The U.S. Supreme Court has dealt a blow to the infamous paper witness.  Paper is impossible to cross-examine, so when paper documents are legislated admissible in court it is burden shifting and requires the Defense to hire an expert to rebut the paper witness.  It is unclear how far Georgia Courts will allow this case precedent to spread but it appears that certainly Georgia DUI crime lab reports, Georgia DUI certificates of inspection of state breath tests, and possible the dreaded Georgia DUI Intoxilyzer 5000 breath strip and infamous source code may be in jeopardy, but what do I know I'm just an Atlanta DUI lawyer.

MELENDEZ-DIAZ v. MASSACHUSETTS

certiorari to the appeals court of massachusetts

At petitioner’s state-court drug trial, the prosecution introduced certificates of state laboratory analysts stating that material seized by police and connected to petitioner was cocaine of a certain quantity. As required by Massachusetts law, the certificates were sworn to before a notary public and were submitted as prima facie evidence of what they asserted. Petitioner objected, asserting that Crawford v. Washington, 541 U. S. 36 , required the analysts to testify in person. The trial court disagreed, the certificates were admitted, and petitioner was convicted. The Massachusetts Appeals Court affirmed, rejecting petitioner’s claim that the certificates’ admission violated the Sixth Amendment .

Held: The admission of the certificates violated petitioner’s Sixth Amendment right to confront the witnesses against him. Pp. 3–23.

    (a)  Under Crawford, a witness’s testimony against a defendant is inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination. 541 U. S., at 54. The certificates here are affidavits, which fall within the “core class of testimonial statements” covered by the Confrontation Clause, id., at 51. They asserted that the substance found in petitioner’s possession was, as the prosecution claimed, cocaine of a certain weight—the precise testimony the analysts would be expected to provide if called at trial. Not only were the certificates made, as Crawford required for testimonial statements, “under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,” id., at 52, but under the relevant Massachusetts law their sole purpose was to provide prima facie evidence of the substance’s composition, quality, and net weight. Petitioner was entitled to “be confronted with” the persons giving this testimony at trial. Id., at 54. Pp. 3–5.

    (b) The arguments advanced to avoid this rather straightforward application of Crawford are rejected. Respondent’s claim that the analysts are not subject to confrontation because they are not “accusatory” witnesses finds no support in the Sixth Amendment ’s text or in this Court’s case law. The affiants’ testimonial statements were not “nearly contemporaneous” with their observations, nor, if they had been, would that fact alter the statements’ testimonial character. There is no support for the proposition that witnesses who testify regarding facts other than those observed at the crime scene are exempt from confrontation. The absence of interrogation is irrelevant; a witness who volunteers his testimony is no less a witness for Sixth Amendment purposes. The affidavits do not qualify as traditional official or business records. The argument that the analysts should not be subject to confrontation because their statements result from neutral scientific testing is little more than an invitation to return to the since-overruled decision in Ohio v. Roberts, 448 U. S. 56 , which held that evidence with “particularized guarantees of trustworthiness” was admissible without confrontation. Petitioner’s power to subpoena the analysts is no substitute for the right of confrontation. Finally, the requirements of the Confrontation Clause may not be relaxed because they make the prosecution’s task burdensome. In any event, the practice in many States already accords with today’s decision, and the serious disruption predicted by respondent and the dissent has not materialized. Pp. 5–23.

69 Mass. App. 1114, 870 N. E. 2d 676, reversed and remanded.

    Scalia, J., delivered the opinion of the Court, in which Stevens, Souter, Thomas, and Ginsburg, JJ., joined. Thomas, J., filed a concurring opinion. Kennedy, J., filed a dissenting opinion, in which Roberts, C. J., and Breyer and Alito, JJ., joined.

Williams v. State, A09A0836, April 23, 2009, the Georgia Court of Appeals suppressed a the blood result of a Defendant to whom he did not read implied consent.  This is really of no surprise as it has been clear and undisputed law that in order for a state administered chemical test could be admitted into evidence a DUI suspect must be read implied consent rights. 

