COMMONWEALTH OF KENTUCKY



COMMONWEALTH OF KENTUCKY

MARSHALL DISTRICT COURT

CASE NO. 04-T-00461

COMMONWEALTH OF KENTUCKY PLAINTIFF

VS.

RANDELL XXXXXXXX DEFENDANT

MOTION TO REDACT LAB REPORT AND SUPPRESS CERTAIN PORTIONS FROM EVIDENCE

OR ALTERNATIVELY

MOTION FOR FUNDS FOR EXPERT

Now comes the Defendant, Randall XXXXXXXX, through counsel, and respectfully requests this honorable Court to exclude the results of urine testing conducted by the Kentucky State Police Lab in his upcoming trial. The Defendant so moves the Court pursuant to Rules 403 and 404(b) of the Kentucky Rules of Evidence.

In support of this Motion, the Defendant states as follows:

I. FACTS:

On April 10, 2004, Randell Stocton was arrested for DUI. Both a blood sample and urine sample were taken. The blood sample showed negative for alcohol. On August 5, 2004, a lab report was issued which showed the following information:

Drug Content of Blood: Alprazolam 0.006 mg%; Carisoprodol 0.29 mg%

Drug Content of Urine: Methamphetamine, Alprazolam,

Hydrocodone, Meprobamate

II. LAW:

Article IV of the Kentucky Rules of Evidence governs questions of relevancy. KRE 401 defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probably or less probable than it would be without the evidence.”

In this case, the lab report shows that there was no methamphetamine or hydrocodone (Lortab) in his blood. Given the close proximity in time to the taking of the sample and the time of the alleged driving while under the influence, it can be inferred that he was not driving under the influence of methamphetamine or Lortab . That the Defendant – according to the lab report – ingested methamphetamine and hydrocodone (Lortab) sometime in the recent past may have some tendency to make the fact that he ingested it close enough in time to the operation of the motor vehicle to render him under the influence of methamphetamine while driving more probable. However, the probity of this is greatly diminished by the absence of any trace of meth or Lortab in the blood.

On the other hand, the presence of the items in the urine is extremely prejudicial to the right of Mr. XXXXXXXX to have a fair trial. The probative value of meth and Lortab in the blood is greatly outweighed by the danger of this undue prejudice. Two rules, KRE 403 and 404, govern.

A. KRE 403

Under KRE 403, relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of undue prejudice, confusion of the issues, or misleading the jury . . .” In determining whether evidence should be excluded under this rule, Kentucky courts must apply a three-step balancing test. First, the court must assess the probative value of the evidence. Second, it must assess the harmful effects of the evidence. Finally, the court must weigh the probative value against the prejudicial effects of to determine whether the danger of prejudice substantially outweighs the probative value of the evidence.

Although there are no published opinions on the specific question at hand, the Supreme Court of Kentucky came close to ruling on this issue in Bush v. Commonwealth, 839 S.W.2d 550 (Ky. 1992). In that case, the Court was faced with the issues of whether evidence of marijuana and methamphetamine in urine test results was admissible to show intoxication and wanton conduct in a wanton murder case where evidence showed only that drugs were present in the urine. There was no testing for drugs in the blood, and the date and time of the ingestion could not be calculated.

A majority of the Court determined that the admission of the urine tests was in error, although it was harmless error because the defendant’s blood alcohol level was sufficient to support a finding of wanton conduct. However, the majority cautioned that on retrial the Commonwealth should not argue that the defendant was under the influence of marijuana or methamphetamine without sufficient facts in the record. Id. at 557. Further, Justice Leibson, who was joined by two other justices in a partial dissent argued that the urine test results should have been excluded under KRE 403, stating:

The evidence failed the test of relevance because there was nothing to infer that the presence of marijuana and amphetamine as found in the urine made the ultimate fact at issue, whether the appellant was driving under the influence, any more or less probable . . . Assuming that there is some slight reason for making an argument to the contrary, considering the inflammatory effect on the listener of the evidence suggesting drug abuse, the unduly prejudicial and inflammatory nature of the evidence so far outweighs the probative value that for the trial court to permit such evidence is an abuse of discretion.

Id. at 557-58.

Thus, even where the defendant’s blood alcohol level was well over the legal limit, at least three justices were willing to hold that the admission of the urine test results was in clear violation of KRE 403.

B. KRE 404

Moreover, in criminal cases KRE 404 excludes evidence of other crimes, wrongs, or acts of the defendant when offered to prove the character of the defendant to show that the Defendant’s conduct on a particular occasion was inconformity therewith.

Under KRE 404, Kentucky courts apply a three-part balancing test. First, the court must determine whether the evidence of wrongful acts is relevant for some acceptable purpose other than to show the criminal disposition of the accused. Second, there must be sufficient proof that the defendant was engaged in the prior bad conduct. Third, the court must conduct an inquiry under KRE 403 (described above) to determine whether the potential prejudice stemming from the admission of the evidence substantially outweighs the probative value of the evidence.

