Caledonia Argus

Attorney questions collection of evidence

Posted: 9/17/02

By Shannon McKinney
Argus News Reporter

A blood sample that would normally have been disposed of seven days after it was drawn was kept in a hospital lab for almost two months without the consent of Joseph Steven Heaney, 24, of Caledonia, according to a witness in an omnibus hearing Thursday, September 5.

If allowed as evidence, the blood plasma sample is one piece of evidence that could be used to show that Heaneyís blood alcohol content was over .10 as tested within two hours of the motor vehicle accident that killed Jesse Worsley, 19, of Caledonia, last November. Worsley was a passenger in a vehicle driven by Heaney, who is facing eight charges related to that accident.

Heaney appeared in court with his attorney, Gregory Schultz, in the continuation of the omnibus hearing of August 16. He is challenging how evidence was obtained. Heaney also faces charges of causing substantial injury to another passenger, Paul Hughes, of Brownsville.

According to the complaint, the one-vehicle accident happened approximately one mile west of Freeburg on CSAH #249 when Heaney, after passing another vehicle, took a corner too sharply at a high rate of speed.

During the course of questioning by Schultz, Gundersen Lutheran medical technologist Liz Matthews explained to the court that blood plasma samples are usually disposed of seven days after being collected. Heaneyís sample, however, was saved for the purpose of testing and comparing old equipment with new equipment. ìWe do it by analyzing samples, old and new,î said Matthews.

Schultz has filed motions to suppress the results of Heaneyís blood plasma, urine sample and medical records because Gundersen Lutheran, he said, was not authorized to release it because it constituted privileged information between patient and physician.

On January 15, Gundersen Lutheran released the blood plasma to Houston County Investigator Gary Eddy after being subpoenaed by the La Crosse District Court. The blood plasma was tested by the Minnesota Bureau of Criminal Apprehension and found to have an alcohol content of .144 percent. The blood plasma was taken at 6:25 a.m. on November 18, 2001, and the test was completed around 7 a.m.

Through questioning, Schultz ascertained that alcohol in blood plasma typically tends to test higher by 10 to 15 percent than in actual blood. Matthews acknowledged that there are documents and scientific papers showing this variance.

During the August 16 omnibus hearing, Edward Stern, BCA forensic scientist, testified that the variance was between 12 and 15%. He also testified that even with that variance, the alcohol content would be over .10.

Also brought to the stand for questioning was Gundersen Lutheran nurse Wendy Puent who testified that Heaneyís urine sample was was taken at approximately 8:00 a.m. and was tested to show a blood alcohol content of .08%.

Questioning by the defense was aimed at determining if the urine sample was contaminated when it was transferred to the collection container.

Loralee Clark of the La Crosse County Attorney Districtís Office testified regarding the procedures by which the subpoena for the medical records and blood sample plasma were obtained.

Schultz has raised the issue on whether it was appropriate for Houston County to cross jurisdictions and subpoena evidence, when normally Minnesota law allows for search warrants. ìThe standards are not the same,î he told The Argus.

Schultz has three weeks after receiving a transcript of the omnibus hearing to file a brief regarding the omnibus issues that were raised, to which Houston County Attorney Rick Jackson will have two weeks to respond. Then the defense will have three days to respond.

District Court Judge James Fabian has 90 days to make a decision on Schultzís omnibus motions after receiving the briefs.

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