September/October 2003, Page p48

Part 2: Essential cases to know in handling challenges to scientific evidence
By Leonard R. Stamm

Fourth Amendment
No discussion of cases that may be used to challenge scientific evidence would be complete without acknowledging challenges based on Fourth Amendment cases to the search and seizure of samples of breath, blood, urine, or of the defendant’s person. At the same time, this area is the subject of treatises, numerous cases, and articles on a subject that is too broad to be adequately covered in this article.

Blood Tests
In Schmerber v. California, 384 U.S. 757 (1966), the Supreme Court approved the forcible extraction of blood without a warrant where the state had probable cause to seize the defendant’s blood for an alcohol test and established that due to the dissipating nature of blood alcohol there was no time to obtain a search warrant. The police acted within the Fourth Amendment requirement of reasonableness when they took the defendant to a medical facility, where the risk of infection was minimized, to have blood drawn, even though they did not obtain a warrant which would normally be required for this type of search. The Court was careful to limit its holding to the facts of the case before it, stating:

It bears repeating, however, that we reach this judgment only on the facts of the present record. The integrity of an individual’s person is a cherished value of our society. That we today hold that the Constitution does not forbid the States minor intrusions into an individual’s body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions. Schmerber, 384 U.S. at 772.

Police have attempted to rely on Schmerber to justify obtaining a blood sample to obtain evidence of drug and controlled dangerous substance use, where the evidence dissipates more slowly than blood alcohol, and where there may be an opportunity for police to obtain a warrant. A number of the courts that have considered this issue appear to be in agreement that to extract blood for drug testing, as opposed to alcohol testing, a warrant is required. State v. Jones, 895 P.2d 643 (Nev.1995); United States v. Pond, 36 M.J. 1050 (A.F.C.M.R. 1993) (obtaining urine sample without advising defendant under California implied consent law or obtaining warrant violated Fourth Amendment — excellent discussion of implied consent and Schmerber); State v. Moylett, 836 P.2d 1329 (Or. 1992) (three blood samples obtained after defendant refused alcohol test — two samples taken pursuant to warrant allowed in non-DWI prosecution; no samples allowed on DWI count); State v. Flannigan, 978 P.2d 127 (Ariz. App. 1999) (where there was no evidence defendant consented to blood draw for drugs, state failed to show exigent circumstances justified warrantless search).
Some jurisdictions allow the defendant to choose the type of alcohol test to be administered, blood, breath or urine. In California, requiring a blood test of drunk driving suspects who consented to take either breath or urine, a choice permitted by statute, was held to violate the Fourth Amendment. Nelson et al. v. City of Irvine, 143 F.3d 1196 (9th Cir. 1998).

Statutory and regulatory requirements
In many jurisdictions, an alcohol test must be performed within either two or three hours of the person’s apprehension by police. In some jurisdictions the test is excluded if administered out of time. Some jurisdictions allow the test in evidence, People v. Wager, 594 N.W.2d 487 (Mich. 1999), while others allow it but deny the state the benefit of statutory presumptions and require the state to call an expert to explain the meaning of the test result. E.g., City of Newark v. Lucas, 532 N.E.2d 130 (Ohio 1988); Hasselhoff v. State, 508 A.2d 1030 (Md.App. 1986). Others allow the test in evidence if it can be extrapolated back to within three hours of the time of driving. State v. Allen, 570 S.E.2d 34 (Ga.App. 2002); Commonwealth v. Senior, 744 N.E.2d 614 (Mass. 2001) (finding retrograde extrapolation reliable). Others require extrapolation back to the time of driving or the test result cannot be admitted at all. Stewart v. State, 103 S.W.3d 483 (Tex.App. 2003) (test result is irrelevant if not extrapolated back to time of driving under Texas statute).
In Pennsylvania, a statute that conclusively presumed guilt based on a test conducted after driving and did not allow the defendant to do a retrograde extrapolation to prove a possible BAC under the statutory limit at the time of driving was held to violate due process in Commonwealth v. Barud, 681 A.2d 162 (Pa. 1996).1

