State Of Washington v. Juan Pedro Ortiz-vivar ( 2014 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, ) No. 70043-0-1
)
Respondent, )
)
v- )
)
JUAN PEDRO ORTIZ-VIVAR, ) UNPUBLISHED OPINION
)
Appellant. ) FILED: April 28,2014
)
Verellen, A.C.J. — In order to introduce blood alcohol test results, the State
must produce prima facie evidence that the vials into which the blood sample were
placed contained the enzyme poison and anticoagulant as required by state regulations.
Here, the toxicologist testified that the tests were performed in compliance with state
regulations and that the condition of the blood sample and the test results themselves
revealed that there were sufficient anticoagulants and enzyme poison in the vials.
Juan Ortiz-Vivar contends that the admission of the manufacturer's certificate
stating that a particular lot number of gray-topped blood vials contained specified
chemicals violated the confrontation clause. But Ortiz-Vivar does not establish that this
business record is testimonial in nature. The trial court did not violate the confrontation
clause or abuse its discretion in admitting the certificate or the blood test results. We
affirm.
No. 70043-0-1/2
FACTS
On September 2, 2011, an employee of Ace Hardware noticed a customer, Juan
Ortiz-Vivar, slurring his words and stumbling around in the store. The employee
observed Ortiz-Vivar leave the store and get into his car. She noticed that Ortiz-Vivar
was having difficulty getting into and starting the car, as well as pulling out of the
parking space. Concerned about his behavior, she called the police. Officer Aaron
Cohen was the first to arrive. He noticed a strong order of alcohol emanating from the
car. Officer Cohen observed a white chunky substance falling from Ortiz-Vivar's mouth.
Ortiz-Vivar was slurring his words as he got out of his car. Officer Cohen caught Ortiz-
Vivar to prevent him from falling to the ground. Another officer, Andrew Litke, collected
a white crystal substance and turned it over to Officer Cohen. Officer Walter Martinez
assisted with Spanish translation. Martinez testified that Ortiz-Vivar claimed he had four
shots of tequila that afternoon. Officer Martinez observed that Ortiz-Vivar's coordination
was poor, that he had a hard time standing, that his eyes were red and watery, and that
his breath smelled of intoxicants. Based on Martinez's experience and training, he
concluded that Ortiz-Vivar was extremely impaired. Because of his condition, Ortiz-
Vivar was transported to the hospital.
Ortiz-Vivar agreed to a blood test. From his patrol car, Officer Martinez retrieved
gray-topped vials provided to the police by the Washington State Patrol lab. He testified
that those gray-topped vials contained a white powder but that he did not know the
chemical content of that powder. Martinez observed the phlebotomist draw Ortiz-Vivar's
blood. Officer Cohen also observed the blood draw and took the vials into custody
afterwards.
No. 70043-0-1/3
Chris Johnston with the Washington State toxicology lab in Seattle performed the
blood analysis and wrote the toxicology report on Ortiz-Vivar's blood. Johnston testified
that it appeared the blood vials contained an anticoagulant enzyme. Johnston further
testified that there was an enzyme preservative in all the gray-topped tubes used for
these blood draws and identified the vials as the specific vials provided to various police
agencies for blood draws in driving under the influence (DUI) cases. Over a relevance
objection, the trial court admitted as a business record the manufacturer's certificate of
delivery of the lot of blood vials that included the vials used to test Ortiz-Vivar's blood.
Over defense objections to a lack of foundation, the court admitted the blood test results
which showed that Ortiz-Vivar had a blood alcohol level of 0.1710.
A jury found Ortiz-Vivar guilty of DUI. The court imposed a sentence within the
standard range. He appeals.
ANALYSIS
Ortiz-Vivar argues that his conviction was based in part on blood test results that
were not demonstrably reliable. Specifically, he contends that the prosecution failed to
establish that his blood sample was properly preserved with an anticoagulant and an
enzyme poison.
We review a trial court's ruling on the admissibility of a blood alcohol test result
for an abuse of discretion.1
Before blood alcohol test results can be admitted into evidence, the State must
present prima facie evidence that the test chemicals and blood sample are free from
1 State v. Brown. 145 Wn. App 62, 69, 184 P.3d 1284 (2008).
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any adulteration that could conceivably introduce error into the test results.2
RCW 46.61.506(3) requires blood tests to be performed in compliance with Washington
Administrative Code (WAC) regulations promulgated by the state toxicologist.
