STATE v. ROWELL, 517 So.2d 799 (La. 1988)

STATE OF LOUISIANA v. JAMES R. ROWELL.

No. 87-KK-0938.Supreme Court of Louisiana.
January 18, 1988.

APPEAL FROM LAFAYETTE CITY COURT, PARISH OF LAFAYETTE, STATE OF LOUISIANA, HONORABLE MICHAEL G. SULLIVAN, J.

Joseph Jordan, Jr., Lafayette, for applicant.

William J. Guste, Jr., Atty. Gen., J. Nathan Stansbury, Dist. Atty., David Hutchins, Asst. Dist. Atty., for respondent.

MARCUS, Justice.

[1] James R. Rowell was charged by bill of information with operating a motor vehicle while under the influence of alcohol, second offense, with a blood alcohol concentration of 0.10% or more, in violation of La.R.S. 14:98. Defendant filed a motion to suppress the results of the blood alcohol analysis performed on the blood sample drawn from him after his arrest. A hearing on the motion was conducted in conjunction with trial on the merits. The trial judge first ruled that the burden was on defendant to prove the inadmissibility of the blood test results under La. Code Crim.P. art. 703. [1] At the conclusion of trial, the trial judge denied the motion to suppress finding that the Department of Public Safety’s regulations on blood alcohol analysis were adequate to insure the accuracy of the test results and found defendant guilty as charged. The court of appeal granted defendant’s application for a writ of review and reversed his conviction and sentence finding that the trial judge erred in placing the burden on defendant to prove the inadmissibility of the results of the blood alcohol analysis. The court further concluded that the state could not meet its burden of proving that the regulations insured the integrity and reliability of blood alcohol analyses because the regulations did not contain provisions for repair, maintenance, inspection, cleaning, certification, and

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chemical accuracy. [2] On the state’s application, we granted certiorari to review the correctness of that decision. [3]

[2] On May 17, 1986, defendant was involved in an automobile accident during which he collided into the rear of a garbage truck. When the police officers arrived at the scene of the accident, defendant was lying in the grass several feet from his automobile and was bleeding from his nose and face. One of the investigating officers noticed a scent of alcohol on defendant’s breath. First aid was administered to defendant and he was taken by ambulance to the hospital. After defendant was advised of his rights, he consented to a blood alcohol analysis. A licensed practical nurse drew two vials of defendant’s blood using a B-D Blood Alcohol Kit Number 4990. She then gave the vials to a police officer who sealed them in the kit. Five days later, a forensic chemist employed by Acadiana Criminalistics Laboratory performed a gas chromatographic analysis on defendant’s blood samples using an internal standard with a direct injection. The analysis showed defendant’s blood alcohol level to be 0.12%, which is above the presumptive level of intoxication. La.R.S. 32:662(A)(1)(c). [4] [3] This court has repeatedly recognized the importance of establishing safeguards to guarantee the accuracy of chemical tests used in criminal prosecutions. In order for the state to avail itself of the statutory presumption of a defendant’s intoxication arising from a chemical analysis of his blood under La.R.S. 32:662, it must show that the state has promulgated detailed procedures which will insure the integrity and reliability of the chemical test, including provisions for repair, maintenance, inspection, cleaning, certification, and chemical accuracy. It must also show that the state has strictly complied with the promulgated procedures. State v. Gregory, 403 So.2d 1225 (La. 1981); State v. Goetz, 374 So.2d 1219 (La. 1979); State v. Graham, 360 So.2d 853
(La. 1978). A motion to suppress is available to question the admissibility of chemical test results that can result in the legal presumption of intoxication and the burden of proving admissibility is on the state. State v. Tanner, 457 So.2d 1172 (La. 1984). These principles were set forth in cases involving breath testing. This is the first case in which we are called upon to review the sufficiency of the regulations on blood analysis. [4] La.R.S. 32:663 authorizes the Department of Public Safety to approve satisfactory techniques or methods to assure the accuracy of breath and blood alcohol analysis. [5] In contrast to the Department’s regulations on breath analysis, those on blood analysis are meager. See 11 La.Reg. 256 (1985). A person seeking a permit to conduct blood analysis must have a Bachelor of Science in chemistry, physics, biology, zoology, medical technology, or a related field and must conduct proficiency testing set up by the state police crime laboratory. Permits are effective for a period of five years. Two methods are approved for blood alcohol analysis: gas chromatography, headspace sampling with internal