Margin of error
Many states by regulation or otherwise recognize a tolerance or margin of error for test results. If the state’s statute criminalizes a test reading, as opposed to a BAC level, the legislature is deemed to have considered the margin of error, and found it reasonably tolerant. If the state’s statute criminalizes an actual level of BAC, then the fact finder should consider the margin of error in the defendant’s favor. Haynes v. Dept. of Public Safety, 865 P.2d 753 (Alaska 1993).2 

Rules of evidence,
other than Rule 702
All jurisdictions, as a result of legislation, rule making, or case law, have rules regarding the admission of evidence in addition to or in conjunction with statutory or regulatory requirements for the admission of the scientific evidence that should be considered when challenging scientific evidence. Many of the jurisdictions that have codified their rules of evidence closely track the Federal Rules of Evidence. For this reason the following discussion will primarily cite the Federal Rules of Evidence other than Rule 702.

Relevance and unfair prejudice
The Federal Rules of Evidence, common law rules of evidence, and most state rules, require that for evidence to be admitted it must be relevant, i.e., “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Federal Rules of Evidence, Rule 401; Acklin v. State, 722 So.2d 1264 (Miss.App. 1998) (breath test administered after statutory two-hour limit is admissible in the absence of evidence showing it is unreliable). For example, in Jayne v. State, 24 P.3d 920 (Or.App. 2001), the Oregon Court of Appeals applied the Oregon version of Rule 401 to hold that a urine test showing the presence of alcohol and drugs was properly excluded because the state was unable to correlate the test to relate to impairment at the time of driving to sustain an impaired driving charge. In State v. Homan, 732 N.E.2d 952 (Ohio 2000), the Supreme Court of Ohio held that unless the standardized field sobriety tests are performed in strict compliance with NHTSA guidelines, the tests are too unreliable to be considered by the court in deciding whether the officer had probable cause to arrest. See also, People v. Ward, 178 N.Y.S.2d 708 (N.Y.Co.Ct. 1958) (blood test excluded because alcohol swab used).

A number of decisions have addressed the relevance of partition ratios. In Guthrie v. Jones, 43 P.3d 601 (Ariz.App. 2000), the court held partition ratio was irrelevant to the per se offense but relevant to the non-per se offense. See also, People v. Bransford, 884 P.2d 70(Ca. 1994) (partition ratio irrelevant in light of statute criminalizing amount of alcohol in the breath); State v. Hanks, 772 A.2d 1087 (Vt. 2001) (partition ratio relevant to non per se offense).
Federal Rules of Evidence, Rule 403 also provides: Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

In Jaynes, the court also agreed with the trial court; that although the urine test evidence was marginally relevant with respect to a manslaughter and careless driving charge, that the probative value of the test result was outweighed by the danger of unfair prejudice. In State v. McClain, 525 So.2d 420 (Fla. 1988), the Florida Supreme Court agreed with the trial court that the probative value of a trace of cocaine in the blood of a person with a .14 BAC was substantially outweighed by the danger of unfair prejudice, and upheld the exclusion of the evidence.


Authentication

Chain of custody
Where the proponent is offering physical evidence that has been tested in a laboratory or the laboratory results, many jurisdictions require a showing that the item seized by the police is the same item that was analyzed. Some jurisdictions have held evidence inadmissible where the state fails to sufficiently tie the evidence that was seized to the evidence that was analyzed. State v. McDonald, 697 P.2d 1328 (Mont. 1985); State v. Nygaard,
426 N.W.2d 547 (N.D. 1988); State v. Williams, 392 S.E.2d 181, 182 (S.C. 1990); People v. Sansalone, 146 N.Y.S.2d 359 (1955); People v. Pfendler, 212 N.Y.S.2d 927 (1961); Bauer v. Veith, 130 N.W.2d 897 (Mich. 1967); Joiner v. Utterback,195 N.W. 594 (Iowa 1923); State v. Foster, 422 P.2d 964 (Kan. 1967).

