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Esque v. State8/25/1999
ind no error.
Esque next contends that the serum test result should have been suppressed because the state troopers have no policy or training concerning the correlation of serum blood test results to whole blood results. Esque argues that a faulty conversion could result in innocent people being charged or convicted with DWI. Esque has not convinced us that the state troopers' policies or lack of training concerning the conversion renders evidence offered at trial inadmissible, particularly when, as in this case, the fact finder is fully informed of the variance. In this case, the defendant, the prosecution, and the fact finder were aware of the variance. Considering the facts in this case, Esque was not improperly charged, and as stated above, even giving her the benefit of a 35 percent conversion, her conviction under either DWI subsection is supported by the evidence.
Esque also contends that the test should not have been admissible to prosecute her under AS 28.35.030(a)(2) because she had no notice or warning that it would be used against her. This is essentially a due process claim, and for the reasons given below, we find it is meritless.
Esque presses a number of related claims that her due process rights were violated. Generally, she asserts that due process requires the state to preserve her blood sample, or to give her notice that she was under investigation for DWI so she could have her blood retested. She also asserts, relying on AS 28.35.031(a), that due process requires that blood tests be administered at the direction of law enforcement to be admissible in DWI trials.
Judge Lombardi found that the state did not have a duty to preserve the evidence because the hospital, not the police, gathered the evidence. Furthermore, this court, in Bradley v. State and St. John v. State, has previously held that admitting the results from medical blood tests at trial as evidence of intoxication does not violate due process.
In Bradley, we rejected the argument that the state has a positive duty to preserve a blood sample it neither requested nor possessed. Moreover, it is well settled that while the state's obligation to preserve and disclose evidence attaches once the state has first gathered and taken possession of that evidence, this duty does not attach when the state has not collected or taken possession of evidence. Esque, like Bradley, whose blood was drawn and tested by the hospital, had access to the evidence. And as in Bradley, the record shows that nothing prevented either Esque or the state from asking the hospital to preserve the blood sample. The record supports Judge Lombardi's finding that the state had no obligation to preserve the blood sample.
Moreover, Judge Lombardi found that even had the state preserved the blood, the results of the proceeding would not have been different.
Specifically, Judge Lombardi found:
"The test is, in a case such as this where the State is under no specific duty to preserve [evidence], had the State preserved the blood, would the result of the proceeding be different. If Esque had the opportunity to test the blood and assuming that there was a 35% error margin, there would still be evidence of alcohol content over the legal limit. Therefore, even if the defendant had the ability to retest the blood there is no evidence that the blood result would be exculpatory or that the medical test, although different from the legal test is "inaccurate".
"There is adequate evidence that a jury could find Esque was "under the influence". There is not adequate evidence at this juncture that preserving blood for testing would probably affect the outcome of th
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