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standard and gas chromatography, direct injection with internal standard. The regulations also provide for certain procedures and controls in conjunction with each batch of samples analyzed. 11 La.Reg. 259 (1985). [6]

[5] Gas chromatography is based on the different rates at which components of a mixture pass through a stationary medium. It functions to separate and measure the different components of a mixture. The gas chromatograph consists of a heated column through which a stream of gas is passed at a steady rate. When a mixture is injected into the heated column, it evaporates immediately and its different components are carried through the column by the gas. Because different components of a mixture pass through the column at different rates, they are separated. As each component exits the column, it is detected and measured. In a blood alcohol analysis, the substances which are separated and measured are the ethyl alcohol present in the blood sample drawn from an individual and a known amount of another species of alcohol (the internal standard) which has been added to the blood sample. The first step in the process is to calibrate the gas chromatograph by injecting an alcohol sample with a known concentration. Next, a blank sample containing only the internal standard is injected into the gas chromatograph to insure that it contains no ethyl alcohol. This demonstrates that the individual’s blood sample is not being contaminated by adding the internal standard. A calibration check is then run with known concentrations of alcohol. Finally, the internal standard is added to the blood sample and this mixture is injected into the gas chromatograph. The alcohol in the individual’s blood sample and the internal standard are separated and exit the column individually. A detector attached to the end of the column senses the different substances as

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they exit. This detection is recorded in the form of peaks on a graph. The individual’s blood alcohol concentration is determined by comparing the peak representing the alcohol in his blood to the peak representing the known amount of alcohol (the internal standard).

[6] In the instant case, the chemist who performed the blood analysis had a Bachelor of Science in Forensic Science. He followed the procedure set forth in the regulations. Although the regulations do not specify the type of proficiency testing required to obtain a permit, the chemist testified that he obtained his permit in 1983 by analyzing four blood samples from the state police crime laboratory. He also testified that the gas chromatograph is not routinely inspected or maintained. When the gas chromatograph malfunctions, he repairs it; if unable to do so, he contacts the manufacturer of the machine. In addition, the chemist testified that if no preservative had been placed in the vials of blood, alcohol could be manufactured if the proper enzymes were present. Finally, he testified that the chemicals used to calibrate the gas chromatograph were not spot-checked for standard quality and admitted that if the calibration standard were off an error in the analysis would occur. [7] The regulations concerning the qualifications of a person seeking a permit to conduct blood analysis are insufficient because they do not specify the type of proficiency testing required. Moreover, the regulations do not provide for the repair, maintenance, or inspection of the gas chromatograph. Although the chemist who performed the blood analysis in the instant case testified that he was able to perform some repairs, the regulations do not require a person seeking a permit to have such skills. In view of the chemist’s testimony that alcohol can be manufactured in the blood sample if it is not properly preserved, the regulations do not sufficiently provide for the preservation of the blood sample. Finally, the regulations are not sufficient to insure the accuracy of the chemicals used to calibrate the gas chromatograph. Accordingly, we agree with the court of appeal that the state failed to meet its burden of proving that the regulations insured the integrity and reliability of blood alcohol analyses because they did not contain provisions for repair, maintenance, inspection, cleaning, certification and chemical accuracy. [7] [8] This court has held that the wrongful introduction of a chemical test result, which by law presumes a defendant to be intoxicated, is so prejudicial to the defendant that a resulting conviction cannot stand even if there is other evidence of intoxication. Tanner, 417 So.2d at 1174. Because this decision does not entail a finding that there was an insufficiency of evidence to convict defendant, but only that the admission of the gas chromatography test results was erroneous, it is proper that defendant be retried on the charge of driving while intoxicated, second offense. State v. Morrison, 392 So.2d 1037 (La. 1980). [9] DECREE [10] For the reasons assigned, the judgment of the court of appeal is affirmed and amended to specify that the remand to the district court be for a new trial. [11] WATSON, J., dissents.

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