Documents
Federal Rules of Evidence, Rule 902 contains methods for a proponent to authenticate business records. It closely tracks rule 803(6) and 803(8), the business and public records exception to the hearsay rule. Rule 902(a) (11) provides:
(11) Certified Domestic Records of Regularly Conducted Activity.—The original or a duplicate of a domestic record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration of its custodian or other qualified person, in a manner complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority, certifying that the record—(A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;(B) was kept in the course of the regularly conducted activity; and(C) was made by the regularly conducted activity as a regular practice.A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.


The state failed to comply with the Maryland version of this provision in State v. Bryant, 761 A.2d 925 (Md. 2000). In Bryant, the certification attached to a toxicology report containing the defendant’s blood alcohol level was not under oath and the custodian did not certify “that the report was made at or near the time of the occurrence of the matters that it sets forth by a person with knowledge of those matters or that it was made and kept by the regularly conducted business activity as a regular practice.” Bryant, 761 A.2d at 929. Additionally, the state’s toxicologist could have supplied extrinsic testimony to satisfy the foundational requirements, but he could not state, “that the report was made at or near the time of the tests or that it was made by a person with knowledge.” Bryant, 761 A.2d at 930. As a result, it was error to admit the report and the conviction for homicide was reversed. The court did not find it necessary to address the issue of whether the report was “pathologically germane” to treatment where it was prepared after the defendant was discharged from the hospital and only after the State’s Attorney subpoenaed the records.
In State v. Lake, 784 N.E.2d 162 (Ohio App. 2003), the required substantial compliance to admit the breath test result was not shown where the calibration solution certificate was inadmissible for failure to comply with Ohio Rules of Evidence, Rule 1005.


Hearsay
Often the government will seek to introduce blood and breath tests, medical records, and laboratory reports, by introducing the report without producing the chemist or analyst who made the report. In order to survive a hearsay objection, the government offers the evidence under either Federal Rules of Evidence, Rule 803(6), the business record exception, or Rule 803(8), the government records exception, or the comparable state provision.
In United States v. Oates, 560 F.2d 45 (2nd Cir. 1977), the court held a law enforcement chemist’s report to be hearsay, not subject to an exception under Federal Rules of Evidence, Rule 803(8) and therefore inadmissible without the chemist. The court significantly held that the prohibition of Rule 803(8) against admitting hearsay reports prepared by law enforcement personnel in criminal cases carried over to Rule 803(6). Thus the government cannot use the business records exception to introduce reports that would violate Rule 803(8). Oates has been criticized by a number of courts. See, State v. Cole, 839 S.W.2d 798 (Tex.App. 1990) (following Oates and discussing the controversy); Steiner v. State, 706 So.2d 1308 (Ala.Crim.App. 1997) (Rule 803(8) exception relating to reports prepared for purpose of prosecution did not apply to certificates for lab).

In Mullinax v. State, 499 S.E.2d 903 (Ga.App. 1998) and Hamilton v. State, 491 S.E.2d 485 (Ga.App. 1997) courts reversed conviction where the courts admitted breath test results that did not comply with the business records exception. In Mullinax the witnesses could not testify the records were made contemporaneously with the tests. In Hamilton, the state laid no business records foundation for inspection certificates other than to show they were “maintained in the log book for the [Intoxilyzer 5000].” In Wray v. State, 751 N.E.2d 679 (Ind.App. 2001), the court erroneously admitted the certification of a breath test operator who testified he had not taken the required training, and therefore the certificate lacked “trustworthiness” under the Indiana version of Rule 803(8).

