2019 UT App 159
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
LUKE ALLEN MOORE,
Appellant.
Opinion
No. 20160931-CA
Filed September 26, 2019
Third District Court, Salt Lake Department
The Honorable Vernice S. Trease
No. 20160931
Debra M. Nelson and E. Rich Hawkes, Attorneys
for Appellant
Sean D. Reyes and Lindsey Wheeler, Attorneys
for Appellee
JUDGE DIANA HAGEN authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and JILL M. POHLMAN concurred.
HAGEN, Judge:
¶1 Luke Allen Moore appeals his conviction for Driving
Under the Influence of Alcohol/Drugs (DUI), arguing that the
district court abused its discretion by admitting blood toxicology
evidence where the State did not present direct evidence of how
his blood samples were handled between the time the crime lab
received the samples and when they were tested. Moore
contends that the absence of this evidence created a gap in the
chain of custody that rendered the blood toxicology evidence
inadmissible for lack of authentication. We conclude that the
district court did not abuse its discretion by admitting the
toxicology report because the State presented sufficient evidence
that the tested blood samples were in substantially the same
State v. Moore
condition as when they were collected and Moore failed to rebut
the presumption that the State properly handled the blood
samples once they were delivered to the crime lab. And, in any
event, there was no evidence to suggest that potential
mishandling would have substantially altered the evidence.
Accordingly, we affirm Moore’s DUI conviction.
¶2 Moore also contends that the district court improperly
sentenced him for a class C misdemeanor, rather than an
infraction, for Failure to Stay in One Lane. The State concedes
this point, and we therefore vacate and remand to the district
court with instructions to enter Moore’s conviction for Failure to
Stay in One Lane as an infraction and adjust the sentence
accordingly.
BACKGROUND 1
¶3 In the early morning of August 14, 2014, an officer
stopped Moore for driving with a broken brake light and failing
to stay in the proper lane. After noticing multiple signs of
intoxication and administering a series of field sobriety tests, the
officer arrested Moore for driving under the influence. Following
Moore’s arrest, the officer obtained a search warrant to get a
sample of Moore’s blood for a toxicology test.
¶4 A certified phlebotomist carried out the warrant and drew
Moore’s blood. The phlebotomist collected Moore’s blood in two
vials, each containing preservatives to prevent degradation of
the samples. Both vials were labeled with a sticker that provided
Moore’s name, his date of birth, the case report number, the date
and time of the blood draw, and the phlebotomist’s initials. To
1. “On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly.”
State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346 (cleaned up).
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State v. Moore
protect the integrity of the blood samples against tampering, the
phlebotomist placed tamper-resistant blue tape over the top of
each vial and initialed the tape. As an additional protection
against tampering, the phlebotomist placed the vials into an
envelope, sealed the envelope with clear tape, and initialed that
tape. Finally, the phlebotomist placed the envelope in a locked
evidence refrigerator and filled out a chain of evidence form for
the blood samples.
¶5 About seven hours after the phlebotomist placed the
blood samples in the evidence refrigerator, an evidence
technician filled out the toxicology request form, retrieved the
vials of Moore’s blood, and took them to the Utah Public Health
Laboratories (the crime lab). After verification that the samples
were properly labeled and that the tamper-resistant tape was
intact, the evidence technician turned the samples over to a
crime lab technician and received a receipt for the samples. The
identity of the crime lab technician was not recorded.
¶6 Four days later, a toxicologist retrieved the samples from
the crime lab refrigerator and tested Moore’s blood to determine
its alcohol content. The resulting toxicology report revealed that
Moore’s blood alcohol content was .16, twice the then-legal limit
for driving in Utah. See Utah Code Ann. § 41-6a-502(1)(a)
(LexisNexis 2014). At trial, the toxicologist testified that it was
the crime lab’s regular procedure to refrigerate any blood
samples shortly after they are received. She further testified that
the preservatives in the vials would prevent unrefrigerated
blood from degrading for several days, and that any blood
degradation would likely lower its alcohol content.
¶7 A jury convicted Moore of DUI, Failure to Stay in One
Lane, and other charges not relevant to this appeal. He now
appeals his DUI conviction and the classification of his
conviction for the lane violation.
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State v. Moore
ISSUES AND STANDARDS OF REVIEW
¶8 Moore raises two issues on appeal. First, Moore argues
that the district court abused its discretion by admitting the
blood toxicology report into evidence without requiring the State
to lay adequate foundation. Specifically, he contends that the
State did not establish that the tested blood was in substantially
the same condition as when it was collected because of a
“missing link” in the chain of custody. On appeal, “the legal
questions underlying the admissibility of evidence” are
reviewed for correctness, but a district court’s “determination
that there was a proper foundation for the admission of
evidence” is reviewed for “abuse of discretion.” State v. Griffin,
2016 UT 33, ¶ 14, 384 P.3d 186 (cleaned up).
¶9 Second, Moore argues that the district court improperly
entered a conviction and sentence for a class C misdemeanor for
Failure to Stay in One Lane because the legislature reclassified
that offense to an infraction in between the time of Moore’s
offense and his sentencing. “[W]hether defendants are entitled to
a lesser sentence when the legislature reduces the penalty for the
crime charged after conviction but before sentencing” is a
“question[] of law,” which we review for correctness. State v.
