In Rackoff v. State, the Georgia Supreme Court held that breath test calibration certificates did not violate the U.S. Supreme Court Crawford Decision regarding  the consitutional right to confrontation because they are not made for a particular Defendant, and therefore, are not testimonial and not covered by the right to confrontation.  This raises an interesting issue.  If calibration certificates are not testimonial, what about GBI Blood Test Reports signed by forensic toxicologist but done by GBI lab techs who are not in court.  A blood test is made for one Defendant.  I love the smell of Crawford in the morning, it smells like... Consitution.  The Following is a brief excerpt on the subject:

RIGHT TO CONFRONTATION

DEFENDANT’S SIXTH AMENDMENT RIGHT UNDER THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION I PARAGRAPH XIV OF THE CONSTITUTION OF THE STATE OF GEORGIA TO CONFRONT WITNESSES IS DENIED.

The Defendant is denied his right to confrontation because he can not cross examine a piece of paper supposing to establish the blood alcohol concentration of the Defendant. The Official Report is a conclusory report drawn from the work of lab technicians who are not generally present in court nor listed as witnesses. Typically, the toxicologist simply reviews the report and checks its results with regard to the test result information in the computer at the GBI. Further, controls samples for these tests are run once a year by yet another individual who is not present in court. The Defendant is forced to call his own expert to testify to these issues shifting the State’s burden of proving its entire case in chief.

Defendant’s fundamental right to confrontation is a firmly rooted principle in criminal proceedings. The Sixth Amendment to the U.S. Constitution provides that a criminal defendant "shall enjoy the right….to be confronted with the witnesses against him…" Likewise, the Georgia Constitution provides that a criminal defendant "shall be confronted with the witnesses testifying against such a person." Art. I, Sec. I, Paragraph XIV. The State, citing Brown v. State, 268 Ga. 76 (1997), contends that GBI blood test reports are admissible under the "firmly rooted hearsay exception for business records." However, in Crawford v. Washington, 541 U.S. 36, 53, 124 S.Ct. 1354, 1365 (2004), the Supreme Court of the United States held that an out-of-court statement that is "testimonial" in nature is inadmissible in criminal prosecutions, under the Confrontation Clause, unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness, regardless of whether such statement is deemed reliable by the court. Though the Court declined to provide a complete definition of testimonial evidence, the court provided a partial definition explaining that testimony is: "a solemn declaration or affirmation made for the purpose of establishing or proving some fact." Crawford, supra, at 51, 124 S.Ct. 1364.

Though the Court in Crawford continues to recognize the hearsay exception for business records, in light of the decision in Crawford, these Official Reports should no longer be considered as business exception to the hearsay rule, because they fall completely within the Crawford definition of the testimonial evidence. In Crawford, the U.S. Supreme Court stated, "Various formulations of this core class of "testimonial" statements exist: ‘ex parte in court testimony or its functional equivalent--that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutoriarly." Id. The Supreme Court further stated that the, "involvement of government officers in the production of testimony with an eye towards trial presents a unique potential for prosecutorial abuse… This consideration does not evaporate when testimony happens to fall within some broad, modern hearsay exception, even if that exception might be justifiable in other circumstances." Crawford, supra, at 56, 124 S.Ct. 1367- 1368.

The Official Reports that the State has offered are prepared for use in trial to establish the blood tests. The Official Reports are completely and entirely maintained and prepared by the State. The Forensic Toxicologist was trained by the State. The Blood Testing device is maintained by the State. To say that the State, in the very least, should not have to offer a witness to testify to that the tests were actually done and how they were performed and any irregularities noted clearly denies the Defendant his right to confrontation, because the Defendant can not cross examine either the toxicologist or the official report regarding this information.

It is noted, that neither the Georgia Supreme Court, nor Georgia Appellate Courts have decided the applicability of Crawford decision to blood tests reports from the crime lab. As such, Defendant submits the interpretation from other jurisdictions involving identical issues. In Belvin v. State of Florida, 2005 WL 1336497 (unpublished opinion), a driver, Bruce Belvin, was arrested for driving under the influence. Id. After submitting to a breath test affidavit, the test was administered by a technician, who did not testify at trial. Id. Belvin objected to the introduction of the breath test affidavit, arguing that the admission of the affidavit violated his constitutional right of confrontation under Crawford. The Florida Supreme Court held that breath test affidavit fell squarely in the "core class of testimonial statements" recognized in Crawford. Belvin, supra at 3. The Florida Supreme Court further dismissed the argument that the affidavit was acceptable under the business hearsay exception stating,

"The affidavits are prepared for use at a criminal prosecution. They are pretrial statements expected to be admitted into evidence at trial. As such, they fit under Crawford’s definition of testimonial evidence and are subject to the requirements articulated in Crawford." Belvin, supra at 4.

Still other jurisdictions have relied on Crawford to find that blood and other lab test reports were improperly admitted without the opportunity for cross-examination. See People v. Rogers, 8 A.D.3d 888, 780 N.Y.S.2d 393 (N.Y.App.Div.2004) (holding that a report giving the results of testing on the victim’s blood was improperly admitted as a business record, because since the test was initiated by the prosecution and generated by the desire to discover evidence against the defendant, the results were actually testimonial in nature); City of Las Vegas v. Walsh, 120 Nev. 392, 91 P.3d 591 (Nev.2004) (construing Crawford and holding that the affidavit of a health care professional who withdraws blood from another for analysis by an expert is prepared solely for the prosecution’s use at trial and thus testimonial). See also Napier v. State, 820 N.E.2d 144 (Ind.Ct.App.2005) (holding inter alia that the state’s failure to present any "live" testimony at trial from the law enforcement officer who conducted chemical breath tests on defendant violated the Confrontation Clause, in light of Crawford v. Washington, where the state offered an "evidence ticket" into evidence displaying test results, absent any witness to present this exhibit, and thus, defendant was not only precluded from conducting any cross examination with respect to breath test operator’s qualifications, but he was not afforded opportunity to question or attack test results). Belvin, supra at 5.

The official reports are intended to be admitted into evidence at trial. If the State could not rely on these Official Reports they would have to call a witness to testify about the performance of the tests, the machinery, and the technician’s and statutory qualifications to prove its case in chief. As such, the Official Reports have offered a way around actually proving the State’s case in chief.

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