Implied Consent rights read as follows: "Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your Georgia driver's license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial. If you submit to testing and the results indicate an alcohol concentration of 0.08 [0.02 for drivers under 21 and 0.04 for commercial truck drivers] grams or more, your Georgia driver's license or privilege to drive on the highways of this state may be suspended for a minimum period of one year. After first submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state administered chemical tests of your (designate which tests) under the implied consent law?"

In summary, you have the right to refuse but you will have your license suspended, you have a right to an additional test if you submit to their test, if you have a blood alcohol content over the legal limit you may lose your license for a year.

The State argued that Implied Consent was not necessary.  The State cited a 2006 amendment to OCGA 40-5-67.1 which provides that nothing in the implied consent statute "shall be deemed to preclude the acquisition or admission of evidence of a violation of [Georgia DUI laws] if obtained by voluntary consent or a search warrant as authorized by the Constitution or laws of this state of the United States. " [emphasis added]. 

The DUI Police officer had asked Williams for a blood test and he agreed. The Court found that this amendment did not apply to the Williams case because the arrest pre-dated the amendment to the statute and this was a substantive change in the law. 

In Wade v. State, A08A1647, DUI, Similar Transactions, the Georgia Court of Appeals essentially admits that similar transaction evidence in DUI cases is bad law.  Georgia is the only state in the union that allows similar transaction evidence to come in as evidence of "bent of mind" which is just another way of saying bad character evidence.  In DUI cases, Bent of Mind is typically the only reason evidence of prior DUIs ever is presented to the jury.  Georgia law has always recognized the long standing principle in non-DUI contexts and the Wade court said, "that evidence of an independent offense or act committed by the accused is highly and inherently prejudicial, raising as it does, an inference that an accused who acted in a certain manner on one occasion is likely to have acted in the same or similar manner on another occasion and thereby putting the accused character in evidence."

The Wade Court further found that no proper purpose exists to support the admission of a prior DUI offense as it does not tend to prove intent, identity, motive, plan, scheme, but rather to introduce evidence of the defendant’s bad character. As DUI is not a crime of specific intent, criminal intent in a DUI case does not mean an intention to violate the law or to violate a penal statute, but means simply to intend to commit the act which is prohibited by a statute. Howard v. State, 222 Ga. 525 (1966); Kennedy v. State, 46 Ga. App. 42 (1932); Balark v. State, 81 Ga. App. 649 (1950). DUI is a strict liability offense like speeding. Therefore, intent is not at issue.  Identity is rarely at issue. Bent of mind is simply another word for evidence of bad character of an independent crime or act.  Therefore, in weighing probative value versus prejudice which is the trial court's only job in admitting similar transaction evidence, the probative value of similar DUIs is acutely if not fatally diminished.

Accepting bent of mind as a basis for a DUI similar transaction may vary well violate the fundamental due process rights of a defendant in the nature of his right to a fair trial under both the U.S. and Georgia Constitutions.

The Court of Appeals in Wade, supra, indicated that it agreed that bent of mind and course of conduct as a basis for a DUI similar transaction are fatally flawed but felt constrained to rule that it was allowable based on the Supreme Court holdings in Pecina v. State, 274 Ga. 416 (2001), Cunningham v. State, 255 Ga. 35,37(1985); Tam v. State 232 Ga. App. 15, 15-16(1998).

We can only hope the Georgia Supreme Court or the Georgia Legislature will hear the crys of Judges Blackburn, Miller and Ellington and justice will roll down like water.