Yates, 918 P.2d 136, 138 (Utah Ct. App. 1996).
ANALYSIS
I. Admission of the Toxicology Report
¶10 To authenticate a proffered piece of evidence, rule 901(a)
of the Utah Rules of Evidence states that “the proponent must
produce evidence sufficient to support a finding that the item is
what the proponent claims it is.” Therefore, “before a physical
object or substance connected with the commission of a crime is
admissible in evidence there must be a showing that the
proposed exhibit is in substantially the same condition as at the
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State v. Moore
time of the crime.” State v. Torres, 2003 UT App 114, ¶ 8, 69 P.3d
314 (cleaned up). “If after consideration of the circumstances
surrounding preservation, custody, and the likelihood of
tampering with the substance the trial court is satisfied that the
article or substance has not been changed or altered, the trial
court may permit its introduction into evidence.” Id. (cleaned
up). After the district court makes the threshold finding that
there is a “reasonable probability the proffered evidence has not
been changed in any important respect,” State v. Griffin, 2016 UT
33, ¶ 26, 384 P.3d 186 (cleaned up), then “it is up to the jury to
weigh the evidence based on its assessment of the showing of
chain of custody,” Torres, 2003 UT App 114, ¶ 8 (cleaned up).
¶11 Moore argues that the State failed to authenticate the
blood sample evidence. He contends that the State’s failure to
present direct evidence of how the crime lab handled the blood
samples before testing broke the chain of custody and rendered
the toxicology report inadmissible. In particular, because blood
sample evidence can degrade unless refrigerated, Moore argues
that the State failed to demonstrate that the tested blood samples
were “in substantially the same condition” as when they were
drawn from Moore because the State produced no evidence as to
when the samples were put into the refrigerator at the crime lab.
We disagree.
¶12 The State offered sufficient circumstantial evidence to
establish that the blood samples were handled properly at the
crime lab. Moore’s blood samples were uniquely labeled and
identifiable from the time they were collected until testing. The
State produced a receipt demonstrating that Moore’s blood
samples were delivered to the crime lab. The toxicologist
testified that it was the practice of crime lab technicians to place
new blood samples in the evidence refrigerator shortly after
receiving the samples. The toxicologist further testified that she
did, in fact, find and retrieve Moore’s samples from the evidence
refrigerator. This evidence, taken together, was sufficient for the
district court to conclude that the blood sample evidence was
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State v. Moore
authenticated. See State v. Wynia, 754 P.2d 667, 671 (Utah Ct.
App. 1988) (“The party proffering the evidence is not required to
eliminate every conceivable possibility that the evidence may
have been altered.”).
¶13 Moreover, “[o]nce the evidence is in the hands of the
state, it is generally presumed that the exhibits were handled
with regularity, absent an affirmative showing of bad faith or
actual tampering.” Id.; see also Griffin, 2016 UT 33, ¶ 26 (“Utah
courts have held that evidence with a sufficient chain of custody
may be admitted when no evidence suggesting tampering has
been presented.”). Despite this presumption, Moore offered no
evidence that the crime lab deviated from its standard practice
concerning blood sample refrigeration or that the blood samples
were otherwise tampered with or handled improperly.
¶14 Instead, Moore relies on authority from other jurisdictions
to argue that blood sample evidence is inadmissible when the
prosecution fails to identify each and every “link” in the chain of
custody. See, e.g., Creel v. State, 618 So. 2d 132, 134 (Ala. Crim.
App. 1992) (“The chain of custody is composed of ‘links.’ A ‘link’
is anyone who handled the item. The State must identify each
link from the time the item was seized.” (cleaned up)). However,
in Utah, “showing a reliable chain of custody is just one way to
authenticate evidence” because “evidence is generally
admissible if the trial court is satisfied that the evidence has not
been changed or altered.” State v. Smith, 2012 UT App 370, ¶ 15,
293 P.3d 1148 (cleaned up). Therefore, Moore is mistaken that
the failure to identify the crime lab technician or present direct
evidence of how the blood was handled at the crime lab is fatal
to the toxicology report’s admissibility. 2
2. The sister-jurisdiction cases Moore cites are also
distinguishable inasmuch as they all deal with significant gaps
in the chain of custody before the evidence was received by the
(continued…)
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State v. Moore
¶15 In any event, even if the blood sample evidence had not
been promptly refrigerated, the record in this case still supports
the district court’s determination that the samples tested were in
substantially the same condition as when Moore’s blood was
drawn. See id. (“Before a physical object or substance connected
with the commission of a crime is admissible in evidence there
must be a showing that the proposed exhibit is in substantially
the same condition as at the time of the crime.” (cleaned up)).
