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Hassler and blood/alcohol testing

Back in 1987, Rozanna Lucas got into a car accident.  A sample of her blood drawn at the hospital showed she had a blood/alcohol level over the legal limit.  One problem:  the test was taken 2 1/2 hours after the accident, and the law provided that the results were admissible only if the test was taken within two hours of the alleged violation.  In Newark v. Lucas, the Supreme Court upheld the admission of the test results, drawing a distinction between the two types of driving while intoxicated offenses.  The first requires proof of impairment:  the state has to prove your ability to drive was impaired by alcohol.  The second offense is a per se violation:  you're guilty simply if you have more than the permitted blood/alcohol level.  The Court held that a reading outside the 2-hour time limit couldn't be admitted to prove the per se offense, but, with expert testimony, could be admitted to prove the impairment offense.

Two years ago, John Mayl got into a car accident, killing a construction worker.  A blood test taken at the hospital within about twenty minutes of the accident showed he had a blood/alcohol level of .207, more than twice the legal limit.  His conviction for aggravated vehicular homicide was thrown out by the Supreme Court in State v. Mayl because the law required "substantial compliance" with Department of Health regulations regarding the taking of blood-alcohol tests, and here the hospital didn't have a permit from the ODH, and didn't keep the blood sample for a year as ODH regulations required.  No substantial compliance, no admissibility.

At about the same time as Mayl's accident, Michael Hassler got into one which killed his passenger.  He refused a request to submit to a blood test, so the police got one pursuant to a warrant -- seven and a half hours after the crash.  The trial court tossed the test results, and the court of appeals concurred, both holding that Mayl had overruled Newark, and required that the test be taken within two hours to be admissible.

Last week, in State v. Hassler, the Supreme Court reversed.  Mayl, the Court explained, only had to do with compliance with ODH regulations; it had nothing to do with the two-hour time limit, and Newark was still good law on that point.  Again, the Court distinguished between the impairment and per se violations:  Hassler was being prosecuted for aggravated vehicular homicide under the impairment violation of the DWI statute.  So the evidence could come in, as long as there was expert testimony to back it up.

There's been a fair amount of wailing and gnashing of teeth in the defense bar since Hassler came down, and there's certainly room for criticism of the decision.  The two-hour requirement contained in the statute at that time was in the same place as the "substantial compliance" requirements, and, as the dissent in Hassler points out, one could at least argue in Newark that a test taken a mere half-hour beyond the limit still "substantially" complied with the statute's requirements, an argument that is not available in Hassler.

Still, it may be that some of the handwringing is overwrought.  First, the legislature has since amended the statute.  It now not only provides for a three-hour time limit, but specifically adopts Newark's holding that in a prosecution under the compliance section of the DWI statute, test results are admissible with expert testimony.

Second, the nature of the expert testimony provides some fertile ground for defense cross-examination.  The testimony has to be more than simply "backdating" the results:  it's not enough for an expert to testify, "If the blood-alcohol level was X four hours after the accident, then it would've been Y at the time of the accident."  Why?  Because that solely affects the per se violation, and even Newark holds that that's off-limits.  Instead, the expert would have to testify on impairment, i.e., that if the person had a BA reading of X four hours after the accident, he would've been impaired at the time of the accident.  Especially if the reading is marginal (Hassler's was .067), and depending how long the interval was, that may not be a simple matter.

What's more, attempting to extrapolate a BA reading in this fashion requires a lot of information that the expert isn't going to have unless you're dumb enough to have your client talk to him.  Height, weight, what your client had to eat, when he ate it, what physical activity he might (or might not) have engaged in between the time of the accident and the time of the reading, are all some of the factors which have to be taken into consideration in determining whether the BA level at the time of the incident would've been sufficient for impairment.

There's a lot of stuff to work with there for a creative attorney.

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