No. The court decided the blood test results can't be used as evidence because the government didn't prove it followed a key instruction. There are very specific rules for collecting blood to make sure the test is accurate. One rule says to immediately shake the blood vial to mix it with chemicals that keep it from spoiling. The government offered no proof this was done. The court said that to be fair, the government must follow its own rules 'scrupulously,' or very carefully. Since they couldn't prove they did, the test result was thrown out.

Yes. One judge disagreed about the blood test. He said the court shouldn't just assume that missing one step makes the whole test wrong. He argued that the official paperwork signed by the nurse should be enough to show the blood was drawn properly. He believed it should be up to the defendant (Schwalk) to bring in evidence to prove the test was unreliable, not the government's job to prove every single tiny step was followed perfectly. He thought the other judges were making it too hard to prosecute drunk drivers.

Yes, someone can be guilty of being in 'actual physical control' of a vehicle even if they are asleep or unconscious, because the law aims to prevent drunk people from even getting into their vehicles. The law provides adequate warning of what conduct is prohibited and guidance for enforcement, so it is not unconstitutionally vague. However, the trial court should not have allowed the blood test results, because the State did not prove the blood sample was collected properly according to the State Toxicologist's required procedures that ensure the test is scientifically reliable. When the State doesn't prove it followed these procedures, it must have an expert testify to establish the test was administered fairly.

I agree the 'actual physical control' law applied to Schwalk and is constitutional. However, I disagree that the court was wrong to allow the blood test results. The majority guesses, without evidence, that not inverting the blood vial makes the test unreliable. That should be up to the State Toxicologist to decide, not the court. The law says the nurse's signed statement is good enough evidence the blood was drawn properly, and the driver can still prove an error affected the test's reliability. Allowing the test results was within the judge's discretion under the evidence rules.

No. Blood alcohol test results are inadmissible if the state fails to demonstrate scrupulous compliance with the State Toxicologist's collection procedures, unless the state provides expert testimony to otherwise establish the test's scientific accuracy. The statutory requirement that a test be 'fairly administered' mandates strict adherence to the official, approved methods designed to ensure reliability. Here, the state failed to offer any evidence that step four of the State Toxicologist's directions—inverting the vial to mix the blood with preservatives—was performed. Because this step pertains to the scientific accuracy of the test, failure to prove compliance is a foundational defect. Without such proof or alternative expert testimony on the test's reliability, the results cannot be admitted into evidence.

Yes. The blood test results should have been admitted. The majority wrongly speculates that failure to invert the vial affects scientific accuracy without any evidence to that effect. The legislature has determined that a signed statement from the nurse who draws the blood is prima facie evidence that the sample was 'properly drawn,' and the court should not judicially amend this standard. Any potential defect in the collection process should go to the weight of the evidence, not its admissibility. The burden should be on the defendant to challenge the test's reliability, especially since the law allows the defendant to subpoena the analyst at no cost.

Yes, a person who is asleep or unconscious can be convicted of being in 'actual physical control' of a vehicle because the purpose of the statute is preventive, aiming to deter intoxicated individuals from getting into their vehicles. The statute is not unconstitutionally vague because it provides adequate warning of the conduct proscribed and establishes minimum guidelines for law enforcement. However, the trial court erred in admitting the blood test results because the State failed to establish that the blood sample collection complied with the State Toxicologist's directives, which are necessary to ensure the scientific accuracy and reliability of the test. When the State fails to prove compliance with the directives that go to scientific accuracy, it must prove fair administration of the test through expert testimony.

I concur that the 'actual physical control' statute applied to Schwalk and was constitutional. However, I respectfully dissent from the holding that the trial court erred in admitting the blood test results. The majority speculates, without evidence, that failure to invert the vial as directed calls into question the scientific accuracy of the results. It is for the State Toxicologist, not this court, to decide what affects scientific reliability. The legislature has provided that the nurse's signed statement is prima facie evidence that the sample was properly drawn, and no further foundation may be required. The driver may still show that an error seriously affected reliability. Admission of the report was within the trial court's discretion under the Rules of Evidence.

State v. Schwalk

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