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State v. Vasquez1/21/2003
ond, he argued that the State failed to identify the contents of the control used to verify that the instrument was working properly.
As to the defendant's first argument, the individual who tested his blood stated that she followed all of the policies and procedures of title 177, but the Hiemstra court found that statement to be a conclusion and to be insufficient to show compliance with the requirements of title 177. The Hiemstra court noted that the State failed to question the individual who tested the defendant's blood about refrigeration of the reagent pack. The court concluded that the State failed to prove title 177 was complied with and that the trial court erred in admitting the blood test results.
As to the defendant's second argument, the Hiemstra court relied on State v. Gerber, 206 Neb. 75, 291 N.W.2d 403 (1980), overruled on other grounds, State v. Obermier, 241 Neb. 802, 291 N.W.2d 403 (1980) (requirements for admissibility of breath alcohol test), and found that the trial court erred in admitting the test results because there was no testimony or evidence identifying the contents of the control, showing how it was received, detailing under what conditions it was kept and preserved, and identifying what spot checks were made to determine its validity.
In admitting the blood test results in the present case, the trial court relied on State v. Green, 223 Neb. 338, 389 N.W.2d 557 (1986). The defendant in Green asserted that there was insufficient foundation to receive his blood test results. The defendant argued that the testimony of the chemist who tested his blood was without foundation because the chemist did not know where the formula used in the test originated and had no independent knowledge that the substance in the blood storage vials used in the test was an anticoagulant or that the substance used in a syringe was potassium carbonate. The chemist testified that the formula was not set forth in the Nebraska Department of Health rules but was taught to her by her supervisor. The chemist also stated that the blood storage vials contained an anticoagulant. The Nebraska Supreme Court found that there was no real foundation for this statement, but noted the chemist's visual observation that the blood in the vials had not coagulated. The chemist testified further that the substance she used in the syringe was potassium carbonate and that this substance came from a jar in her laboratory that was labeled as such. The Green court stated that it was "not inclined to require an examining chemist doing blood alcohol testing to go behind the label on a container of a substance used regularly during the course of such employee 's duties, absent circumstances which would indicate the necessity for such inquiry." 223 Neb. at 341, 389 N.W.2d at 559-60. The court then concluded that any deficiencies in the techniques used to test the blood alcohol level in DUI cases generally are of no foundational consequence, but affect only the weight and credibility of the testimony. Green, supra. In affirming the trial court's decision to admit the blood test, the Green court also noted that the chemist had testified that she possessed a Class A permit to do blood alcohol testing and that she followed title 177 in doing blood alcohol testing.
In the present case, Milligan testified that he was certified by the hospital as a medical technologist authorized to draw blood. He testified that the blood that is drawn from an individual for legal blood alcohol testing is drawn into test tubes containing sodium fluoride, an anticoagulant. Milligan indicated that before using each test tube, he observes the tube to check its expiration date and to see whether it appears normal. If anything
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