State of Louisiana v. Ben Busby

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

04-1231

STATE OF LOUISIANA

VERSUS

BEN R. BUSBY

************

APPEAL FROM THE TWENTY-SEVENTH JUDICIAL DISTRICT COURT, PARISH OF ST. LANDRY, NO. 01-K-0097-C, HONORABLE ALONZO HARRIS, DISTRICT JUDGE

************

JIMMIE C. PETERS JUDGE

************

Court composed of Sylvia R. Cooks, Jimmie C. Peters, and J. David Painter, Judges.

CONVICTION AND SENTENCE VACATED AND SET ASIDE, AND CASE REMANDED FOR FURTHER PROCEEDINGS.

Earl Taylor District Attorney Twenty-Seventh Judicial District Alisa Ardoin Gothreaux Assistant District Attorney Post Office Drawer 1968 Opelousas, LA 70571 (337) 948-0551 COUNSEL FOR: State of Louisiana

J. Michael Small Kathrine S. Williamson Attorneys at Law Post Office Box 1470 Alexandria, LA 71309 (318) 487-8963 COUNSEL FOR DEFENDANT/APPELLANT: Ben R. Busby PETERS, J.

The defendant, Ben R. Busby, was involved in a November 9, 2000 automobile

accident in which Rebecca Ann Watkins Bridges sustained fatal injuries. On April

24, 2001, a St. Landry Parish Grand Jury indicted the defendant for vehicular

homicide, a violation of La.R.S. 14:32.1. After initially entering a not guilty plea to

the charge, the defendant subsequently changed his plea to guilty as charged.1 The

trial court sentenced the defendant to serve six years at hard labor, with one year of

the sentence to be served without the benefit of probation, parole, or suspension of

sentence. In pleading guilty, the defendant reserved his right, pursuant to State v.

Crosby, 338 So.2d 584 (La.1976), to appeal the trial court’s denial of his motion to

suppress the results of a chemical test for intoxication performed on a blood sample

taken at Lafayette General Medical Center (Lafayette General) in Lafayette,

Louisiana, on the night of the accident. For the following reasons, we reverse the trial

court’s denial of the defendant’s motion to suppress, vacate the conviction and

sentence, and remand the matter to the trial court for further proceedings consistent

with this opinion.

DISCUSSION OF THE RECORD

The accident giving rise to this criminal prosecution occurred in St. Landry

Parish at approximately 3:45 p.m. on November 9, 2000, when a vehicle driven by

the defendant collided with a vehicle driven by Ms. Bridges. Both individuals

sustained serious personal injuries in the accident and were transported to Doctor’s

Hospital in Opelousas, Louisiana, where Ms. Bridges died the next day.

Sometime during the evening of November 9, the defendant was transported

to Lafayette General for further treatment of his injuries. Almost eight hours after the

1 The history of this litigation involves numerous other resolved pretrial issues which have no direct bearing on the issue before this court and will not be discussed. accident, medical personnel at Lafayette General obtained a blood sample from the

defendant and submitted it for testing to establish his blood alcohol concentration.

The test results, when subjected to retrograde extrapolation, indicated that the

defendant had an estimated blood alcohol concentration somewhere between 0.139

to 0.356 grams of alcohol per one hundred cubic centimeters of blood at 3:45 p.m. on

November 9, 2000.

On October 23, 2002, the defendant filed the motion to suppress now at issue

before this court, seeking to have the results of the Lafayette General testing excluded

from evidence at trial. At a February 18, 2003 hearing on the defendant’s motion, the

state stipulated that Lafayette General did not apply the rules and regulations of the

Louisiana Department of Public Safety and Corrections in drawing and testing the

defendant’s blood and that the blood was drawn for medical purposes and not

pursuant to a request by the state. This stipulation constituted the only evidence

presented at the hearing. The trial court took the matter under advisement and, on

February 20, 2003, issued written reasons denying the motion to suppress. The

defendant sought review of this ruling by a writ application to this court. In an

unpublished writ opinion, this court granted the writ application, using the following

language:

WRIT GRANTED AND MADE PEREMPTORY: The trial court erred in denying the Defendant’s Motion to Suppress the defendant’s blood alcohol test results to show a presumption of intoxication. However, the results may be admissible, not as a presumption of intoxication, but as other evidence of intoxication if done in compliance with State v. Honeyman, 560 So.2d 825 (La.1990).

State v. Busby, 03-0434 (La.App. 3 Cir. 5/30/03).

