Tuesday, October 1, 2019
Page 3
Court of Appeal:
Evidence Lacking That Sending Blood Sample Through Mail Boosted Reading of Alcohol
By a MetNews Staff Writer
The Court of Appeal has rejected the contention of a man, found by the Department of Motor Vehicles to be subject to a suspension of his driver’s license based on drunk driving, that it improperly relied on a testing of his blood sample, sent to a lab for analysis of the blood alcohol content by regular mail, taking seven days to arrive, and subject to temperature variations that could skew the results.
Motorist Sean Greathouse appealed from the Marin Superior Court’s denial of his writ petition challenging an administrative law judge’s decision upholding of the DMV’s determination. At the hearing before the ALJ, Greathouse presented testimony of a toxicologist, Okorie Okorocha, that transmittal of the sample by regular mail would likely have resulted in fermentation of the sample likely occurred, hiking the reading of blood alcohol contend.
Acting Presiding Justice Jon B. Streeter of the First District’s Div. Four said there is a statutory presumption that a test by a California Department of Justice (“DOJ”) forensic laboratory was performed according to requirements and a further statutory presumption that an official duty has been lawfully performed. Affirmative evidence is needed to rebut the presumptions, he noted.
The jurist wrote:
“Even though Mr. Okorocha may have preferred that samples be refrigerated, he could not point to any evidence that Greathouse’s blood sample was compromised or tainted. Further, other states’ courts have endorsed the blood sample mail-in procedures used in this case….While this out-of-state authority is necessarily based on the regulatory regimes governing the handling of blood test samples in those states—and we take no view of whether that is or ought to be the law in California—the fact that there is authority outside of California expressly approving the mail-in practice that DMV defends here confirms that, on this record, the trial court was not outside the bounds of reason in declining to credit Mr. Okorocha’s testimony on acceptability of DOJ’s mail-in procedures.”
The case is Greathouse v. California Dept. of Motor Vehicles, A154947.
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