
    STATE of Louisiana, Appellee, v. Robert M. HONEYMAN, Appellant.
    No. 20501-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 14, 1989.
    Rehearing Denied July 13, 1989.
    
      Hall & Golden by William D. Hall and W. Eugene Golden, Shreveport, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., Richard L. Carney, Tommy J. Johnson, Asst. Dist. Attys., Shreveport, for appellee.
    Before NORRIS and HIGHTOWER, JJ., and JASPER E. JONES, J. Pro Tem.
   JASPER E. JONES, Judge Pro Tem.

Robert M. Honeyman was charged by bill of information with vehicular homicide in violation of LSA-R.S. 14:32.1 after the vehicle he was operating wrecked killing one of the two passengers. The defendant’s blood was determined to contain .16 percent by weight of alcohol approximately an hour and 45 minutes after the accident pursuant to a gas chromatograph test. The defendant filed a motion to suppress the results of the blood alcohol test which the trial court denied. The defendant was found guilty as charged by a jury and sentenced to two years at hard labor, the minimum sentence.

The defendant appeals his conviction raising 36 assignments of error, but only briefing seven assignments. Finding merit in defendant’s first assignment of error that the results of the blood alcohol test should not have been introduced into evidence, we reverse his conviction and remand the case to the district court for a new trial.

Facts

This one vehicle accident occurred during the early morning hours on October 20, 1985. The defendant was driving a 1975 Cadillac with two guest passengers when the car struck the right girder of the Old Blanchard Road bridge in Caddo Parish. The impact caused the collapse of a span of the bridge. The car landed on its roof and came to rest approximately 100 feet from the initial point of impact. The front seat passenger, Reginald Stanley, died from car-dio-respiratory failure when his neck was hyperflexed forward, dislocating his spine and lacerating or severing his spinal cord.

The defendant was injured in the accident and taken to the hospital. While there a sample of his blood was drawn by an employee of the North Louisiana Crimi-nalistics Laboratory (crime lab) who was trained to draw blood for drug and alcohol related offenses. The blood was drawn in a collection kit approved by the Department of Public Safety and kept in the possession of the employee who drew the blood until he turned it in to the crime lab. The crime lab analysis revealed the sample contained 0.16 percent of alcohol by weight approximately an hour and 45 minutes after the accident. An expert on blood alcohol analysis estimated the defendant’s blood alcohol level at the time of the accident would have been between .186 and .20 percent.

Admissibility of Blood Tests

Defendant argues the results of the blood alcohol test should not have been introduced into evidence in light of State v. Rowell, 517 So.2d 799 (La.1988). In Ro-well, the Louisiana Supreme Court held the admission of the gas chromatograph tests results was erroneous because the state failed to meet its burden of proving the regulations insured the integrity and reliability of blood alcohol analysis. The court found the regulations concerning the qualifications of a person seeking a permit to conduct blood analysis were insufficient, the regulations did not provide for the repair, maintenance, or inspection of the gas chromatograph, the regulations did not require the chemist who performs the blood analysis to have the skills to perform some repairs on the instrument, the regulations did not sufficiently provide for the preservation of the blood sample, and finally, the regulations were not sufficient to insure the accuracy of the chemicals used to calibrate the gas chromatograph.

Tests for suspected drunken drivers are governed by LSA-R.S. 32:661 et seq. The Department of Public Safety is authorized to approve satisfactory techniques or methods to assure the accuracy of breath and blood analysis. LSA-R.S. 32:663; State v. Rowell, supra.

The regulations which were found deficient in Rowell are the same regulations in effect at the time the defendant’s blood was analyzed. The State maintains this case is distinguishable from Rowell because the additional procedures and safeguards employed by this particular crime lab facility are sufficient to ensure the integrity and reliability of the blood alcohol test results.

Honeyman’s blood sample was analyzed at the crime lab by Rebecca Collins who is certified by the Department of Public Safety to analyze blood. The crime lab established its own guidelines and procedures which the State claims exceeds the regulations established by the Department of Public Safety. The crime lab’s procedures add nothing to the Department of Public Safety’s regulations concerning the qualifications of persons seeking a permit to conduct blood analysis or the qualifications of persons to perform maintenance and inspection of the instruments which the Supreme Court found deficient. The crime lab does have additional procedures concerning the method of calibrating the instrument, the types of standards used in the calibration, and the method of calculating the percentage of alcohol in the blood sample. The crime lab’s procedures do provide detailed descriptions of the chemicals used to calibrate the gas chromatograph which the regulations in Rowell did not contain. Finally, the regulations concerning the preservation of the blood sample are no different in this case than the insufficient regulations in Rowell.