Moore’s blood was kept in special vials containing preservatives
to prevent blood degradation and coagulation. The toxicologist
testified that the preservatives would likely prevent significant
degradation even if the blood samples were left unrefrigerated
(…continued)
testing laboratory. See, e.g., Creel v. State, 618 So. 2d 132, 134 (Ala.
Crim. App. 1992) (reversing a conviction where a four-day gap
was unaccounted for before the crime lab received the evidence
and where the individuals in charge of maintaining the evidence
in those four days could not be identified); Suttle v. State, 565
So. 2d 1197, 1198–1200 (Ala. Crim. App. 1990) (reversing a
conviction where “absolutely no effort was made by the
prosecution to account for the whereabouts of the [blood]
samples” for four days before they were received by the
toxicologist); Ellis v. Unemployment Comp. Bd. of Review, 749 A.2d
1028, 1029–32 (Pa. Commw. Ct. 2000) (concluding that without
testimony regarding how urine samples were obtained or how
they were transported to the testing laboratory, the employee
was entitled to unemployment benefits). In Moore’s case,
however, the only alleged gap in the chain of custody occurred
after the crime lab received the blood samples. The courts of at
least one other state have determined that such a situation does
not create a missing link because “a crime lab and all its branch
offices and employees are considered as a single link in the chain
of custody.” Maldonado v. State, 603 S.E.2d 58, 60 (Ga. Ct. App.
2004); see also Herrera v. State, 702 S.E.2d 854, 857 (Ga. 2010).
20160931-CA 7 2019 UT App 159
State v. Moore
“for several days.” And the toxicologist’s unrebutted testimony
indicated that, even if the blood samples did degrade, the
degradation would likely lower the blood samples’ alcohol
content, thus working in Moore’s favor.3 As a result, even if the
crime lab had failed to refrigerate Moore’s blood samples in a
timely manner, it is reasonably probable that the evidence was
not changed in any important respect. See Griffin, 2016 UT 33,
¶ 26.
¶16 Therefore, we conclude that the district court acted well
within its discretion in admitting the toxicology report.
II. Sentencing for Failure to Stay in One Lane
¶17 At the time of Moore’s offense in 2014, Failure to Stay in
One Lane was a class C misdemeanor. Utah Code Ann.
§ 41-6a-710(1) (LexisNexis 2014). However, in 2015, prior to
Moore’s sentencing, the legislature amended the law to reclassify
that offense as an infraction. Id. § 41-61-719(1) (Supp. 2015).
Despite the reclassification, Moore’s conviction for Failure to
3. On appeal, Moore cites several academic articles to suggest
that, absent refrigeration, the alcohol content of blood samples
may increase due to blood fermentation. See generally Carrie R.
Valentine & Jimmie L. Valentine, Collection and Preservation of
Forensic Blood Specimens: The Fermentation Defense, in
Understanding DUI Scientific Evidence 235, 235-71 (Aspatore
2013), 2013 WL 6140722, at **1–21; Joyce Chang & S. Elliot
Kollman, The Effect of Temperature on the Formation of Ethanol by
Candida Albicans in Blood, 34 J. Forensic Sci. 105, 105–09 (1989).
However, these articles are not part of the record as they were
never presented to the district court. “An appellate court’s
review is limited to the evidence contained in the record on
appeal. Therefore, we will not consider evidence which is not
part of the record.” State v. Pliego, 1999 UT 8, ¶ 7, 974 P.2d 279
(cleaned up).
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State v. Moore
Stay in One Lane was entered as a class C misdemeanor. Moore
argues, and the State agrees, that his conviction should be
entered as an infraction because “[d]efendants are entitled to the
benefit of the lesser penalty afforded by an amended statute
made effective prior to their sentencing.” State v. Yates, 918 P.2d
136, 138 (Utah Ct. App. 1996).
¶18 We agree with the parties and conclude that the district
court erred by sentencing Moore for a class C misdemeanor
rather than an infraction for Failure to Stay in One Lane.
CONCLUSION
¶19 The State made a sufficient showing that the tested blood
samples were in substantially the same condition as when they
were collected from Moore. Therefore, the district court did not
abuse its discretion by admitting the toxicology report despite
the lack of direct evidence as to how the crime lab handled the
blood samples between receipt and testing. Accordingly, we
affirm Moore’s DUI conviction.
¶20 With respect to Moore’s conviction for Failure to Stay in
One Lane, we vacate and remand to the district court for the
limited purpose of entering the conviction as an infraction and
resentencing Moore at the correct level of offense.
¶21 Affirmed in part, vacated in part, and remanded.
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