The admissibility issue was not again addressed until immediately before the

beginning of trial on July 12, 2004. At that time, the trial court held a hearing to

2 determine whether the Lafayette General test results met the test for admissibility set

forth by the supreme court in State v. Honeyman, 560 So.2d 825 (La.1990). At the

conclusion of that hearing, the trial court ruled that the state would be able to

introduce the Lafayette General test results. Based on that ruling, and after objecting

thereto, the defendant entered his guilty plea pursuant to Crosby, 338 So.2d 584.

Thereafter, he perfected this appeal, asserting in his sole assignment of error that the

trial court erred in holding that the Lafayette General test results were admissible

against him.

OPINION

The defendant pled guilty to vehicular homicide, a violation of La.R.S. 14:32.1,

which provides in pertinent part as follows:

A. Vehicular homicide is the killing of a human being caused proximately or caused directly by an offender engaged in the operation of, or in actual physical control of, any motor vehicle . . . whether or not the offender had the intent to cause death or great bodily harm, whenever any of the following conditions exists:

(1) The operator is under the influence of alcoholic beverages as determined by chemical tests administered under the provisions of R.S. 32:662.

(2) The operator’s blood alcohol concentration is 0.08 percent or more by weight based upon grams of alcohol per one hundred cubic centimeters of blood.

The state acknowledges that the chemical test involved in this prosecution was not

administered under the provisions of La.R.S. 32:662, and our prior decision granting

the defendant’s writ application requires that the state pursue this prosecution under

La.R.S. 14:32.1(A)(2).

As pointed out in our ruling on the defendant’s writ application, the Lafayette

General test results may still be admissible in the defendant’s prosecution, but only

3 as evidence on the issue of the defendant’s intoxication at the time of the accident.

Honeyman, 560 So.2d 825. In Honeyman, the supreme court established the standard

to be used in determining whether blood alcohol tests are admissible in situations

where the statutory presumption of intoxication is not applicable:

When the state does not rely on the statutory presumption of intoxication, it may use all admissible evidence to prove that a defendant is guilty of vehicular homicide. We stated in [State v.] McElroy, 553 So.2d [456] at 458 [(La.1989)]:

[W]ithout the benefit of the statutory presumption of intoxication, the state may nonetheless endeavor to prove that a defendant was guilty of driving while intoxicated, and, in the process, attempt to use all admissible evidence, including the hospital record, the testimony of the technologist performing the blood alcohol test, and expert testimony concerning the likely effect upon an individual of a given blood alcohol level.

In order for the results of a blood alcohol test to be admissible, the state must prove that the reliability of the test satisfies due process and fairness. We stated in McElroy, 553 So.2d at 458 n. 1:

Should there be no predominant evidence of “careful adherence to strict procedures in administering intoxication tests,” State v. Jones, [316 So.2d 100, 105 (La.1975)], or in the event that a defendant takes issue with the qualifications of a technician, the quality of the testing machine, or the maintenance of the equipment, and so forth, the court, in the interest of due process and fairness, may well be entitled to bar the evidence.

Id. at 829.

The issue to be decided in this appeal is whether the Lafayette General test

results meet the due process and fairness test set forth in Honeyman. In arguing that

the test results do not meet the Honeyman test, the defendant takes issue with the

qualifications of the person who drew the blood; the drawing, handling, and

transporting of the blood to the laboratory; the qualifications of the technologist who

4 tested the blood; the equipment used in testing the blood; the blood testing procedure;

and the conclusions of the toxicologist who promulgated the final results.

Lafayette General Protocol

Dr. Donald W. West, the medical director of Lafayette General’s testing

laboratory and an expert clinical pathologist, testified at the July 12, 2004 hearing

that, on November 9, 2000, the hospital had in place a specific protocol for

determining the blood alcohol concentration of a patient.2 The purpose of having a

protocol is to be assured that the final test result has not been contaminated by

someone mishandling the blood sample.

According to Dr. West, when a blood sample is needed for testing to determine

a patient’s blood alcohol concentration, a phlebotomist or nurse is responsible for

taking the sample from the patient. The protocol specifically requires that the

individual taking the sample use Betadine, not alcohol, to prep the site where the

sample is to be taken to avoid contaminating the sample. He explained that, if used,

alcohol could adversely affect the test results. Once the sample is obtained, the

phlebotomist or nurse who takes the sample is responsible for properly marking it for

identification and immediately transporting it to the hospital’s laboratory.

Dr. West further explained that once the sample is delivered to the laboratory,

a medical technologist bears the responsibility of testing the sample and recording the

results. The medical technologist places the sample in a centrifuge to separate its

solid and liquid elements. Thereafter, the serum portion of the separated sample is

placed in a chemical analyzer which, based on the information it derives concerning

2 The state offered no written documents describing the protocol and relied totally on the witnesses presented to establish its existence and contents.