The procedures used by the crime lab are somewhat better than the regulations in Rowell but they do not substantially improve upon the areas which the Supreme Court found deficient. If the regulations are insufficient to insure the integrity and reliability of the blood alcohol analysis, then the results of such analysis should not be admitted at the trial where intoxication is an element of the crime. The State through the Department of Public Safety has the authorization and obligation to establish regulations that will insure the integrity of the results. Unless the tests are performed pursuant to regulations promulgated by Department of Public Safety which adequately insure the integrity and reliability of the results the state cannot avail itself of the statutory presumptions of intoxication found in LSA-R.S. 32:662. LSA-R.S. 32:663; State v. Morrison, 392 So.2d 1037 (La.1980); State v. Rowell, supra.

Even if the crime lab procedure here followed were adequate to satisfy the deficiencies of the procedures found in Ro-well, they could not supplement the defective regulations because they were not adopted and promulgated by the Department of Public Safety as required by LSA-R.S. 32:663.

The wrongful introduction of a chemical test results, which by law presumes a defendant to be intoxicated, is so prejudicial to the defendant that a resulting conviction cannot stand even if there is other evidence of intoxication. State v. Tanner, 457 So.2d 1172 (La.1984); State v. Rowell, supra; State v. Hill, 531 So.2d 463 (La.1988). As in Rowell, this decision does not entail a finding that there was an insufficiency of evidence to convict defendant, but only that the admission of the gas chromatography test results was erroneous. Therefore, the defendant may be retried on the responsive charge of negligent homicide or any other charge which may be validly asserted against him in accordance with law. State v. Morrison, supra; State v. Rowell, supra.

For the foregoing reasons, the defendant’s conviction and sentence are reversed and the case is remanded to the district court for a new trial in accordance with law.

HIGHTOWER, J., dissents and assigns written reasons.

HIGHTOWER, Judge,

dissenting.

I respectfully dissent.

LSA-R.S. 14:32.1 provides, in pertinent part, as follows:

A. Vehicular homicide is the killing of a human being caused proximately or caused directly by an offender engaged in the operation of, or in actual physical control of, any motor vehicle, aircraft, vessel, or other means of conveyance whether or not the offender had the intent to cause death or great bodily harm whenever any of the following conditions exists:
(1) The offender is under the influence of alcoholic beverages as determined by chemical tests administered under the provisions of R.S. 32:662.
(2) The offender’s blood alcohol concentration is 0.10 percent or more by weight based upon grams of alcohol per one hundred cubic centimeters of blood.

R.S. 32:662, mentioned in Subsection 1 above, provides that when chemical tests for suspected intoxication are conducted in accordance with the provisions of R.S. 32:662, et seq., certain statutory presumptions arise, e.g., “[i]f there was ... 0.10 percent or more by weight of alcohol in the person’s blood, it shall be presumed that the person was under the influence of alcoholic beverages.” Subsection 2 above, however, makes no mention of “intoxication,” R.S. 32:662 or any other Title 32 provisions.

Thus, an evaluation of the two separate sections of R.S. 14:32.1 reveals that, if all other requisite elements of vehicular homicide are proven, one may be convicted either when the presumption of intoxication is properly established under R.S. 32:662, or when the fact of a blood alcohol concentration of at least 0.10 percent is proven.

The majority correctly states that LSA-R.S. 32:663 prohibits the state’s use of the presumption of intoxication unless the tests utilized in determining blood alcohol content are performed pursuant to regulations which are promulgated by the Department of Public Safety. Likewise, in State v. Rowell, 517 So.2d 799 (La.1988), the Louisiana Supreme Court found the then existing regulations insufficient to insure reliability.

In Rowell, which concerned a DWI prosecution, the court was confronted, however, with a situation involving the employment of blood test results to establish the presumption. The court clearly addressed only that scenario, stating:

In order for the state to avail itself of the statutory presumption of the defendant’s intoxication arising from a chemical analysis of his blood under La. R.S. 32:662, it must show that the state has promulgated detailed procedures which will insure the integrity and reliability of the chemical test, including provisions for repair, maintenance, inspection, cleaning, certification, and chemical accuracy.

