Criminal Practice — DWI – Expert Testimony – Hospital Blood Test – Constitutional – Confrontation Clause

State v. Howard (Lawyers Weekly No. 14-16-1145, 12 pp.) (Mark Davis, J.) Appealed from Forsyth County Superior Court (Gary Gavenus, J.) N.C. App. Unpub.

Holding: The state’s expert explained the instrumentation and methodology used by the hospital in testing defendant’s blood sample and testified that he had “very high confidence in the value” reported in defendant’s hospital records, and the expert then detailed the mathematical formula he used in converting the hospital’s calculation of defendant’s alcohol concentration (in plasma) into grams per 100 milliliters of whole blood. Under these circumstances, the trial court did not abuse its discretion in concluding that the expert’s testimony was based on sufficient facts or data under N.C. R. Evid. 702.

We find no error in defendant’s conviction of driving while impaired and reckless driving to endanger.

The state introduced defendant’s hospital records under the business records exception to the hearsay rule. Although defendant’s hospital records were ultimately used in defendant’s criminal prosecution, we cannot agree with defendant’s assertion that the records were testimonial.

The blood test indicating defendant’s blood alcohol level was one of the laboratory tests ordered by Dr. Lefebvre so that the results could be reviewed and considered in the medical decision making process. The hospital records also indicate that the blood panel was ordered by Dr. Lefebvre before samples were drawn pursuant to police Corporal Necessary’s request for a blood test.

Consequently, while the blood sample provided to Cpl. Necessary was clearly intended to be used for the purpose of prosecution, the separate blood test conducted by the hospital and the records documenting its results were for medical treatment purposes and, thus, were nontestimonial. As such, the Confrontation Clause was not violated by the admission of defendant’s hospital records.

No error.