, blood or urine shall be admissible provided . . .
(6) evidence is presented that the test was commenced within two hours of operation of the vessel. [Emphasis added.]
"`[C]riminal statutes must be strictly construed . . . and hence, must be liberally construed in favor of the accused.' . . . When construing a statute, we seek to ascertain and give effect to the apparent intent of the legislature . . . If the words of a statute are clear and unambiguous, we must assume that those words express this intention and we need inquire no further to construe the statute . . . When evaluating whether the words of the statute are plain and unambiguous, we give them their commonly approved meaning unless a contrary intent is clearly expressed." State v. Corrigan, 40 Conn.App. 359, 362-63 (1996).
Applying these principles to the case at bar, the court concludes that the phrase "within two hours of operation" is clear and unambiguous. There is no evidence that the police were anything but diligent in attempting to process the defendant and have him render a urine sample within the two-hour time frame. Also, there is no indication based upon the evidence adduced at the hearing that the defendant did anything to deliberately delay the testing procedure.
General Statutes § 15-133(d) provides that no person shall operate a vessel while under the influence of intoxicating liquor or any drug, or both, and that "`operate' means that the vessel is underway or aground and not moored, anchored or docked." However, the evidence is persuasive (and uncontradicted) that the defendant fell out of his vessel at 3:46 p.m. and that the collision occurred at 3:48 p.m. The first test was not administered within two hours of either time. The court is not persuaded by the state's argument that the defendant was operating the vessel after he fell out of the vessel. Closely analogous is the law pertaining to the operation of a motor vehicle in the context of proving a violation of General Statutes § 14-227a. The law is clear in this context that: "A person operates a motor vehicle within the meaning of this statute, when in the vehicle he intentionally does an act or makes any use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of the vehicle." State v. Swift, 125 Conn. 399, 403 (1939). (Emphasis added). (See also, State v. Ducatt, 22 Conn.App. 88, 93 (1990); "An accused operates a motor vehicle . . . when, while under the influence of alcohol or any drug and while in the vehicle and in a position to control its movements, he manipulates . . . the machinery of the motor or any other machinery manipulable from the driver's position that affects or could affect the vehicle's movement." (Emphasis added).
It is clear that the chemical tests were not commenced within two hours of the defendant's operation of the vessel. As such, the requirements of subsection (b)(6) are not met, and the test results may not be admitted to prove a violation of General Statutes § 15-1401. Accordingly, the defendant's motion to suppress the chemical tests insofar as they are offered to prove a violation of General Statutes § 15-1401 is granted.
This does not preclude the state from attempting to introduce the results of the urinalysis to prove the other charges, however. See, e.g., State v. Robarge, 35 Conn.Sup. 511 (1977) (where driver admitted to consuming five drinks prior to the 1:40 a.m. fatal accident. At 4:30 a.m., single blood test was taken from the defendant. The defendant was charged with negligent homicide with a motor vehicle and claimed that the failure of the test result to meet the requirements of § 14-227a(b) rendered the test result inadmissible on the negligent homicide charge. The court rejected this claim, and reasoned that " . . . even a slight degree of impairment of the defendant's facilities would be of some significance in determining whether she had been negligent . . . The admission of the defendant that she had consumed five drinks of an alcoholic beverage in the course of the evening was sufficient to indicate that even two hours after the accident her blood stream would contain some quantity of alcohol, measurement of which would be useful in determining the extent to which her driving ability was affected"). Id. at 515. [Emphasis added]; see also, State v. Singleton, 174 Conn. 112, 115 (1977) (on trial for misconduct with a motor vehicle in violation of General Statutes § 53a-57, the court held that the procedural steps for taking and testing of blood prescribed by § 14-227a(b) are not applicable to a charged violation of § 53a-57); accord, State v. Shaw, 12 Conn.App. 294, 301-02 (1987), citing, Robarge and Singleton; State v. Corrigan, 40 Conn.App. 359, 364 (1996) (blood alcohol content held " . . . admissible to show that the defendant was under the influence of liquor to prove the manslaughter and assault charges . . . [as] the limitations on the admissibility of blood evidence under Section 14-227a apply only to prosecutions under that section." [Emphasis added.] The court in Corrigan also held that extrapolation testimony was not required to prove the crimes of manslaughter or assault as those crimes are not committed by virtue of having a certain blood alcohol level, rather they merely require " . . . proof of harm occurring