July 1, 2014 – Jessica Weissinger was accused of causing great bodily harm by intoxicated use of a motor vehicle. She had consented to a blood test. But when she asked for the blood sample to be retested, she learned that it had been destroyed.
Recently, a 2-1 majority of the District II Wisconsin Court of Appeals found no due process violation related to the destruction of the blood sample, affirming Weissinger’s conviction. One judge dissented, saying the decision was “fundamentally unfair.” Another judge concurred, but suggested that a new policy or standard in Wisconsin may be more fair in determining a defendant's guilt or innocence based on blood samples.
In 2009, Weissinger struck a motorcycle while driving. The motorcyclist was seriously injured. Police did not suspect her of intoxication, but asked if she would consent to a blood test. She agreed, and officers took her to the hospital for a blood draw.
The Wisconsin State Laboratory tested the blood a week later. No alcohol was present. However, the lab performed other testing for prescription and other drugs in subsequent months. The blood revealed a detectable amount of THC, a component of marijuana.
The blood sample was destroyed about eight months after the initial blood draw, before Weissinger was charged for causing injury while driving under the influence.
Weissinger says the test results were not provided to her before the blood sample was destroyed. However, the lab’s policy was to discard samples after six months.
Weissinger moved to retest the blood. When she learned that the sample was destroyed, she moved to dismiss the case on the ground that it could not be retested. Based on the blood test results detecting THC, a jury convicted her on the charges.
In State v. Weissinger, 2013AP218-CR (June 25, 2013), a three-judge panel considered whether Weissinger’s due process rights were violated. A 2-1 majority said they weren’t.
The majority noted that police and the laboratory did not fail to preserve apparently exculpatory evidence or act in bad faith when destroying the blood sample.
“Weissinger has not shown that the blood sample was apparently exculpatory at the time it was destroyed,” wrote Judge Lisa Neubauer. “Indeed, the sample was inculpatory. The sample had tested positive twice for THC. …”
The court also rejected Weissinger’s claim that the lab should not have destroyed the blood sample before she was charged, noting the state supreme court in 1984 ruled that due process rights are not violated merely because the sample cannot be retested.
Specifically, the majority rejected the claim that Weissinger had a right to retest the blood under Wis. Stat. section 971.23(5), which states that the court “may order the production of any item of physical evidence which is intended to be introduced at the trial for scientific analysis under such terms and conditions as the court prescribes.”
“While § 971.23(5) gives a defendant the right to inspect reports of the results of blood tests, it does not provide for inspection or testing if the blood itself is not going to be introduced into evidence,” Judge Neubauer explained.
In addition, the court ruled that the blood test results “were admissible under [§885.235] whether or not Weissinger had an opportunity to conduct her own testing.
The majority noted that “chemical evidence of a detectable amount of a controlled substance in a person’s blood is prima facie evidence in an action in which it is material to prove a detectable amount of a controlled substance in the defendant’s blood.”
Finally, the majority ruled that Weissinger had a right to cross-examine the lab workers on the accuracy and credibility of the testing procedures, and Weissinger presented no evidence to suggest the testing done was unreliable.
Concurrence and Dissent
Judge Paul Reilly wrote a dissenting opinion, concluding that it was “fundamentally unfair” to let the government destroy the blood sample before providing Weissinger with notice or a meaningful opportunity for the defendant to inspect the blood.
“I respectfully dissent – the government may not take the liberty of one of its citizens without allowing that citizen a meaningful opportunity to examine the evidence offered by the state,” Judge Reilly wrote.
Chief Appeals Court Judge Richard Brown wrote a concurring opinion. Brown explained that Wisconsin follows federal precedent in these due process cases, and the controlling case of Arizona v. Youngblood, 488 U.S. 51 (1988) does not say that a person must be offered the chance to independently test blood samples.
However, Brown stated: “I must say that I do not like Youngblood.” Brown noted two avenues “for resolving destroyed blood sample issues in a matter that would be fair.”
Judge Brown said the state supreme court could announce a new standard under the state constitution, or the legislature could pass a law prohibiting the destruction of blood samples before the defendant is charged, and for a time period after charges are filed.