When the state offers medical records containing test results in evidence, some courts have required that in addition to satisfying the business records exception, there must also be testimony that the test was “pathologically germane” to treatment. State v. Garlick, 545 A.2d 27 (Md.1988); Scannella v. Salerno Importing Co., 275 A.2d 907, 909 (Pa.Comm. 1971); see also, Tims v. State, 711 So.2d 1118 (Ala.Crim.App. 1997) (hospital records were admissible under general evidence principles where the emergency room physician, phlebotomist and laboratory technician all testified to the reasons for the test, the procedures followed, and the reliability of the procedures).

Additionally, since medical records containing a blood alcohol reading are not conducted under the breath and blood testing statute, the statutory inferences may not apply and in some jurisdictions the state may be required to produce an expert to explain the meaning of the result. E.g., Briscoe v. State, 479 A.2d 1385 (Md.App. 1984).


Confrontation
Although the rule against hearsay and the Confrontation Clause have similar roots, they are not co-extensive. The Supreme Court has held that hearsay will generally not violate the Confrontation Clause if it comes in under an exception to the rule against hearsay that is “firmly rooted” or if the hearsay contains other particularized guarantees of trustworthiness. Ohio v. Roberts, 448 U.S. 56 (1980).

In a number of states, courts have upheld admission of test results that either are or contain hearsay, holding that the document’s admission does not violate the Confrontation Clause. E.g., United States v. Wilmer, 799 F.2d 495, 501-02 (9th Cir.1986), cert. denied, 481 U.S. 1004 (1987); State v. Huggins, 659 P.2d 613, 616 (Alaska Ct.App.1982); Brown v. State, 485 S.E.2d 486 (Ga. 1997) (inspection certificate); State v. Jensen, 351 N.W.2d 29, 32-33 (Minn.Ct.App.1984); State v. Conway, 690 P.2d 1128, 1129 (Or.App. 1984), review denied, 695 P.2d 1371 (Or. 1985); cf. State v. King, 445 A.2d 901, 909-12 (Ct. 1982) (toxicology tests); State v. Van Sickle, 813 P.2d 910, 913-14 (Id. 1991) (breathalyzer printout); State v. Smith, 323 S.E.2d 316 (N.C. 1984); State v. Garlick, 545 A.2d 27 (Md.1988) (hospital test was pathologically germane to treatment); Baber v. State, 775 So.2d 258 (Fla. 2000) (citing Garlick and holding medical blood test admissible but “emphasiz[ing], however, that defendants must be given a full and fair opportunity to contest the trustworthiness of such records before they are submitted into evidence”); but see, Kettle v. State, 641 So.2d 746 (Miss. 1994) (admission of laboratory report of drug analysis as a business record in absence of technician violated defendant’s confrontation rights); State v. Miller, 472 S.E.2d 74 (Ga. 1996) (holding Georgia drug statute that required defendant to proffer basis for subpoena for chemist violated the state constitution’s Confrontation Clause).

Two cases in Maryland took the Confrontation Clause analysis further. In Moon v. State, 478 A.2d 695 (Md. 1984), cert. denied, 469 U.S. 1207 (1985), the court of appeals reviewed a hospital blood alcohol test record that did not bear the defendant’s name, contained no information indicating what type of test was performed, and was dated three days after the sample was drawn, and after the defendant had been released from the hospital. The court held that which party bore the burden of producing the lab technician who performed a blood test depended upon whether the test results contained “substantial indicia of reliability.” Moon relied on Supreme Court cases which suggested that unavailability of a reliable witness might not be necessary to overcome a confrontation objection to hearsay testimony where the “utility of trial confrontation is extremely remote.” E.g., Dutton v. Evans, 400 U.S. 74 (1970); United States v. Inadi, 475 U.S. 387 (1986) (raising Dutton’s suggestion to a holding). The court stated:
Here, the witness was present in the courtroom when Moon objected, pointing to a number of discrepancies on the face of the report which raised a doubt as to its reliability. Moon claimed that the hospital records were silent as to the kind of blood alcohol test performed. Dr. Caplan had indicated that while he was generally familiar with the tests employed at University Hospital, he did not know which specific procedure of the many tests used in the hospital was followed. As a matter of fact, when defense counsel sought to have the Doctor explain how a blood test was performed, the trial court cut off the cross-examination in response to the State’s objection. It is obvious to us that, under these circumstances, defense counsel had a sound basis for inquiring what test was used and if the technician was qualified to conduct the test.