5 the patient involved and the testing requirements, performs the appropriate tests and

records the results.

According to Dr. West, the laboratory used a Vitros 950 chemical analyzer in

November of 2000. This particular machine uses an enzyme methodology for

measuring the alcohol concentration. Dr. West testified that the enzyme methodology

was the most common methodology used in hospitals for routine medical testing for

alcohol in blood samples in 2000 and that the Vitros 950 was one of the most reliable

and accurate machines available at that time. To insure the accuracy of the Vitros

950, the laboratory required that it be subject to a proficiency test every six months

and that it be calibrated daily. The particular machine involved in this litigation had

been last subject to a proficiency test by an outside agency on September 11, 2000.

According to Dr. West, the results of that outside test were “[a]cceptable.”

Donna Eugene, a phlebotomist employed by Lafayette General, also testified

at the July 12, 2004 hearing concerning the hospital’s protocol. She basically

repeated Dr. West’s testimony concerning the collection of the sample and delivery

to the laboratory. According to Ms. Eugene, included as a part of the identifying

information on the sample are the initials of the person drawing the blood. Her

standard procedure was to obtain the sample, properly mark the vial containing the

sample with the appropriate information, initial the vial, and take it immediately to

the hospital laboratory for testing. She further testified that she normally makes no

notation of her blood-drawing activity in the patient’s medical chart. Thus, the only

physical evidence of her involvement in a particular testing process would be the

presence of her initials on the vial containing the blood sample.

6 Joseph Pham, a medical technologist employed by Lafayette General, testified

that one of his duties in the hospital laboratory is to analyze blood samples submitted

to determine blood-alcohol content. In explaining the procedure used in the

laboratory, Mr. Pham stated that when he receives a specimen for testing, he checks

the name, the hospital number, and the donor information to ascertain that the

“sample is appropriate and intact.” He testified that he then places the sample in the

centrifuge and after the solids are separated from the liquids, he places the serum in

the Vitros 950 analyzer. The 950 analyzer then reads the bar code on the sample and

performs the appropriate test.

Dr. Felix Adatsi, a Lansing, Michigan toxicologist and the individual who

performed the retrograde analysis of Lafayette General’s test results, also testified for

the state at the July 12, 2004 hearing. Dr. Adatsi agreed with Dr. West concerning

the acceptance by the scientific and medical communities of the accuracy and

appropriateness of the use of enzyme methodology and the Vitros 950 analyzer in

determining blood alcohol concentration in an individual. He also agreed with Dr.

West that enzyme methodology is the method used almost exclusively by hospitals.

Application of Lafayette General’s Protocol to this Case

Dr. West was not present at Lafayette General when the defendant’s blood was

drawn and tested. Therefore, he could only describe the hospital protocol applied to

the procedure and evaluate the defendant’s hospital record to see to what extent that

record reflected that the protocol was followed. He pointed out that the hospital

record contained the notation, “Serum drawn at 11:26 pm,” and, from that notation,

he concluded that the sample was drawn from the defendant at that time.

7 Mr. Pham testified that he worked on the evening of November 9, 2000, and

performed the analysis on the defendant’s blood sample. In doing so, he followed the

procedure set forth in the laboratory’s operating manual. He placed the sample in the

centrifuge to separate the solids from the liquid and then placed the serum in the

Vitros 950 analyzer which read the bar code on the sample and performed the

appropriate test. According to Mr. Pham, he ran only one test on the defendant’s

sample.

Thereafter, the results were provided to Dr. Adatsi, who performed the

retrograde extrapolation calculations. Dr. Adatsi testified that after adjusting for the

fact that Lafayette General tested serum rather than whole blood, and after adjusting

for the fact that individuals have varying alcohol absorption and elimination rates, he

performed the retrograde extrapolation to establish the defendant’s blood alcohol

concentration at the time of the accident. Applying these adjustments to the Lafayette

General test results, Dr. Adatsi concluded that the defendant had an estimated blood

alcohol concentration of between 0.139 and 0.356 grams of alcohol per one hundred

cubic centimeters of blood at 3:45 p.m. on November 9, 2000, with the average

ranging from 0.193 to 0.195.

Analysis of the Defendant’s Challenges to the Test Results

In challenging the various aspects of Lafayette General’s protocol and testing

procedure, the defendant compares the step-by-step record of these proceedings to

that described in Honeyman, 560 So.2d 825. He argues that in comparison, Lafayette

General’s protocol and performance is so deficient that it violates the due process and

fairness standard set forth in Honeyman.