517 So.2d 799, 800 (emphasis added).

In State v. Tanner, 457 So.2d 1172 (La.1984), the Supreme Court held that the results of a breath analysis test were inadmissible in a negligent homicide prosecution because the state failed to prove maintenance regulations were sufficient to insure test accuracy. As in Rowell, supra, the court said:

In a criminal prosecution, before the state may avail itself of the statutory presumption of defendant’s intoxication, arising from chemical analysis of his blood, without violation of his constitutional due process guarantee of a fair trial, it must show that the state has promulgated detailed procedures which will insure the integrity and reliability of the chemical test....

457 So.2d 1172, 1175 (emphasis added).

The limited scope of Rowell, supra, in excluding test results only when the state seeks to “avail itself” of the statutory presumption, is illustrated in State v. Berluchaux, 522 So.2d 600 (La.App. 1st Cir.1988), writ. denied, 531 So.2d 467 (La.1988). There, the defendant was charged with DWI, fourth offense. Blood test results were introduced at trial despite the state’s acknowledgment that sufficient requirements insuring reliability had not been fulfilled and that under Rowell, supra, it was not entitled to the benefit of the statutory presumption. The First Circuit held that the test results had been properly admitted, explaining that the presumption and admissibility were two distinct issues. While the state could not avail itself of the presumption, the blood analysis was appropriately used by the state to prove another basis of DWI, i.e., the “operator’s blood alcohol concentration is 0.10 percent or more by weight based on grams of alcohol per 100 cubic centimeters of blood.” See LSA-R.S. 14:98 A(2). Once admitted, the trier of fact had to ascertain the amount of weight to accord the test results in deciding whether the state had proven that element of the crime.

Similarly, in the case at bar, the state clearly could not avail itself of the statutory presumption under Title 32. Accordingly, a conviction predicated on LSA-R.S. 14:32.1 A(l) would not stand. However, the record establishes that the conviction here was not sought, and did not arise, under that provision.

At the beginning of the trial, following a bench conference requested by the state, the trial judge read the vehicular homicide statute to the jury, mentioning only Subsection 2. Likewise, in his charge to the jury, the judge only instructed the panel concerning subsection 2. He did not mention the statutory presumption in any manner. Finally, neither the state’s opening nor closing argument contained any reference to the presumption.

Rather than rely on the statutory presumption of intoxication (R.S. 14:32.1 A, Subsection 1), the state sought to prove the fact of defendant’s blood alcohol concentration at 0.10 percent or more (R.S. 14:32.1 A, Subsection 2). Aided by no presumption, that fact had to be established beyond a reasonable doubt, just as all other elements of the crime. As in Berluchaux, supra, the blood test results were admissible for that purpose, and defendant was afforded the opportunity to impugn their reliability and diminish the weight to be accorded them through cross-examination and through his own case.

Finally, even if the test results established, to the jury’s satisfaction, an illegally elevated blood alcohol concentration, defendant’s guilt of vehicular homicide did not conclusively arise. The state also was required to prove all of the following: 1) the killing of a human being; 2) caused directly or proximately by; 3) defendant’s operation of a motor vehicle while the concentration existed.

The majority correctly states that Tanner, supra; Rowell, supra; and State v. Hill, 531 So.2d 463 (La.1988), hold that the erroneous introduction of chemical test results is so prejudicial that a conviction cannot stand even if there is other evidence of intoxication. In the case sub judice, however, we are not concerned with proof of intoxication, presumed or otherwise. Rather, as previously emphasized, we are concerned with use of test results to prove simply, as a single element, that defendant’s blood alcohol concentration was at least 0.10 percent, as set out in LSA-R.S. 14:32.1 A(2).

For the foregoing reasons, I do not view the denial of defendant’s motion to suppress as grounds for reversal.

ON APPLICATION FOR REHEARING

Before JASPER E. JONES, NORRIS, HIGHTOWER, HALL and LINDSAY, JJ.

Rehearing denied. 
      
      . The Department of Public Safety has promulgated new regulations concerning the analysis of blood in LAC 55:1 Chapter 5, § 551 et seq which became effective June 20, 1988. These regulations were adopted in response to State v. Rowell, 517 So.2d 799 (La.1988), and were not in effect at the time of this incident.
     