challenging admission of result of blood alcohol test in prosecution for driving under influence of intoxicating liquorSummary of this case from State v. Boutin
Submitted April 1, 1958.
Decided April 24, 1958.
1. Where the State in a complaint for operating a motor vehicle on a public way while under the influence of intoxicating liquor seeks to establish intoxication by means of a blood analysis it is incumbent on it to establish the essential links in the chain of evidence relied on to identify the blood analyzed as being the blood taken from the respondent.
2. In a complaint for operating a motor vehicle on a public way while under the influence of intoxicating liquor, a letter received by the chief of police from the State Board of Health stating that a blood sample said to represent that of the respondent and submitted by a motor vehicle inspector was found to contain a certain percentage of alcohol was hearsay and incompetent evidence.
3. Nor was such letter admissible under the Uniform Business Records as Evidence Act (RSA ch. 521) since it was not a record of the office of the chief of police.
TRANSFER, to the Supreme Court of a question of law from the Keene municipal court under RSA 502:24. The complaint and warrant charges the defendant with operating a motor vehicle on a public way while under the influence of intoxicating liquor. RSA 262:19 (supp.); Laws 1955, c. 282, s. 1.
The pertinent part of the transferred case allowed by Lane, associate justice of the Keene municipal court is as follows:
"This is a criminal complaint in which the defendant is charged with having operated a motor vehicle on the public ways of New Hampshire, while under the influence of intoxicating liquor. The Chief of Police of Keene testified over the objection of the defendant that in the ordinary course of his business as a Chief of Police he received a communication from the State Department of Health relating to a laboratory analysis of `the sample of blood said to represent that of Jon G. Reenstierna' and said letter (marked Exhibit A and made a part thereof) was admitted in evidence. [Exhibit A is addressed to the chief of police, Keene, dated November 15, 1957, and signed by the Chief of Bureau of the State Department of Health and reads as follows]: `The sample of blood said to represent that of Jon G. Reenstierna, submitted by Motor Vehicle Inspector Lysitt and received in this laboratory on November 14, 1957 was found upon analysis to contain 0.15 per cent alcohol by weight.' There was evidence from a doctor that a blood sample was taken from the defendant, but there was no further evidence to identify the blood sample taken with the report contained in the letter from the State Board of Health. At the time of introduction of the evidence the defendant objected to the introduction of the letter and at the conclusion of the evidence moved to strike the letter from the record. On being overruled by the Court, the defendant having been found guilty appealed and requested that the matter of the Court's ruling on the admission of the evidence be transferred to the Supreme Court."
The State furnished no brief.
William D. Tribble for the defendant.
The utilization of probative methods developed by modern medicine and science as an aid for a judge or jury to determine disputed questions of fact has received hospitable recognition in this state by both judicial decision and statute. State v. Thorp, 86 N.H. 501; State v. Mihoy, 98 N.H. 38; Groulx v. Groulx, 98 N.H. 481; State v. Sargent, 100 N.H. 29; RSA ch. 522; RSA 262:20. In motor vehicle offenses a chemical test to determine intoxication is considered one example of a reliable scientific method, the validity of which is not open to serious objection here or elsewhere. RSA 262:20; State v. Sturtevant, 96 N.H. 99; State v. Baron, 98 N.H. 298; Breithaupt v. Abram, 352 U.S. 432. In the present case the defendant does not contest the validity of the statute but contends that the result of the chemical test was erroneously admitted in evidence because of the manner in which it was produced in court. See VII Wig. Ev. (3rd ed.) s. 2129 (supp.).
The State has the burden of proving that the chemical test for intoxication was correctly administered in the particular case. McCormick, Evidence, s. 176, p. 377 (1954); Ladd and Gibson, Legal-Medical Aspects of Blood Tests, 29 Va. L. Rev. 749, 755-758. One of the most important prerequisites for the admission of the results of chemical tests for intoxication is that the specimen analyzed shall be traced to the accused. Note, 51 Mich. L. Rev. 72, 79 (1952); anno. 21 A.L.R. (2d) 1216. The State is required to establish the essential links in the chain of evidence relied on to identify the blood analyzed as being the blood taken from the accused. Rodgers v. Commonwealth, 197 Va. 527; Estes v. State, 162 Tex. Cr. R. 122; Utah Farm Bureau Ins. Co. v. Chugg, 6 Utah (2d) 399. A recent comprehensive study of the decisions relating to the proper presentation of chemical tests for intoxication including practical suggestions is found in Donigan, Chemical Tests and The Law (The Traffic Institute — Northwestern University 1957) cc. VI and VII.
In this case the blood sample taken from the defendant has not been identified with and traced to the analysis made by the State Department of Health. However likely it may be that they are one and the same, the State has failed to prove it. The letter received by the chief of police was not a record of his office which is admissible under the Uniform Business Records as Evidence Act. RSA ch. 521. McGowan v. Los Angeles, 100 Cal.App. (2d) 386. Since the letter introduced in evidence by the chief of police was hearsay and incompetent, and there was no other evidence to connect the blood sample taken from the defendant with the sample analyzed, the order must be
Defendant's exception sustained.
DUNCAN, J., dissented; the others concurred.
My differences with the majority of the court revolve about the question of whether an opinion upon the merits may properly be expressed. The respondent's appeal to the Superior Court vacated the judgment of the municipal court (State v. Cook, 96 N.H. 212), at least until the respondent should fail to prosecute his appeal, which is not shown to be this case. RSA 599:3, 4. The appeal vested jurisdiction in the Superior Court. Upon trial of the appeal, the question now presented may never arise. If it does, the Superior Court has authority to transfer it to this court. RSA 490:9; 491:17. See State v. Cote, 95 N.H. 248, 252. In my opinion the circumstances of the pending transfer cast a duty upon this court to express no opinion on the question presented. Petition of Turner, 97 N.H. 449. See State v. Deane, 101 N.H. 127, 131.