DUI Appeal - Washington OKs Use of Expired Blood Tubes

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In State of Washington v. Johnson, Not Reported in P.3d, 2011 WL 1485635 (Wash.App. Div. 1) the court summary reads as follows:



Michael Johnson appeals his judgment and sentence for felony driving under the influence of intoxicants (DUI). Because the State presented prima facie evidence that the blood analysis performed was free from adulteration, the court properly denied Johnson's motion to suppress that evidence. In a statement of additional grounds, Johnson claims he was denied his right to a fair trial because two witnesses involved in processing the evidence were unavailable to testify at trial. This argument does not warrant reversal. Washington State Patrol Trooper Gerald Ames responded to a one car collision on Interstate 5. There he found a Jeep Wrangler tangled in the cable guard rail on the side of the interstate. Johnson was standing in front of the Jeep and informed Trooper Ames that he was not injured. Johnson claimed he was run off of the road by another vehicle. Trooper Ames performed a records check and learned that Johnson's driving status was revoked so he placed Johnson under arrest. Although Trooper Ames did not smell intoxicants, he noticed that Johnson was “lethargic, disoriented, walked with a stagger, and was unsteady on his feet.” After additional observation of impairment, Trooper Ames notified Johnson that he was under arrest for DUI. Trooper Ames then transported Johnson to St. Joseph's Hospital for a blood draw. Phlebotomist Alicia Kester performed the blood draw. Trooper Ames supplied her with two tubes in which to collect the blood samples. Kester informed Trooper Ames that the tubes were past their expiration date by almost four months, but he instructed her to use them anyway. Dr. Naziha Nuwayhid, a forensic scientist at the state toxicology laboratory, tested both blood samples nearly two years after Johnson's arrest. Only one of the results was admissible at trial and that result showed normal therapeutic levels of Clonazepam and higher than normal therapeutic levels of Oxycodone in Johnson's blood. The State charged Johnson with felony DUI and another crime unrelated to this appeal. Before trial, Johnson moved to suppress the blood analysis evidence, arguing that the blood sample was improperly collected. After an evidentiary hearing, the trial court denied Johnson's motion and entered written findings of fact and conclusions of law. The blood analysis evidence was admitted at trial, without objection. A jury found Johnson guilty of felony DUI and the court imposed a standard range sentence.

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