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Driver claims destroyed blood evidence violates due process

More than nine months after Michael Luedtke had rammed his Ford Escort into the back of a stopped vehicle at an Oshkosh intersection, he was charged on Dec. 19, 2009, with six felony counts of impaired driving and operating a vehicle with a controlled substance in his blood.

The trouble for prosecutors was that a blood sample taken from Luedtke following the accident had been destroyed as part of routine procedures at the Wisconsin State Hygiene Lab. If Luedtke’s arguments stood up in court, this would mean that an essential piece of evidence had been eliminated months before the defendant even knew he was facing charges.

In State of Wisconsin v. Luedtke, 2013 AP 1737, the Wisconsin Supreme Court agreed to review Luedtke’s case. Among the matters up for scrutiny were his contentions that his state and federal due-process rights had been violated because he had been unable to examine the blood evidence against him or receive notice before the blood was destroyed.

Luedtke also asserted that Wisconsin’s strict liability statute was unconstitutional, arguing it lacked any element of “scienter,” which refers to intent or knowledge of wrongdoing and is a standard found in most criminal statutes.

Other arguments centered on the no-longer-existing blood sample. When samples of that sort are destroyed, Luedtke’s counsel asked in his brief, “[h]ow can a driver who insists he never ingested a restricted substance demonstrate his innocence?”

On April 27, 2009, Luedtke was searching for his car phone while driving through Oshkosh. According to the allegations, he was looking down to pick up his phone just before his borrowed Ford Escort rammed into the back of a car that had stopped to turn left.

The accident pushed Luedtke’s head and chest against the Escort’s steering wheel and visor, leaving the 55-year old driver disoriented and in pain, according to the defendant’s statements.

The officers who arrived at the scene did not immediately notice signs suggesting that Luedtke was impaired. Only after he had gone to a hospital did field sobriety tests show that he was under the influence, according to court records.

At the scene, Luedtke had agreed to allow the police to search the borrowed Ford Escort. They found several syringes, an “unidentified” prescription bottle and a spoon in the area of the driver’s side compartment.

A witness said that when Luedtke got out of the car, he was carrying a blue cloth, which he is alleged to have stuffed into a nearby sewer drain. The cloth was later found to contain syringes and other paraphernalia.

Luedtke conceded he occasionally injected morphine to deal with pain resulting from a broken back years earlier, but said he never took cocaine and contested that he was unimpaired at the time of the accident. He said he was on anti-depressants and had taken diazepam, along with other medications, as recently as the day before.

At the hospital, a blood draw was taken from Luedtke and sent to the Wisconsin State Hygiene Lab for routine testing. Luedtke’s blood later tested positive for cocaine in the amount of 20 nanograms per milliliter and for cocaine metabolite in the amount of 330 nanograms per milliliter.

Luedtke cited constitutional grounds in an attempt at having the blood test report thrown out. His motion to suppress was rejected in January 2011 by Winnebago County Judge Karen Seifert. A jury eventually found him guilty of operating a vehicle with a detectable amount of a controlled substance in his blood, but not guilty of operating a vehicle under the influence.

Luedtke tried to appeal the ruling using several arguments, all of which had been rejected previously by the 2nd District Appellate Court.

First, he argued that Wis. Stat. 346.63(1)(am) had been unconstitutionally applied because it imposes strict liability. In his case, he argued, a trace amount of a controlled substance in the blood should have required furnishing some evidence of “scienter.”

Luedtke firmly denied taking or, in any way, ingesting before the accident a drug or substance that would have left a trace amount of cocaine or cocaine metabolite in his blood.

Second, Luedtke argued that, when the State Hygiene Lab destroyed his blood sample without providing notice, he had been denied the due-process protections conferred on him by both the Wisconsin and U.S. constitutions. That routine destruction, he contended, had prevented him from having the blood subjected to further testing, a step that might have exonerated him.

Luedtke’s arguments relied in part on State v. Griffin, 220 Wis. 2d 371 (Ct. App. 1948). Luedtke’s counsel cited that case to assert that a blood test by itself – showing that the defendant had a measurable amount of cocaine and cocaine metabolite in his system – could not provide sufficient evidence to convict him for possession.