WAC 448-14-020(3)(b) provides:
Blood samples for alcohol analysis must be preserved with an
anticoagulant and an enzyme poison sufficient in amount to prevent
clotting and stabilize the alcohol concentration. Suitable preservatives
and anticoagulants include the combination of sodium fluoride and
potassium oxalate.
RCW 46.61.506(4)(b) provides that prima facie evidence is evidence that supports a
logical and reasonable inference of the facts sought to be proven.
In a challenge to the admission of blood alcohol test results, the trial court
assumes the truth of the State's evidence and draws all reasonable inferences from it in
the light most favorable to the State.3 Once the State shows that it has complied with
the WAC, the jury determines the weight to be given to the blood test result.4
Here, the trial court correctly determined that the State met its prima facie burden
of proof. In State v. Brown, the court held that the State presented sufficient evidence
that the gray-topped vials contained the necessary amounts of required chemicals.5
There, the toxicologist stated that he knew that the blood sample vials included an
appropriate combination of sodium fluoride and potassium oxalate as noted in the
2 State v. Wilbur-Bobb. 134 Wn. App 624, 630, 141 P.3d 665 (2006).
3RCW46.61.506(4)(b).
4RCW46.61.506(4)(c).
5 145 Wn. App 62, 76, 184 P.3d 1284 (2008).
No. 70043-0-1/5
manufacturer's certificate because the blood would be clotted and no alcohol would
have been detected in the sample if those chemicals were not present in the vials.6
In State v. Wilbur-Bobb. a photograph of the label on the vials containing the
blood samples showed that the vials contained sodium fluoride.7 The photo, together
with the toxicologist's testimony that sodium fluoride was the enzyme poison required by
the regulation, was sufficient.8
In State v. Steinbrunn. testimony that the blood samples were free of adulteration
and tested in accordance with the WAC was sufficient to establish a prima facie case
where the nurse testified the hospital supplied the vial, the toxicologist testified that the
vial manufacturers always put anticoagulants into the type of vials it sent to the
hospitals.9
In State v. Barefield. this court held that a toxicologist's testimony that the vial
manufacturer always put anticoagulants in the vials and that the blood sample was
unadulterated when he ran the tests was sufficient prima facie evidence of
compliance.10
Here, the toxicologist testified that the tests would not have been successful had
the appropriate chemicals not been in the vials and that the vials were properly sealed.
Further, the toxicologist testified that the gray-topped vials were certified by the
6 Id, at 71.
7 134 Wash. App. 627, 630-32, 141 P.3d 665 (2006).
8 jd, at 631-32.
9 54 Wash. App. 506, 513, 774 P.2d 55 (1989).
10 47 Wash. App. 444, 458, 735 P.2d 1339 (1987).
No. 70043-0-1/6
manufacturer as having the appropriate chemical composition. The State provided an
adequate foundation for the admission of the blood test results.
Ortiz-Vivar next contends the admission of the manufacturer's certificate violated
his right of confrontation. The Sixth Amendment confrontation clause confers upon the
accused the right "to be confronted with the witnesses against him."11 Testimony is
usually a solemn declaration or affirmation made for the purpose of establishing or
proving a particular fact.12 Business records that have been "created for the
administration of an entity's affairs and not for the purpose of establishing or proving
some fact at trial" typically are not testimonial and therefore not subject to the
confrontation clause.13 We review a trial court's decision to admit or exclude business
records for a manifest abuse of discretion.14
In a footnote, Ortiz-Vivar contends he can raise his confrontation issue for the
first time on appeal, but he does not address the authority that failure to raise
confrontation issues at or before trial bars any consideration on appeal. "A clear line of
decisions—Melendez-Diaz, Bullcoming. Jasper, and Haves—requires that a defendant
raise a Sixth Amendment confrontation clause claim at or before trial or lose the benefit
11 Crawford v. Washington, 541 U.S. 36, 42, 124 S. Ct. 1354, 158 L Ed. 2d 177
(2004).
12 id at 51.