8 In summarizing the evidence presented in Honeyman, the supreme court stated

the following:

In the instant case, the technician who drew defendant’s blood was trained, certified, and experienced. He drew the blood within three hours of the accident. The kit he used to draw the blood contained a preservative which inhibits any ethanol (alcohol) production in the tubes used to store the blood. He gave the blood to the chemist the day after the accident. The next day, the chemist performed the blood analysis. She was required to follow and did follow the crime lab’s procedures, which exceeded the requirements of Department of Public Safety regulations. La.Admin.Code tit. 55:I, §§ 551-553 (1987); see also 14 La.Reg. 360 (1988) (to be codified at La.Admin.Code tit. 55:I, §§ 551- 563). She was trained, took frequent proficiency tests, and was certified as a blood alcohol analyst by the Louisiana Department of Public Safety. She routinely inspected and maintained the gas chromatograph. Prior to analyzing defendant’s blood sample, the chemist calibrated the machine by analyzing four samples of known blood alcohol content. The calibration procedure spot checks the chemicals used in the calibration because the results of the samples confirm each other. She analyzed defendant’s blood sample in duplicate. The results of the gas chromatograph were shown to be reliable by proficiency tests regularly performed on samples sent from the University of Tennessee Toxicology Lab and crime labs in Monroe and Alexandria. Under the circumstances, we find that the reliability of the blood alcohol test satisfies due process and fairness.

Id. at 829.

In the matter before us, Ms. Eugene was the only person presented as qualified

to draw the defendant’s blood. She had been employed by Lafayette General as a

phlebotomist for twelve years and was so employed on November 9, 2000.

According to Ms. Eugene, she received her training in the United States Army

Reserve, but was not certified or licensed in her field. Mr. Pham obtained a

bachelor’s degree in medical technology in 1997 and began working for Lafayette

General thereafter. The record contains no evidence that he took proficiency tests to

hone his skills or that he was certified by the Louisiana Department of Public Safety.

While there is evidence that some form of calibration of the laboratory equipment

9 took place daily, the record contains no evidence of the extensive checking performed

by the chemist in Honeyman. Additionally, Mr. Pham analyzed the defendant’s

sample only once as opposed to twice in Honeyman.

Thus, it is clear that the evidence before us is significantly less than that

presented in Honeyman. However, we do not find that the supreme court intended

to suggest that each testing procedure must meet or exceed the evidence presented

by the state in that case. Instead, the supreme court merely established that a due

process and fairness standard is to be applied to each individual factual situation.

Furthermore, we need not evaluate each and every protocol step in the case before us

to determine whether the overall protocol satisfies due process and fairness standards

because we find that the state failed to establish that Lafayette General followed its

own protocol in testing the defendant’s blood. Specifically, there is nothing in the

record to establish who took the defendant’s blood sample, or if it was taken

according to Lafayette General’s established protocol.

Dr. West was not at the hospital on the evening of November 9, 2000, and

could not identify the person who took the sample from the defendant by examing the

medical records. Ms. Eugene described how she would have taken the sample had

she been the person to do so, but never testified that she drew the blood in this case,

or that she was even working at the hospital on the evening of November 9, 2000.

Mr. Pham could not recall who delivered the blood sample to him. Of significance

is Ms. Eugene’s testimony that she did not normally make a medical chart entry when

she took a blood sample from a patient. Thus, the only evidence of her activity would

have been the presence of her initials on the vial used to transfer the blood sample to

10 the hospital laboratory. In this case, that vial no longer exists so there is no evidence

of her involvement, if any, in the defendant’s case.

The identity and qualifications of the person drawing the blood is critical in

this matter because both Dr. West and Ms. Eugene testified concerning the

importance of not using alcohol to prep the site of the blood sample extraction. Thus,

we have an acceptable protocol with regard to the drawing of the blood, but have no

evidence that the protocol was followed in this particular instance. Without evidence

of this critical part of the testing process, one cannot say that the test results are so

reliable as to satisfy due process and fairness. Therefore, we find that the trial court

erred in ruling that the test results were admissible, and it therefore becomes

unnecessary to address the defendant’s other arguments.

DISPOSITION

For the foregoing reasons, we reverse the trial court’s denial of the defendant’s

motion to suppress the results of the blood alcohol concentration test performed at

Lafayette General Medical Center and, in doing so, vacate the defendant’s conviction

and sentence. We remand this matter to the trial court for further proceedings

consistent with this opinion.

CONVICTION AND SENTENCE VACATED AND SET ASIDE, AND CASE REMANDED FOR FURTHER PROCEEDINGS.