as a consequence of the effect of alcohol"). Id. at 364-65; accord, " State v. Geisler, 22 Conn.App. 142, 166, [cert. denied, 215 Conn. 819 (1990), vacated, 498 U.S. 1019, on remand, 25 Conn.App. 282 (1991), aff'd 222 Conn. 672 (1992)] (in conviction for 53a-60d, assault in the second degree with a motor vehicle while under the influence of intoxication liquor, extrapolation of blood alcohol tests to time of offense not required, as defendant's behavior can corroborate accuracy of results of blood alcohol tests.)" Coble v. Maloney, 34 Conn.App. 655, 665 (1994); State v. Dawson, 23 Conn.App. 720, 722-24 (1991); (defendant charged with manslaughter with a motor vehicle under General Statutes § 53a-56b and misconduct with a motor vehicle in violation of General Statutes § 53a-57. Defendant claimed that testimony from state's toxicologist of defendant's post-accident blood alcohol level of .16 should have been precluded as the expert " . . . was unable to render an opinion as to the exact blood alcohol level at the time of the offense and the precise effects of that alcohol level on the defendant." The court disagreed, holding that
" . . . proof of operation under the influence under General Statutes § 53a-56b does not require expert testimony as to the defendant's blood alcohol content at the time of the offense . . . The jury could have found, beyond a reasonable doubt, that the risks of being able to control his car after drinking and of killing another while on the road were such that the failure to perceive them constituted a gross deviation from the standard of care of a reasonable person"). Indeed, the state is not claiming that the urine tests can be used to "pinpoint the defendant's blood alcohol content at the time of operation," merely "that the results of the urine tests may be useful in explaining impairment." See, State's Brief, p. 5.
II
The law is clear that the results of FSTs are admissible if a foundation is laid that the testing officer is qualified to perform the tests, and that the tests were conducted in substantial accord with relevant procedures and standards. State v. Balbi, 89 Conn.App. 567, 573-74 (2005). The state has met that threshold burden of admissibility. The defendant extensively cross-examined the arresting officers concerning the administration of the FSTs, the qualifications of the testing officers and the procedures used by them. Having considered all of the testimony and evidence, the court determines that the officers were adequately qualified to perform the FSTs and that there certainly was substantial compliance with relevant standards (including but not limited to Defendant's Exhibit A). The defendant's objections go to the weight of the evidence and not its admissibility.
Accordingly, the defendant's motion in limine with regard to the suppression of the FSTs is denied.
III
As stated our supreme court in State v. Porter, 241 Conn. 57, 87 (1997), " . . . the proponent of scientific testimony bears [the burden] to establish that the testimony is admissible." "Once the party opposing the evidence objects, the proponent bears the burden of demonstrating its admissibility." Id. Further, in addressing the showing that a proponent of scientific evidence must make regarding the admissibility of evidence, Porter instructs as follows:
"Evidence is admissible when it tends to establish a fact in issue or to corroborate other direct evidence in the case." . . . Evidence is not rendered inadmissible because it is not conclusive. All that is required is that evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative. Moreover, even evidence "susceptible to different interpretations" is admissible . . . so long as the evidence may reasonably be construed in such a manner that it would be relevant. Id. at 88-89.
The court in Porter goes on to state:
In light of the traditional policy regarding the admission of relevant evidence, "a judge frequently should find an expert's methodology helpful and thus admissible even when the judge thinks that the expert's technique has flaws sufficient to render the expert's opinion inaccurate. He or she will often still believe that hearing the expert's testimony and assessing what conclusion was correct and may certainly believe that a jury attempting to reach an accurate result should consider the evidence. A trial judge should therefore deem scientific evidence inadmissible only when the methodology underlying such evidence is sufficiently invalid to render the evidence incapable of helping the fact finder determine a fact in dispute." Id. At 89. [Emphasis added.]
While the proponent of scientific evidence bears the burden of demonstrating its admissibility, the court states in State v. Kirsch, 263 Conn. 390, 402 (2003):
In Porter, "we explicitly held that some scientific principles have become so well established that an explicit Daubert analysis is not necessary for admission of evidence thereunder . . . Evidence derived from such principles would clearly withstand a Daubert analysis, and thus may be admitted simply on a showing of relevance."
Connecticut has statutorily recognized three methods of testing for the presence of alcohol in the body: by testing the blood, breath or urine. (See General Statutes §§ 15-140r(a) and (b); 14-227a(d)).
