April 27, 2015 – The due process rights of two defendants accused of driving with drugs in their systems were not violated even though blood samples were destroyed before they could independently test them, the Wisconsin Supreme Court recently ruled.
Michael Luedtke and Jessica Weissinger were both separately convicted for operating a motor vehicle with a detectable amounts of controlled substances in their blood. Luedtke’s sample showed cocaine; Weissinger’s blood revealed traces of THC.
Both had submitted to blood draws after car accidents, and the blood samples were sent to the Wisconsin State Laboratory of Hygiene, an independent testing agency. The lab generated toxicology reports that indicated the blood samples would be retained no longer than six months unless otherwise requested by an agency or a subject.
In both cases, the laboratory tested the samples twice, first for alcohol, then for drugs months later. In both cases, the lab discarded samples later than six months from the alcohol test report, but within three months of generating the drug test report.
Luedtke argued that it was unconstitutional to destroy the sample before he received notice of the results. Weissinger argued that it was unconstitutional to destroy the sample before she had notice of the results, and before she was charged.
Both defendants said they never received the lab reports that were sent, and they were deprived of an opportunity to challenge the results through independent testing.
In both cases, the circuit court denied the defendant’s motions, concluding that no due process rights were violated. The appeals courts agreed. The Wisconsin Supreme Court consolidated the cases and recently affirmed, finding no constitutional violations.
In State v. Luedtke and State v. Weissinger, 2015 WI 42 (April 24, 2015), the state supreme court also held that the Wis. Stat section 346.63(1)(am), which prohibits people from driving with a detectable amount of restricted controlled substances in their blood, is a strict liability offense that does not require a showing of “scienter.”
No Due Process Violation
The supreme court majority, in an opinion by Justice Michael Gableman, explained that the Wisconsin Constitution does not provide greater due process protections than afforded to persons under the Fifth and Fourteenth Amendments of the U.S. Constitution.
Thus, the majority followed the U.S. Supreme Court’s decision in Arizona v. Youngblood, 488 U.S. 51 (1988), to conclude that the lab did not violate due process rights by destroying the blood samples before the defendants could test them.
Under Youngblood, the supreme court majority explained, the defendant’s had to show that the state lab failed to preserve apparently exculpatory evidence or “acted in bad faith by failing to preserve evidence that was potentially exculpatory.”
“Luedtke and Weissinger’s blood samples were neither apparently exculpatory nor destroyed in bad faith; therefore, the State did not violate their due process rights,” Justice Gableman wrote. “The United States Supreme Court, this court, and the court of appeals have all expressly rejected the argument that due process requires the preservation of blood samples.”
The majority noted that the blood samples contained evidence of drugs. Thus, the blood samples could not be viewed as “apparently exculpatory.” In addition, the court noted that the lab destroyed the samples under routine policy, with no evidence of bad faith.
“We have held that defendants unable to independently test their blood samples have received fair trials under similar circumstances,” Justice Gableman noted.
Statute is Constitutional
Luedtke argued that Wis. Stat. section 346.63(1)(am) is unconstitutional because it does not require the state to prove “scienter,” apparently arguing the he could not be convicted unless the state proved he knowingly ingested the restricted substance.
However, the court noted that the statute meets a six-factor test in determining whether a statute imposes strict liability, and not all strict liability statutes violate due process.
“In the present case, rational basis scrutiny is satisfied because the statute is rationally related to achieving public safety,” Justice Gableman wrote.
“Though it may be more difficult to deter people from driving after unknowingly ingesting a restricted controlled substance, such drivers are at least as dangerous as those who knowingly ingest a restricted controlled substance,” wrote Justice Gableman.
Concurrence
Chief Justice Shirley Abrahamson wrote a concurring opinion. She did not dissent from the majority’s ultimate conclusion but said courts should treat these cases differently.
“I would require that hereafter a circuit court is to instruct the fact finder in cases like the instance cases that the fact finder may, but need not, infer that the destroyed evidence would have been favorable to the defense,” she wrote. “If hereafter such a jury instruction is not given, the cause should be remanded for a new trial.”
She noted that Youngblood is a “troublesome” case and said Wisconsin citizens should have greater due process protections than those Youngblood affords. She noted the broader question of a defendant’s right to access evidence to be used against them.
“There is an emerging consensus among courts that have considered the issue that the bad faith standard does not go far enough to protect adequately the rights of a person charged with a crime,” the chief justice wrote.