Furthermore, the report indicated that it was completed on February 21, and the blood was drawn from the patient on February 18. These facts raise several potentially serious questions counsel may have addressed on cross- examination. Defense counsel in argument had told the trial court that the test was performed on the 21st and the blood drawn on the 18th. He did not know what happened to the blood sample in the interim, that is, how or if it was properly preserved. Cross-examination on whether chemical agents were added to the blood to maintain its stability, if the blood was deposited in a container to avoid evaporation, and if the blood was properly refrigerated to prevent putrefaction was germane to a determination of reliability. See generally American Medical Association, Committee on Medicolegal Problems, Alcohol and the Impaired Driver, A Manual on the Medicolegal Aspects of Chemical Tests for Intoxication (1968). A most important question was whether the blood test was performed on the 21st as part of Moon’s treatment. Moon had been in the hospital three days, been operated on and placed in casts for his injuries prior to February 21st. It would be logical for counsel to inquire how blood drawn on the 18th and tested on the 21st had any diagnostic value for treatment already received. If counsel elicited from the technician that the test was conducted on the 21st in response to a police request, the trial judge may have concluded that the test was not performed in connection with Moon’s treatment and, therefore, was not pathologically germane to the reason Moon was in the hospital. See Yellow Cab Co. v. Hicks, 224 Md. 563, 168 A.2d 501 (1961); Shirks Motor Express v. Oxenham, 204 Md. 626, 106 A.2d 46 (1954); Lee v. Housing Authority of Baltimore, 203 Md. 453, 101 A.2d 832 (1954); Globe Indemnity Co. v. Reinhart, 152 Md. 439, 137 A. 43 (1927). Counsel may even have inquired as to how the test, even if performed on the 18th, was pathologically germane to Moon’s treatment if it were not transmitted to the doctors until the 21st. Under these circumstances, the trial court may have been persuaded that the test was inadmissible.

Moon, 478 A.2d at 703-04. As a result, because the blood test results offered by the prosecution were unreliable on their face, the court held that the utility of cross-examination was not remote, and the State was required to produce the lab technician for cross-examination. The court further held that if the state did not produce the lab technician, in view of the facial irregularities in the test, it was inadmissible. 

Although Moon was a case that dealt with a medical blood test for alcohol, in Casper v. State, 521 A.2d 1281 (Md.App. 1987), the Maryland Court of Special Appeals took the Confrontation Clause analysis one step further in a case where the test was a breath test for purposes of prosecution. Relying on federal Confrontation Clause cases cited above, the Maryland Court of Special Appeals held in its second holding that the government was not required to produce the “non-testing” technician who mixed the simulator solution before offering the test results in evidence, where the test results were facially reliable.

Under the standards set by Casper, a DWI defendant must be allowed to review any “test results” prior to trial. The term “test results” must logically include numerous records created and maintained by state agencies which record data relevant to chemical testing and which may raise questions of reliability. Adherence to the Casper holding requires that these forms be provided in Maryland courts in response to a defendant’s discovery request to enable counsel to make a preliminary determination of reliability of test results. To the extent the determination of the proven accuracy and reliability of the test results rests on hearsay, Casper provides a useful analysis for determining admissibility of the test results.