General Statutes § 15-140r(b) provides:
(b) The Commissioner of Public Safety shall ascertain the reliability of each method and type of device offered for chemical testing and analysis of blood, of breath and of urine and certify those methods and types which said commissioner finds suitable for use in testing and analysis of blood, breath and urine, respectively in this state. The Commissioner of Public Safety, after consultation with the Commissioner of Public Health, shall adopt regulations governing the conduct of chemical tests, the operation and use of chemical test devices and the training and certification of operators of such devices and the drawing or obtaining of blood, breath or urine samples as said commissioner finds necessary to protect the health and safety of persons who submit to chemical tests, and to ensure reasonable accuracy in testing results. [Emphasis added].
Thus the urinalysis methodology is statutorily recognized as reliable for legal purposes. (See State v. Jones, 51 Conn.App. 126, 133-34, cert. denied, 247 Conn. 958 (1999)), where "the trial court properly admitted the urinalysis results under the [more restrictive Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)] `general acceptance' test.") Moreover, "[r]egulations promulgated by the commissioner of public safety cite this methodology [urinalysis] as one . . . that may be used by laboratories to determine blood alcohol content." State v. Kirsch, 263 Conn. 390, 404 (2003). "Additionally, other jurisdictions have recognized the validity of this methodology [urinalysis] for legal purposes. Id. at 404. For example, in People v. Municipal Court (Sansone), 184 Cal.App.3d, 199, 228 Cal.Rptr. 798 (1986), the court held that it was reversible error for the trial court to apply a Frye analysis to urinalysis because it is a well-established procedure. Said the court in Sansone:
Kirsch dealt with different analytical techniques (the "enzyme method" and "gas chromatography") to detect the presence of alcohol in the blood.
The People challenge the order excluding the urine test results on the basis the Frye rule does not apply. They are correct because there is nothing new about the use of urine tests to ascertain the level of alcohol in the blood . . . The Legislature, some 20 years ago, incorporated urine tests into the implied consent law . . . Urine, blood and breath tests are all carefully regulated to assure the accuracy of the test results . . . [W]ere the procedure not acceptable, the Legislature would not have included it as an alternative for blood testing for blood alcohol levels. Id. at 201.
See also, Genung v. Commissioner of Public Safety, 589 N.W.2d 311, 313-14 (Minn.App. 1999) (defendant's forensic expert testified that " . . . the method used to collect the urine was not a `scientifically valid test method because [the defendant] had not been required to void his bladder once and wait approximately 20 to 30 minutes before producing the test sample. The expert stated that failure to void before producing the sample created a `pooled sample,' which measured the average alcohol concentration since the last time he urinated, rather than the alcohol concentration at the time of the arrest." The court rejected this argument, concluding " . . . that the test was `properly administrated [under the Bureau of Criminal Apprehension procedures] . . . which [procedures] do not require voiding once before producing the test sample . . . and accurately and reliably analyzed petitioner's alcohol concentration." Id.
The court also rejected the premise that the " . . . most accurate testing method be used in administering a test." The " . . . court concluded that it must defer to the legislature and the commissioner [with the relevant expertise] as to the appropriate procedures to use to reach test results on which to base a revocation"). Id. It is also significant to note that unlike most other states, Connecticut requires that two samples be taken from the subject, rather than one, further bolstering the reliability of the testing procedure. See State v. Jones at 133.
It is clear, therefore, that there is nothing new in Connecticut (or elsewhere) concerning the use of the urinalysis to determine blood alcohol content. Urinalysis is a legislatively recognized scientific means of measuring and detecting blood alcohol in the body. The defendant nevertheless claims that he is entitled to a Porter hearing. The defendant essentially posits that the method that the police officer used in the case at bar to collect the two urine samples was flawed in that the defendant was not allowed to "void" his bladder prior to rendering each sample. Because the defendant was not allowed to void prior to each sample, the defendant claims that the results of the urinalysis are "completely unreliable and not generally accepted in the relevant scientific community." The court disagrees that a Porter hearing is required.
Like the defendant in State v. Jones, the defendant in the case at bar also claims that the method or formula used by the State to convert the level of alcohol in the urine to the level of alcohol in the blood is also scientifically invalid. (See footnote 10 below.)