13 Melendez-Diaz v. Massachusetts. 557 U.S. 305, 324, 129 S. Ct. 2527, 174 L.
Ed. 2d 314 (2009).
14 State v. Zeigler. 114 Wash. 2d 533, 538, 789 P.2d 79 (1990).
No. 70043-0-1/7
of the right."15 The same rule applies to the article I, section 22 confrontation clause
right ofthe Washington Constitution.16 Neither does he offer any manifest error theory.
Even if he had properly preserved the issue, he does not establish that the
certificate was testimonial.
The manufacturer's certificate simply certified that the products ordered by the
lab were "in compliance with the current FDA Quality System Requirements (QSR) as
stipulated in 21 CFT part 820."17 The product number was listed, along with a
description and a lot number for the vials that were manufactured to the state
toxicologist specifications for a particular draw volume and the presence of potassium
oxalate and sodium fluoride. The toxicologist testified that the certificate was kept as a
business record, showing that the gray-topped vials were ordered from the
manufacturer containing the appropriate chemicals and listing the particular vials
contained in the specific lot number identified on the manufacturer's certificate.
Ortiz-Vivar objected to the admission of the certificate only for lack of relevance.
The trial court concluded that the certificate was relevant and admissible under the
exceptions to the hearsay rule as a business record. Health care documents often
qualify as business records.18
15 State v. O'Cain. 169 Wash. App. 228, 248, 279 P.3d 926 (2012) (citing
Melendez-Diaz v. Massachusetts. 557 U.S. 305, 129 S. Ct. 2527, 174 L Ed. 2d 314
(2009): Bullcoming v. New Mexico. U.S. 131 S. Ct. 2705, 180 L. Ed. 2d 610
(2011); State v. Jasper, 174 Wash. 2d 96, 271 P.3d 876 (2012); State v. Haves. 165 Wn.
App. 507, 265 P.3d 876 (2012), review denied. 176 Wash. 2d 1020 (2013)).
16 id, at 252.
17 Ex. 11.
18 See Ziegler, 114 Wash. 2d at 540 (lab report ordered by nontestifying physician
held admissible as business record where testifying physician relied on report in
No. 70043-0-1/8
Here, the toxicologist testified about his familiarity with the gray-topped vials that
were purchased for the express purpose of blood analysis. He further testified that the
manufacturer's certificate contained the same lot number as the gray-topped vial used
to analyze Ortiz-Vivar's blood. The manufacturer's certificate did not contain any blood
test results and merely listed the lot number for the vials that were ordered to the state
toxicologist's specifications. The testimony ofthe toxicologist establishes a legitimate
business purpose, and Ortiz-Vivar does not establish that the certificate was prepared in
anticipation of litigation.
Ortiz-Vivar relies upon Brown as authority that such certificate is inadmissible
hearsay. But the court in Brown did not address a business records analysis,
mentioned only in passing the potential for a confrontation clause concern, and
ultimately concluded that any error in admitting the certificate was harmless under the
constitutional harmless error analysis. The key to Brown is that the toxicologist testified
that "the samples would have been clotted and would contain no alcohol in the absence
of the chemicals" and that "there was other sufficient evidence proving that the vials
contained the required stabilizer and preservative."19 Here, the toxicologist provided
similar testimony as to Ortiz-Vivar's blood sample.20
treatment of patient); State v. Doerflinger. 170 Wash. App. 650, 664-65, 285 P.3d 217
(2012) (radiologist report confirming treating physician's diagnosis of nasal fracture
properly held admissible as a business record), review denied. 177 Wash. 2d 1009 (2013).
19 Brown, 145 Wash. App. at 76.
20 In Brown, the court also noted that the label on the vials had been admitted.
Id. at 72. Even though the labels were not admitted here, the toxicologist's testimony
renders any confrontation concern harmless beyond a reasonable doubt.
8
No. 70043-0-1/9
Ortiz-Vivar filed a statement of additional grounds, arguing that he should not
serve any jail time because of the initiative he has undertaken in seeking counseling.
This is the same request that he made below. The court sentenced him to 364 days,
359 days suspended, provided he meets certain conditions including five days of actual
confinement. Ortiz-Vivar does not assert that the sentence was illegal. He does not
establish any grounds for this court to alter the time he must serve in jail.
Affirmed.
WE CONCUR:
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