In Griffin, the appellate court found that urine or blood samples that had tested positive for cocaine were insufficient, by themselves, to convict a defendant. The judges noted that cocaine could be ingested without a person’s being aware.

Studies have even shown that there are trace elements of cocaine on as much as 85 percent of the U.S. money supply. Luedke suggested that Griffin and other cases show that due process demands that the principle of scienter should apply.

Luedtke’s legal counsel pointed to other federal and Wisconsin cases which interpreted statutes to require some evidence of scienter. Among them were Staples v. U.S., a federal case prohibiting unregistered machine guns; as well as the Wisconsin cases of State v. Alfonsi, involving the state’s bribery statute; and State v. Petrone, involving the sexual exploitation of a child.

In response to Luedtke’s contentions, the Wisconsin Department of Justice argued the Griffin case should not apply to Luedtke. Griffin, justice officials contended, had been accused of possessing cocaine — a charge which, by its nature, involves scienter.

The Department of Justice also noted that several of Wisconsin’s transportation-related statutes do not require evidence of scienter to prove that a driver is culpable. Among them is Wis. Ch. 346.63(7)(a)1), which prohibits drivers from having any degree of alcohol concentration in their blood while they are operating commercial vehicles; and Wis. Ch. 346.63(2m), which prohibits underage drivers from having any amount of alcohol in their blood – no matter if they know how the alcohol was ingested – when they are operating a vehicle.

Furthermore, justice officials contended that other factors used by courts to gauge whether the principle of scienter should apply to a statute – laid out in State v. Jadowski – do not favor Luedtke in this case, an assertion strongly denied in the defendant’s brief.

For the purposed interpretation, the factors established by Jadowski include: a statute’s language, its legislative history, its related statutes, whether it can practically be enforced, whether it protects the public, and the severity of the punishments it imposes on violators.

For example, justice officials argued that when Wisconsin’s “drugged driving” statute was enacted, legislators were fully aware that they were establishing strict liability. The legislators knew other language could be added to require scienter, but chose to omit it because they considered the offense they were trying to prohibit to be unusually serious. Their goal was to reduce the amount of evidence needed to make a charge stick without needing to prove someone was “under the influence.”

In other arguments, Luedkte contended that the state’s due-process obligation to protect post-charging evidence is greater under the Wisconsin Constitution than the federal. Luedtke’s brief cites State v. Dubose, 2005 WI 126, a case involving the identification of a defendant. In that case, the court suggested that the Wisconsin and U.S. constitutions do not move in lockstep.

The state countered that the court was bound to follow precedents established in a series of other cases, mainly because no evidence had been presented showing any bad-faith intent to destroy the blood evidence or that the destroyed evidence would have exculpated Luedtke.

Those cases – most notably Arizona v. Youngblood, 288 U.S. 51 (1988), and State v. Greenwold, 181 Wis. 2d 881 (Ct. App. 1994), and Greenwold II, 189 Wis. 2d 59 (Ct. App. 1994) – establish that destroying evidence indeed can constitute a violation of state and federal due-process protections, but only if law enforcement fails to preserve evidence that was apparently exculpatory or otherwise acts in bad faith.

Luedtke presented no evidence that the State Hygiene Lab had wrongly destroyed the evidence and broken its routine procedures. And although the defendant wanted to have the blood evidence tested, Luedtke’s counsel never argued, per se, that the results would be exculpatory.

Luedtke contended that the general line of argument used in Youngblood and Greenwold should not be controlling or persuasive in this matter. His counsel cited another case, State v. Dubos, to suggest that the Wisconsin Constitution can provide due-process protections beyond those found in the federal constitution.

“Continued adherence to the Youngblood “bad faith” test must be re-examined in light of this Court’s conclusion in State v. Dubose,” according to Luedtke’s brief, which could give defendants a better chance of properly defending themselves against charges of strict liability, as well as reduce the risk of erroneous convictions.

Oral arguments were heard in the case on Feb. 3 and a decision may be issued by the end of the current court session.


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