As noted in footnote three, it is far from clear based on the testimony elicited by the defendant before this court that the defendant did not void prior to each test. While the evidence is clear that the defendant did not void prior to the first test, the testimony is that the defendant did void after he rendered the first sample. [Editor's Note: A typographical error in the original version of this footnote, corrected in a brief "Correction/Erratum" Memorandum by J. Frechette filed on February 18, 2009 has been incorporated into this footnote as reported here. The Correction altered the first sentence to refer to footnote three instead of footnote one.]
First, and most importantly, the defendant's identical claim was presented and rejected by the court in State v. Jones, 51 Conn.App. 126, cert. denied, 247 Conn. 958 (1999). A careful reading of Jones (and the Records Briefs in that case) show that the defendant's claim is without merit. In Jones, the defendant rendered two urine samples. The defendant did not void his bladder before the first or second test. The defendant claimed that his failure to void prior to each sample rendered the test results scientifically unreliable and, therefore, inadmissible under Frye.
The Jones court held a Frye (now Porter) hearing to determine the validity of the defendant's claim. The court heard testimony from the state's toxicologist and the defendant's expert, Dr. James E. O'Brien. Dr. O'Brien testified that to his knowledge there were no Department of Health regulations with respect to the collection of urine by police departments, nor were there any regulations dictating the manner in which the urine is collected. See, A-106 Conn. Appellate Ct. Records Briefs (Def.'s App.) (September Term 1998.) During Dr. O'Brien's testimony, the defendant made an extensive offer of proof detailing the defendant's factual and legal claims. The claimed invalidity of the urinalysis process is quoted in full below shows that the main thrust of the defendant's claim centers on the supposed invalidity of the test results because the defendant was not required to void prior to rendering each sample. The trial court in Jones rejected the defendant's claims and denied the defendant's "motion to suppress the [urine] tests because of [the alleged] noncompliance with the Frye standard, that the test is not medically acceptable within the general forensic community." A-122 Conn. Appellate Ct. Records Briefs (Def's App.).
The defendant's proffer is quoted as follows:
DEFENDANT'S COUNSEL: I would like to make a proffer at this time for the record . . . as to what the testimony would be from Dr. O'Brien.
THE COURT: Certainly.
DEFENDANT'S COUNSEL: I understand what Dr. O'Brien's testimony would be, that the procedure currently being used by the State of Connecticut for the collection of urine samples is no longer recognized by the scientific community as appropriate standard for the collection of urine as it relates to the testing for blood alcohol; that the scientific community today recognizes in order to get a sample that has integrity that can be tested for blood alcohol that the subject must be allowed to empty his bladder before any sample is taken; that at least twenty to thirty minutes must pass before you take the first sample and then the bladder must be emptied again . . . wait twenty minutes . . . [then] take another [the second] sample; that's the state of scientific integrity that is currently required by a number of jurisdictions and most writers that deal with blood alcohol, the clinical scientists, the people who write in this area indicate that that is the only way to lessen the unreliability of a urine test, which I think your Honor already knows is the least reliable of the two or three mechanisms that are used.
So that his [Dr. O'Brien's] testimony . . . would be that the scientific community now recognizes an entirely different manner for the collection of a sample than had been used by the State of Connecticut for at least twenty-four years, and is still being used according to [the state's expert]. [The state's expert] testified that there is in fact no standard for collection, the police officer indicated that [the defendant] was not allowed to void before the first sample . . . [and] didn't void before the second sample.
And the standards of science today would indicate that if you follow what the State did in this case, no voiding before the first sample, clearing the bladder and then taking a second sample, is that the test results are false . . . It's not a question of unreliable, not a question of getting an improper number, the test is no good whatsoever under the manner in which it was taken here . . . The AMA makes the same recommendation The AMA manual says that you have to completely empty the bladder, wait twenty minutes, take the sample, empty the bladder, wait twenty or thirty minutes, take the second sample. That anything other than that, and certainly the pooling of urine over time, renders the test false, not unreliable, just no good, it can't be relied on.
And that's the offer of proof that I would make that we would have elicited through Dr. O'Brien in this matter. And I think that is a Frye matter. I think the State of Connecticut is currently using a system that results in false tests. Now the fact that it's been accepted by a number of people for a long time doesn't make it right, and that the state of scientific community today is that the collection of urine, as being done in these cases by the Department of Health and by the police officers, leads to false tests. And that's what the offer of proof would be. [Emphasis added]. A-116-129 Conn. Appellate Ct. Records Briefs, (Def.'s App.).