Although the Supreme Court of Kentucky has not ruled on the admissibility of urine test results as character evidence, the Court rendered an opinion in 2003 which reversed a reckless homicide conviction and held that “habit evidence” that a defendant smoked marijuana on a daily basis was not admissible to prove that he smoked marijuana on the day of the car wreck giving rise to the charge. Burchett v. Commonwealth, 98 S.W.3d 492 (Ky. 2003).

III. APPLICATION OF LAW TO FACTS:

The evidence from the urine testing in this case should be excluded under the rules of evidence discussed above. If admissible, this evidence will serve only to show that the Defendant possibly ingested methamphetamine (although Defendant disputes this, and believes the positive finding of methamphetamine is due to a by-product of some other legal drug he has taken) at some point in time before his operation of the motor vehicle. It cannot show that methamphetamine or hydrocodone was present in his bloodstream in an amount that would support an inference that he was under the influence of at the time in question. Therefore, the test results are only probative of past use, and, for the evidence to have any relevance, the jury must infer from that past use that the Defendant ingested marijuana close enough in time to his operation of the vehicle so that he was under the influence of marijuana at that time.

Thus, two inferences are required. First, the jury must infer that the Defendant ingested methamphetamine and hydrocodone at some point in the recent past. The jury can infer this from the presence of the drugs in his urine sample. However, the jury must then go beyond this initial inference and jump to an additional conclusion; that the Defendant ingested these drugs at a time sufficiently close to the operation of the vehicle so that he was “under the influence’ at the time of operation. This second inference cannot be properly made.

There is no basis in fact for such an inference. A longstanding rule of law in Kentucky prohibits the “piling on” of one inference after another to meet an evidentiary burden. See Pendleton v. Commonwealth, 172 S.W.2d 52 (Ky. 1943)(“when an inference is based on a fact, that fact must be clearly established and if the existence of such a fact depends upon a prior inference no subsequent inferences can legitimately be based upon it.”) For instance, in Parker v. Commonwealth, 270 S.W.2d 1 (1955), the Kentucky Court of Appeals held that testimony that the defendant sped through town at high speeds and disregarded traffic regulations should have been excluded from evidence in a manslaughter conviction where the conduct seen by the witnesses occurred two to three miles away from the scene of the eventual wreck. Because of the distance between the conduct seen by the witnesses and the wreck, the Court held that their testimony was highly prejudicial and insufficiently probative. Had the conduct been closer to the scene of the wreck, their testimony would have been admissible. Id.

Here, the urine sample test results establish the presence of methamphetamine or hydrocodone in the Defendant’s urine. From that fact, the jurors will be asked to infer that the Defendant had used these drugs in a broad timeframe—at least a couple of days—prior to giving the sample. This is probably a permissible inference. However, after making this inference, the jurors will be asked to infer that the Defendant had ingested them close enough in time to his operation of the vehicle as to cause him to be under the influence of the marijuana at the time of operation. Because there are no additional facts to support this second inference, it is improper under case law cited above.

Furthermore, such an inference, If it can logically be made at all, must be made as a character inference that is impermissible under KRE 404. The only possible conclusion that would lead the jurors to a conclusion of guilt is that since he had used marijuana in the past, he surely must have used it this time—the precise inference that is prohibited under KRE 404.

IV. CONCLUSION:

The results of the urine test must be excluded. Assuming it meets the threshold requirement of factual relevance under KRE 401, the danger of unfair prejudice to the Defendant substantially outweighs the probative value of the evidence under KRE 403. Further, the only inference the jury can draw form the test results that bears on the ultimate issue in this case requires the jury to use those results in a way that is impermissible both because it requires a double inference and because it is being used as character evidence contrary to KRE 404.

WHEREFORE the Defendant respectfully requests that the results of the Kentucky State Police Lab’s testing of the Defendant’s urine sample in the above-captioned matter be excluded from evidence at the Defendant’s trial, and the lab report be so redacted.

V. ALTERNATIVE MOTION FOR EXPERT FUNDS

In the event that the urine sample is not suppressed, the defense requires funds for an expert who will presumably testify to the following: (1) the absence of methamphetamine and hydrocodone in the blood indicate that it had passed out of his system, and (2) therefore, the Commonwealth cannot establish that the drugs would have been present at the time of driving. Furthermore, the defendant believes the finding of methamphetamine to be in error, and therefore consultation regarding false positives for methamphetamine is required.

WHEREFORE, in the even the urine sample is not suppressed, funds and time with which to hire an expert are requested.

Respectfully Submitted,

__________________________

B. Scott West

Asst. Public Advocate

503 N. 16th St.

Murray, KY 42071

(270) 753-4633

NOTICE

Please be advised that the foregoing Motion will be brought on for hearing on the 6th day of October, or as soon thereafter as counsel may be heard.

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Motion was served via U.S. Mail this 23rd day of August, 2004.

____________________________

Scott West

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