Casper establishes that reliability is a prerequisite to admissibility, that once the state proves a prima facie case for admissibility the burden shifts to the defendant, and that if successfully rebutted the test may be excluded. It follows that defendants must be granted broad discovery and subpoena powers to give effect to Casper’s holding and to provide defendants a meaningful opportunity to meet their burden of proof. Since the Maryland courts’ analysis in Moon and Casper is based on the Supreme Court’s Confrontation Clause cases, the same rule should apply in all jurisdictions.

Compulsory process
In Washington v. Texas, 388 U.S. 14 (1967), the Supreme Court held that a person was denied his right to compulsory process where the “State arbitrarily denied him the right to put on the stand a witness who was physically and mentally capable of testifying to events that he had personally observed, and whose testimony would have been relevant and material to the defense.” Washington, 388 U.S. at 23. In Pennsylvania v. Ritchie, 480 U.S. 39 (1987), the Supreme Court held that child abuse files potentially relevant to cross-examination of the state witness, but confidential under state law, would be reviewed by the trial judge in camera for a determination of whether they contained exculpatory information. In White v. State, 598 A.2d 1208 (Md.App.1991), the court held that a subpoena directed to the state toxicologist sought testimony that was not relevant and material to the defense, and to the extent that the toxicologist may have offered favorable testimony, the defendant could hire his own expert.
In United States v. Nixon, 418 U.S. 683 (1974), the Supreme Court recognized that even the President of the United States is not immune to a court-issued subpoena.

Discovery
Exculpatory evidence
Brady v. Maryland, 373 U.S. 83 (1963) and its progeny require the government to disclose exculpatory evidence to the defendant. The Court stated:
We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

The concept of exculpatory evidence in Brady includes impeachment evidence. United States v. Bagley, 473 U.S. 667, 681-82 (1985); Giglio v. United States, 405 U.S. 150 (1972) (witness falsely denied testimony was in exchange for non-prosecution agreement). The government must produce in discovery evidence which might impeach or cast doubt on the government’s evidence. It is the prosecutor’s responsibility to gather exculpatory evidence from the police. Kyles v. Whitley, 514 U.S. 419 (1995).

Evidence is material to the defense “if there is a reasonable probability that, had the evidence been [available] to the defense, the result of the proceeding would have been different.” Bagley, 473 U.S. at 682. A “reasonable probability” is “a probability sufficient to undermine confidence in the outcome” and is determined by looking at the totality of the evidence. Kyles.

Potentially exculpatory and bad faith
In Arizona v. Youngblood, 488 U.S. 51 (1988), the police failed to properly preserve semen samples that could potentially have exonerated the defendant. The Supreme Court held in response to the argument that the lower court had properly dismissed the prosecution for the violation of due process:that unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.
Id. at 58. Although the Supreme Court did not agree that the case should have been dismissed, Youngblood did receive the benefit of a negative inference instruction against the police at trial. It read as follows:
If you find that the State has . . . allowed to be destroyed or lost any evidence whose content or quality are in issue, you may infer that the true fact is against the State’s interest.

Youngblood, 488 U.S. 59-60 (Stevens, J., concurring).
In State v. Rains, 735 N.E.2d 1 (Ohio App. 1999), the court found such bad faith, where unlike Youngblood, the “normal practice” at laboratories throughout the state was not followed in the destruction of blood samples and calibration samples, where there was a failure to follow state regulations requiring: blood samples to be sealed and refrigerated; the laboratory to have a written protocol manual; the retention of blood samples for a year; the calibration of the machine on a regular schedule; independent analysis of calibration solution; and retention of calibration solution for subsequent verification. In State v. O’Dell, 46 P.3d 1074 (Ariz.App. 2002), the court ruled bad faith was not shown where the police in Pima County failed to connect the modem of the Intoxilyzer 5000 and therefore failed to transfer data to the Alcohol Data Acquisition Management System (ADAMS) before the data was routinely purged from the Intoxilyzer. This finding was despite the practice followed in many other jurisdictions of transferring and storing the data. Since “bad faith” was defined by reference to whether the evidence was exculpatory and the exculpatory value was not established at the time the evidence was destroyed, the court found no due process violation.