It is also significant to note in Jones, that after the Porter hearing, there was a thorough trial on the merits at which time the defendant's expert (Dr. O'Brien) was allowed to testify in full before the jury. Not surprisingly, Dr. O'Brien testified in complete accord with the defendant counsel's earlier offer of proof concerning the need for voiding prior to each test, as well as discussing the above mentioned claimed deficiency concerning the method used to convert the urine alcohol content to an equivalent blood alcohol content. After Dr. O'Brien completed his testimony before the jury, defense counsel filed another motion to suppress the test results, since, he stated, " . . . we now have the [full] testimony from Dr. O'Brien that the manner in which the sample was taken renders the result of the blood alcohol unusable with respect to a defendant in a driving under the influence case." A-125 Conn. Appellate Ct. Records Briefs (Def.'s App.). The court again denied the motion stating that the objection went to the "weight rather than the admissibility of the test results." Jones at 135. Dr. O'Brien's testimony was copiously quoted in the defendant's brief in the Appellate Court. ("At the conclusion of Dr. O'Brien's testimony [before the jury] the defense made a new motion to suppress the urine tests/BAC results on the ground that the procedure for taking the samples failed to comply with current scientific procedures rendering the test results thereon false." (Emphasis added.) See, State v. Jones, Defendant's Brief, p. 16. Thus, the defendant was allowed to make a full and complete record in State v. Jones, and his claims (which are mirrored by the defendant's in the case at bar) were rejected by the Appellate Court.
In his testimony before the jury Dr. O'Brien testified to the following: (1) that urine testing is the least reliable method of testing for blood alcohol content when compared to testing the person's blood or breath; (2) that there is a wide range of variation concerning the number to be used when converting the amount of alcohol in the urine to the amount of alcohol in the blood. (Dr. O'Brien testified that the number (identified as a "constant)" ranged between 0.2 and 3.4, and that the "constant" used by the State was 1.35. The state's expert testified that the state uses a conversion number of 1.3.(A-37); (3) that the failure of the subject to void before each of the renderings of urine makes the test results scientifically useless and unusable in determining a subject's blood-alcohol level. A-154-163 Conn. Appellate Ct. Records Briefs (Def's App.).
It is evident that a full and complete record was made before the trial and the Appellate Court in State v. Jones concerning the scientific validity of the urinalysis process in Connecticut. It is also plain that the claims made by the defendant in the case at bar — including the lack of "voiding" prior to each test — were presented and rejected by the court in State v. Jones.
The law is clear that "[o]nce a scientific process or methodology has been approved after a Porter analysis, it can be admitted in subsequent cases without a second Porter-type analysis . . . [Further], the procedures utilized and the qualifications of the operator or investigator are proper subjects of inquiry and go to the weight of the evidence." Colin C. Tait Eliot D. Prescott, Tait's Handbook of Evidence, § 7.7.1 (4th Ed. 2008). [Emphasis added]. The Jones court has already subjected the identical claim that the defendant is making in the case at bar to analysis, and rejected it. As such, the defendant is not entitled to a Porter hearing in the case at bar.
Further support for this conclusion is found in State v. Reid, 254 Conn. 540 (2000). In Reid, the defendant requested a Porter hearing concerning the reliability of microscopic hair analysis. The state's expert testified that he could not state that the hairs in question were definitely the hairs of the defendant, and that microscopic hair analysis alone is not sufficient to identify an individual, but that the analysis is useful for determining whether a person is one of the class of people from whom the hair in question could have originated. The Supreme Court held that a Porter hearing (while given by the trial court) was not required for this type of evidence, as this evidence, while not conclusive on it own, was " . . . relevant to assist the jury in determining whether the defendant was the attacker." Id. at 551. "One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable . . . Evidence is not rendered inadmissible because it is not conclusive." Id. at 550. [Emphasis added]. The court held that the microscopic hair analysis in conjunction with the victim's identification of the defendant in a photographic array made the evidence reliable.
As in Reid, (and only as to the charges other than § 15-1401) the urine test results do not arise in isolation. Rather the results can be considered in the context of the defendant admitting to consuming six ounces of bourbon whiskey between 1:30 and 3:00 p.m.; the incident occurring at 3:48 p.m.; the defendant manifesting objective signs of intoxication immediately following the incident, including slurred speech, bloodshot eyes, odor of alcohol, and simply falling out of his vessel on a clear and sunny afternoon. Indeed, the defendant submitted the testimony in his brief of an expert in two matters before the Department of Motor Vehicles (Exhibit L) in which the expert posits that the results of a urinalysis test can be better interpreted in the context of the defendant's behavior at and around the time the samples were taken. Thus, if the defendant was manifesting signs of intoxication prior to when the urine samples were taken, the confidence in the fidelity of those urine test results is increased. Presumably, the defendant's admission to the consumption of six ounces of whiskey between 1:30 p.m. and 3:00 p.m. would also further corroborate those test results, as the test results corroborate the defendant's own statement that he drank six ounces of whiskey prior to getting in his vessel. Similarly, the test results can also corroborate the defendant's actions and manifestations of intoxication.
