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June 7, 1983


Appeal from an order of the Circuit Court for Dane County: Moria Krueger, Judge.

Petition to Review Granted.

Gartzke, P.j., Dykman, J. and W.l. Jackman, Reserve Judge.

The opinion of the court was delivered by: Gartzke

The state appeals from an order suppressing defendant's blood alcohol test result. The issue is whether the state violated defendant's due process rights when the state consumed her blood sample by testing for drugs after she moved to independently test the sample. We conclude that she was denied due process. We therefore affirm.

On August 8, 1980 defendant drove a car which collided with another. The accident injured her passenger, who died two days later. A 10 cc blood sample was taken from defendant and analyzed the day of the accident. The test result showed defendant's blood alcohol content was .121 percent.

January 29, 1981 a criminal complaint issued, charging defendant with homicide by intoxicated use of a motor vehicle, contrary to sec. 940.09, Stats. 1979-80. *fn1 Defendant's initial appearance was February 4, 1981. February 5, 1981 she served the prosecutor with a motion to allow her to inspect and test the blood sample. February 13, 1981 the prosecutor directed the State Crime Laboratory to test the sample for all controlled substances. The tests were performed between February 16 and 24, 1981. No controlled substances were found. February 26, 1981 defendant was bound over after a preliminary hearing. April 16, 1981 the remaining blood sample (described by the trial court as a few drops) was turned over to defendant's expert, but the sample was too small for an alcohol analysis.

A State Crime Laboratory serologist testified at the suppression hearing. About 8.6 cc of the sample remained when he received it February 16, 1981. He split the sample, 5 cc to test for basic drugs and 3.6 cc for acid and neutral drugs. He said that 10 cc is the minimum amount to perform an adequate test for all controlled substances. Less blood would have been needed had he been told to look for a specific drug. He detected no controlled substances. He said that a blood alcohol test requires only one to two cc of blood.

The trial court said the state furnished no reason to question the retest value of a blood sample six months old. The court said it was impossible to determine whether the prosecutor failed intentionally or through oversight to direct that one or two cc of blood be saved from the second analysis for retesting by defendant. It found that the state had failed to show that unavoidable investigative destruction had occurred, and concluded that the good or bad faith of the state need not be determined. The court concluded that the evidence was material to defendant's guilt or innocence, that defendant's due process rights had been irretrievably denied under Brady v. Maryland, 373 U.S. 83 (1963), and that suppression of the test result was the only available remedy. *fn2

Brady held that suppression of evidence favorable to an accused who had made a specific request for such evidence violated due process where the evidence is material to guilt or innocence, regardless of good or bad faith. State v. Amundson, 69 Wis. 2d 554, 577, 230 N.W.2d 775, 787 (1975). Because the destruction of evidence may prevent a showing that it was favorable to the defense, the Amundson court held:

he inability of the defendant to show that the destroyed evidence was exculpatory does not alone defeat the claim that its destruction and nondisclosure by the prosecution denied the defendant due process of law given the showing that the evidence was clearly material to the issue of guilt or innocence.

69 Wis. 2d at 578, 230 N.W.2d at 788.

The trial court concluded that the sample was material. We agree. In State v. Booth, 98 Wis. 2d 20, 27, 295 N.W.2d 194, 198 (Ct App 1980), we held that the materiality of a breathalyzer ampoule was "obvious" in a prosecution for operating a motor vehicle while under the influence of an intoxicant. Here the blood sample is likewise material to defendant's guilt or innocence. Intoxication is an element of the crime she is charged with having committed, sec. 940.09, Stats. 1979-80. In a prosecution pursuant to the same statute, Scales v. State, 64 Wis. 2d 485, 494, 219 N.W.2d 286, 292 (1974), held that under sec. 885.235(1) (c), Stats., an analysis showing a blood alcohol content equal to or in excess of .1 percent is prima facie evidence of intoxication. *fn3 Accordingly, the accuracy of the blood alcohol test result is material to whether defendant violated sec. 940.09, Stats. 1979-80.

The state points out that defendant offered no proof that the blood sample, six months old when she demanded its production, was still suitable to test for blood alcohol content. The state contends that absent such proof, defendant has not established materiality. It is, however, undisputed that the state had the blood sample until the unusable remnant was turned over to defendant's expert. Because defendant could not know the conditions under which the state kept the blood sample, she could not have established its suitability for testing when she sought an independent test.

Under these circumstances, we conclude that the blood sample is presumptively material, subject to the state's establishing immateriality by showing that the blood sample was no longer suitable for testing when requested by defendant. Compare State v. Raduege, 100 Wis. 2d 27, 32-33, 301 N.W.2d 259, 262 (Ct App 1980) (breathalyzer ampoule is presumed material, subject to rebuttal). The state did not ...

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