Some cases have held the government is required to preserve evidence, even where, as in Youngblood, the defendant cannot show bad faith of government officials or that the exculpatory value of the evidence was apparent when the government destroyed it. See, e.g., Ex Parte Gingo, 605 So.2d 1237 (Ala. 1992) (“‘there may well be cases in which the defendant is unable to prove that the State acted in bad faith but in which the loss or destruction of evidence is nonetheless so critical to the defense as to make a criminal trial fundamentally unfair’ Youngblood, 488 U.S. at 61, 109 S.Ct. at 339 (Stevens, J., concurring in the result). We think that this is such a case.”); Thorne v. Department of Public Safety, 774 P.2d 1326 (Alaska 1989) (Alaska’s due process clause does not require a bad faith showing — remedy for destruction of videotape showing standardized field sobriety tests is for hearing officer to presume tape was favorable to the defendant); State v. Delisle, 648 A.2d 632 (Vt. 1994) (Vermont state constitution requires balancing of “(1) the degree of negligence or bad faith on the part of the government; (2) the importance of the evidence lost; and (3) other evidence of guilt adduced at trial”); State v. Burden, 17 P.3d 1211 (Wash.App. 2001) (state’s failure to preserve materially exculpatory evidence violated due process rights of defendant, who could not obtain comparable evidence); State v. Benton, 737 N.E.2d 1046 (Ohio App. 2000) (failure to preserve after a request for discovery — videotapes of SFSTs evidence which could not be obtained by comparable means — conviction vacated; burden on state to show was not exculpatory); State v. Morales, 657 A.2d 585, 594 n.20 (Conn. 1995) (rejecting bad faith requirement to make out due process violation under Connecticut state constitution).

In State v. Ware, 881 P.2d 679 (1994), the New Mexico Supreme Court compared and contrasted the suppression, failure to preserve and failure to gather evidence material to the defense. The court noted that in some circumstances, the failure to gather evidence may be equivalent to the destruction of evidence. If the court finds the evidence is material to the defense, as defined in Bagley, then the court looks to the level of culpability of the police (good faith, bad faith, simple or gross negligence) in failing to gather the evidence to determine the appropriate sanction (no sanction, negative inference, suppression of evidence). See also, Daniels v. State, 956 P.2d 111 (Nev. 1998) (following Ware); Lolly v. State, 611 A.2d 956 (Del. 1992) (defendant entitled to instruction where police negligently fail to collect potentially exculpatory evidence); State v. Werkheiser, 474 A.2d 808 (Md. 1984) (failure to obtain blood sample where required by statute — defendant allowed to argue evidence would have been favorable to the defendant).


Effectively challenge
There are numerous legal theories that may be used to support challenges to scientific evidence. Each state has its own complex system of rules for determining whether scientific evidence will be admitted in evidence. All states share the same federal constitutional requirements, and many of the evidentiary, statutory and regulatory rules have a common source or purpose, making sure that the scientific evidence that is considered by the fact finder is reliable and relevant. With all of the differences, the states have a great deal in common. By researching the law of other jurisdictions, it is possible to find cases and theories that support arguments not yet tried in home jurisdictions and to effectively challenge scientific evidence.

Notes
1. The statute held unconstitutional in Barud was subsequently amended to provide that a breath test within three hours of arrest was prima facie evidence of the defendant’s BAC at the time of arrest. The new statute withstood constitutional attack in Commonwealth v. Murray, 749 A.2d 513 (Pa.Super. 2000), because the presumption that the defendant’s breath test reflected the level at the time of driving was rebuttable.
2. Although the Alaska legislature has since made clear its intention to penalize the test result and therefore not have the fact-finder consider the margin of error, see, Bushnell v. State, 5 P.3d 889 (Alaska App. 2000), the case remains persuasive in many other jurisdictions.


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