See also, State v. Barber, 42 Conn.App. 589, 598 (1996); where the Court stated: "we need not decide whether the [single] blood test result proffered pursuant to § 14-227a(l) alone, without extrapolation testimony would have been sufficient to support a prosecution under § 14-227a (a), but merely that the blood test, together with evidence concerning the defendant's behavior or other evidence that the state may have presented, could allow a reasonable jury to find that the defendant was operating a motor vehicle while under the influence of intoxicating liquor." (Emphasis added). Similarly, in the case at bar, when offered to prove a violation of the charges other than § 15-1401, the results of the urinalysis do not have to be considered in isolation. Rather their relevance and probative value must be understood in the context of the defendant's behavior at and just after the time of the incident, as well as his frank admission that he ingested six ounces of whiskey just prior to the accident.
The defendant in Reid, also argued that the microscopic hair analysis should have been excluded because the state's expert " . . . did not evaluate all of the hair characteristics discussed in the forensic literature . . . The state counter[ed] that such measurements are not generally required . . . and that [their expert's] procedures fully complied with the standard operating procedures of forensic laboratories in Connecticut . . . " Id. at 552. The court held:
Once the trial court has served its gatekeeping function in accordance with Porter and determined that the expert testimony will be admitted, any challenges to the methodology used in the process go to the weight of the testimony and not its admissibility . . . The defendant had the opportunity to challenge [the state's expert's] methodologies on cross-examination, and, in fact, questioned him concerning which hair characteristics to analyze, and about forensic literature suggesting that certain measurements of the hair under analysis always be made. Because the expert testimony pertaining to the hair analysis was relevant to an issue in the case, namely, the identity of the attacker, and because the defendant's challenge to the methodology affected the weight of the testimony and not its reliability, we conclude that the trial court properly admitted the testimony. Id. at 552. [Emphasis added.]
So, too, in the case at bar, the defendant's objections to the methods and procedures used by the state go to the weight, not the admissibility of the proffered evidence.
Finally, State v. Kirsch, 263 Conn. 390 (2003), addresses the defendant's claim that urinalysis is the "least reliable" of the three methods of testing for alcohol in the body. In Kirsch, the defendant objected to the admission of the result of the single blood alcohol test done at the hospital. The hospital used the "enzyme method" to test the defendant's blood alcohol content, rather than the "gas chromatography" method, which the defendant contended was the "gold standard" method of detecting alcohol in a subject's blood. After pointing out that the Commissioner of Public Safety had approved the "enzyme method" as one of four acceptable methods for detecting blood alcohol content (Regs., Conn. State Agencies § 14-227a-3a), the court held that any objections that this methodology was less reliable than any other method went to the weight of the evidence, not its admissibility. Id. at 404-07. Thus, there is no legal requirement that the "best" or "most reliable" scientific method be used, just that the method selected possesses "sufficient indicia of legitimacy" to pass muster under Porter. See Porter at 91.
Indeed, as scientific methods progress over time, it is likely that the methods currently used to test blood alcohol levels will be supplanted by newer and more accurate methods.
For the reasons stated above, urinalysis meets this criteria, even if there are other methods which the defendant claims are "more reliable." (See also, State v. Esser, 205 Ariz. 320 324, 70 P.3d 449, (App. 2003): "The question is not whether the scientific community has concluded that the scientific principle is absolutely perfect, but whether the principle or process is generally accepted to be capable of what it purports to be." [Emphasis added].).
In conclusion, once a scientific method has been accepted, scientific evidence of the same type is not subject to a Porter hearing, but may still be challenged in its application, including the propriety of the test procedures and interpretation of the test results. In the case at bar, the proffered scientific evidence is not novel, is subject to clear legislative criteria, and has long been accepted as reliable, most recently in State v. Jones.
For the foregoing reasons, the defendant's motion for a Porter hearing on the admissibility of the chemical urinalysis is denied.