Destruction of Evidence: A Post Script to Our Freedom through Independence Blog Series.
Last week we published our blog series demonstrating how independent testing and independent analysis of the state's blood and urine samples may help drivers beat DWI urine or DUI blood tests. After we concluded the series, we ran into an interesting wrinkle when we sought to have two urine samples independently analyzed.
The prosecutor informed us the government had destroyed the urine samples!
I believe the state has a duty to retain such critical evidence until the case has concluded. It should not destroy any blood or urine test samples unless and until the driver has actual knowledge the state intends to destroy the sample and waives the right to examination.
In response, we amended our motions to suppress admission of the test results and to dismiss the DWI charges. We filed the following motions:
1) Dismissing the Complaint based on the State's destruction of the evidence. Specifically, admission of the urine test report violates Defendant's constitutional rights to Confrontation, pursuant to Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), because the state intentionally destroyed the evidence, thereby denying Defendant the opportunity to independently inspect, evaluate and test his alleged urine sample;
2) Dismissing the Complaint based on the State's destruction of the evidence. Specifically, admission of the urine test report violates Defendant's constitutional rights to Due Process, pursuant to California v. Trombetta, 467 U.S. 479, 104 S. Ct. 2528 (1984), because the state intentionally destroyed the evidence, thereby denying Defendant the opportunity to independently inspect, evaluate and test his alleged blood sample;
3) The State has violated the Minnesota Rules of Criminal Procedure and Defendant's Due Process rights by failing to provide Defendant with his blood sample as part of his requested discovery;
4) The law of spoilation of evidence is inconsistent with the Minnesota Rules of Criminal Procedure and cannot be applied in light of the rights of Defendant to Due Process and Confrontation; and
5) Dismissing the charges against Defendant as the State's destruction of Defendant's urine sample impermissibly shifts the burden of persuasion onto Defendant for a key element of the offenses with which he is charged.
A judge had previously ruled in our favor when presented with these issues. In a DWI case we brought to jury last July, the judge had ordered the blood test suppressed because the state had destroyed the blood sample. We had challenged admissibility based our client's right to confrontation, among other things.
In his order, the judge explained why due process required him to suppress the state's evidence:
Due process requires that a criminal defendant have the same access to information as the State when the State offers the result of a scientific test. The State did not give Defendant an opportunity to stop destruction of this evidence. If the State offers into evidence the blood-test report, the State must also call the person who prepared the blood-test report, and a person who can testify as to the chain of custody. Without access to the blood sample, Sickmann is denied the right granted in the rules of discovery to reproduce the state's test results. The reproducibility of scientific test results is an important factor when considering the reliability of the test results.
The judge also explained why the Sixth Amendment's Confrontation Clause requires suppression:
The BCA's policy of destroying the blood or urine sample, therefore, eliminates [Defendant]'s ability to reproduce the blood test results and limits the methods available to him to challenge the reliability of those results. The scope of the [Defendant]'s cross-examination of the witnesses who prepared the test report is unconstitutionally limited.
The Sixth Amendment's guarantee that an accused shall enjoy the right to be confronted by his accusers is vindicated only upon effective and adequate cross-examination of those witnesses. The BCA's policy of destroying the blood sample after a predetermined period of time renders [Defendant]'s opportunity to cross-examine the state's witnesses inadequate and ineffective. Because [Defendant]'s cross-examination of the witnesses who prepared the blood test report is inadequate and ineffective in light of his inability to reproduce the results, his rights under the Confrontation Clause are violated and this violation precludes admission of the blood test report.
Accordingly, this Court must conclude that at subsequent trial of this matter, the blood test report of the BCA is inadmissible.
We will see if other judges understand the constitution as Judge A.P.
Check out our other postings on this issue.
Part 1: Freedom through Independence: Crises in Our Nation's Forensic Science System
Part 2: Freedom through Independence: Erroneous DWI Blood Test Results
Part 3: Freedom through Independence: Erroneous DWI Urine Test Results
Part 4: Freedom through Independence: Erroneous DWI Intoxilyzer 5000 Breath Test Results