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[T] State v. Mork3/5/2003
. Gary T. Mork was convicted by jury of operating a vehicle while intoxicated. A major part of the State's evidence was a blood test showing Mork's blood alcohol level to have been .175%. Mork's defense was that the blood tested was not his blood and the chain of evidence was lacking to prove otherwise. He therefore objected that the test results were inadmissible, an objection which the trial court overruled. Towards the end of the trial, during rebuttal of the lab expert, the expert allowed as how a second test of Mork's blood had been conducted, this test culminating in a .164% reading. On appeal, Mork claims that he did not know about the second test-thus violating discovery rules, that it never should have been mentioned to the jury and that it prejudiced his case because, had he known of the second test, he would have provided a different defense. Because Mork has not convinced us that he was prejudiced, we affirm.
. As we said, a major piece of the State's case was the .175% test reading. We deem this to be a major part of the State's case because not only did it show that he was intoxicated, it gave strong rebuttal to Mork's testimony that he only had two beers. And as we said, the major theme of Mork's defense was that the blood test was not of his blood. To support his theory, he made a pretrial request to the district attorney to have the remaining sample of his blood sent to a private laboratory so that the DNA of the blood could be tested. The request resulted in an agreement to have the State lab send the blood sample to the private lab, which was done. The record does not indicate what the results were from the private lab. What we do know is that Mork's theory that the blood was not his was based on his challenge to the chain of custody. It was Mork's theory that the blood sample was missing for a period of time and, therefore, the chain of custody was in doubt. If the chain of custody was in doubt, then there was a reasonable doubt about whether the blood tested was his blood.
. In support of his theory, Mork cross-examined the lab expert about the chain of custody. Curiously, Mork also cross-examined the expert on its procedure when a defendant wants a second sample of the blood sent to a private lab. On rebuttal, the State went into the procedure in more detail. The State asked, "When you send out a sample, do you test that sample prior to shipping it out again?" The lab expert replied that the lab did test the second sample before sending it out so that "we have more information." The State then showed the lab expert a document and asked the expert to identify it. The expert responded that it was a report showing a reading on the second test of .164%.
. Mork immediately objected. He argued that there was a discovery demand filed by him, that this second report was never revealed to him, that the State had a continuing duty to divulge any lab testing and reports, that he was surprised and asked for dismissal. After the State's response, the court said it was not happy that the document appeared in the manner it did and commented, "I don't see any need for it in any event." The court gave Mork two alternatives. It would, if requested, instruct the jury to ignore any testimony with regards to retesting by the state lab or Mork could examine the witness regarding the report. Mork was obviously not happy with the alternatives and argued that the discovery violation had prejudiced him. He asked for a mistrial so that he could consult an expert on the significance of one sample being .175% and another sample being .164%. The trial court denied the motion and the trial proceeded with Mork examining the lab expert about the second test. The jury came back with a guilt
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