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State v. Smoak

Court of Common Pleas of Delaware, New Castle

September 20, 2018

STATE OF DELAWARE,
v.
BRYAN N. SMOAK, Defendant

          Submitted: May 2, 2018

          Matthew Hicks, Esquire Deputy Attorney General Attorney for the State of Delaware.

          Richard B. Ferrara, Esquire Ferrara & Haley Attorney for Defendant.

          MEMORANDUM OPINION AND ORDER ON DEFENDANT'S MOTION TO REQUIRE THE PRESENCE OF THE PHLEBOTOMIST AT TRIAL

          Carl C. Danberg Judge.

         The defendant, Bryan N. Smoak (hereinafter the "Defendant"), brings this Motion for the identification of the phlebotomist. Defendant was arrested for Driving Under the Influence ("DUI") for which he now stands trial. Defendant is seeking the identity of the State's phlebotomist so that he/she may be subpoenaed to testify at trial about the procedure utilized in drawing Defendant's blood. The State opposes Defendant's request alleging testimony about the procedure employed by the phlebotomist can be credibly obtained by an observing police officer present at the time the Defendant's blood was drawn as well as the analyst responsible for testing the blood sample.[1] Additionally, the State believes Defendant's request to be premature as no allegation has been made that the procedure conducted in this case was improper. The State also contends that requiring a phlebotomist to testify about the blood draw procedure is contrary to legislative intent and places an undue burden on state resources.

         On November 13, 2017, a status hearing was held and the issue of whether the State should provide the identity of the phlebotomist to Defendant was presented to the Court. At the conclusion of the hearing, the Court ordered supplemental briefing on the issue. This is the Final Decision and Order of the Court on Defendant's Request for the Presence of the Phlebotomist at Trial.

         FACTS AND PROCEDURAL HISTORY

         On May 28, 2017, Defendant was arrested for DUI, in violation of 21 Del. C. § 1477(a), Inattentive Driving, in violation of 21 Del. C. § 4176(b), and Failure to Have Insurance Identification, in violation of 21 Del. C. § 2118(p)(1). On September 15, 2017, Defendant sent a request to the State seeking the identity of the phlebotomist so that he/she may be subpoenaed for trial. On September 22, 2017, the State denied Defendant's request as they did not believe the phlebotomist to be a necessary witness.

         PARTIES' CONTENTIONS

         Defendant argues that a phlebotomist is a necessary foundational witness to establish whether proper procedures were followed during Defendant's blood draw. The Defendant makes clear that he is requesting the phlebotomist's presence as a foundational witness and not for the purpose of establishing chain of custody. Defendant concedes that both statute and case law establish that a phlebotomist is not a necessary witness to establish chain of custody. Defendant contends that the State must prove that the phlebotomist complied with the test manufacturer's requirements so that a proper evidentiary foundation can be established as to the blood draw procedure, otherwise the test is inadmissible. Defendant does not agree with the State's contention that a police officer is a sufficient substitute for the phlebotomist's testimony, as the police officer lacks the professional knowledge and training required for phlebotomists to understand the proper blood draw protocol.

         The State argues that testimony of a police officer who is an eyewitness to the blood draw performed by the phlebotomist will suffice to establish whether proper procedures were utilized. The State argues that only common knowledge and experience are necessary to testify as to one's observations of the taking of blood, thus refuting Defendant's position that a phlebotomist is required. The State relies on legislative history and case law surrounding Sections 2746 and 4177(h)(4) of Title 21 of the Delaware Code in making their argument. The aforementioned Sections deal directly with chain of custody, but the State argues that the same principles derived from these Sections should also be applied to foundational questions. Lastly, the State argues several points under Delaware Rules of Evidence 403. First, the State argues that the phlebotomist's testimony would be non-testimonial for the purposes of the confrontation clause and would not be required for the State's case-in-chief. Due to this, the State claims that the request for the phlebotomist would occur after the State introduced the result of the test at trial and would be a waste of time. Second, the State argues that Defendant has failed to claim that the blood draw was conducted improperly, thus rendering the request premature and causing undue burden on the on the State. Third, the State argues that requiring the phlebotomist to testify would create an undue burden on state resources and go against the legislative intent of Section 4177(h)(4).

         DISCUSSION

         Delaware courts have previously addressed the specific question of whether a phlebotomist is required to testify about the blood draw procedures. "[I]n order for the result of the [blood draw] to be admitted, the State must lay an adequate evidentiary foundation."[2] In doing so, the State must show that the phlebotomist complied with the test manufacturer's protocol.[3] Delaware Superior Court has found that this can only be done by way of the phlebotomist's testimony.[4]

         The State's argument that the statutes and case law regarding chain of custody should be likewise applied to foundational questions is persuasive; however, clarity specifically pertaining to this issue has already been provided by our courts. The State relies on Sections 2716 and 4177(h)(4) of Title 21 of the Delaware code.

         Section 2716 of Title 21 of the Delaware Code states:

[I]t shall not be necessary to present the testimony of, or certification by, a person who has withdrawn blood from a person pursuant to this section in order to establish chain ...

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