In Holowiak v. State, A08A1872, the Court of Appeals refused to address the Intox 5000 source code in an appeal from the State Court of Cherokee County in Canton, Georgia. Mr. Holowiak, who was stopped at a roadblock in Cherokee County, challenged the "propriety of the roadblock and test results from the Intoxilyzer 5000 machine that used his breath to measure his BAC."  The Court held a hearing on Holowiak's motion to suppress and produce [the Intoxilzyer 5000 computer source code].  The motions were denied by the trial court in Cherokee County State Court.  An interlocatory appeal was granted.  Holowiak enumerated as error the Cherokee County Trial Court's failure to find that the computer source code for the Intoxilyzer 5000 machine used to test Holowiak's BAC was "necessary, material and relevant," so that Holowiak could procure this evidence by means of a subpoena.  Holowiak filed a Petition for Certification of Materiality of Testimony from an Out of State Witness four months before the hearing in the Canton, Georgia Trial Court.

The Court of Appeals found that Holowiak had not reserved the issue for appeal because he did not bring the issue up at the Trial Court level in Cherokee County.  The Court of Appeals split hairs on the issue that the Petition filed was for relevance and materiality of the out of state witness who was to testify on the source code and the relevance and materiality of the source code itself was not requested.  Therefore, the Court of Appeals refused to rule on the issue of the relevance of the source code.  This issue remains unresolved.

The Court of Appeals then curiously commented that Holowiak did not raise the issue of the Cherokee County State Court's ruling that source code was not a scientific report, but "even if he had" Holowiak did not carry his prima facie burden (when did criminal defendants get a burden to prove anything except affirmative defenses?) that the State possessed or controlled the Intoxilyzer 5000 Source Code so he would have lost anyway.

This ruling is curious in three respects.

1) Why would Holowiak appeal a ruling of the trial court he believed was correct?

2) Source Code is clearly not a scientific report under O.C.G.A. 17-[1]6-23.  O.C.G.A. 17-16-23 provides in pertinent part,

(a) As used in this Code section, the term “written scientific reports” includes, but is not limited to, reports from the Division of Forensic Sciences of the Georgia Bureau of Investigation; an autopsy report by the coroner of a county or by a private pathologist; blood alcohol test results done by a law enforcement agency or a private physician; and similar types of reports that would be used as scientific evidence by the prosecution in its case-in-chief or in rebuttal against the defendant.

Clearly, source code does not fall into any of these categories. If the source code is not a scientific report, it does not matter if the source code is in the possession or control of the prosecutor because the "full information" provisions of OCGA 40-6-392(a)(4) do not require "possession or control" and are outside and separate from the discovery statutes.

3) If they are scientific reports, then possession and control does not end the inquiry. O.C.G.A. 17-16-23(c) provides, "If the scientific report is in the possession of or available to the prosecuting attorney" they must be provided within 10 days of trial.  CMI of Kentucky, Inc. which manufactures the Intoxilzyer 5000 has made judicial admissions in sworn and verified legal filings that, "CMI further affirmatively asserts and alleges that in or about September 2007, CMI voluntarily changed its policy regarding the availability and has thereafter offered to produce the source code in response to a valid court order, subject to an appropriate Non-Disclosure Agreement and Protective Order that will protect CMI’s valuable proprietary trade secrets. State of Minnesota et al v. CMI of Kentucky, Para. 21, Case No. 08-cv-603, United States District Court, District of Minnesota, April 9, 2008.  Obtaining the source code with a simple Non-Disclosure Agreement is "available."   

This is curious.  These issue are far from resolved.  

The Georgia Court of Appeals has turn DUI probable cause analysis upside down with the new case of Handley v. State, A08A1577, decided October 24, 2008.  Probable Cause is what is required to arrest someone for a crime.  It is a very low standard. Frequently referred to as the speed bump on the road to justice.  It is the opposite of a reasonable doubt.  In the past the Court of Appeals has found that anything from odor of alcohol to an actual act of less safe driving is required to find probable cause basically up holding the trial court's discretion on an any evidence standard or right for any reason.  In a situation, when facts are undisputed, the Court of Appeals can judge the evidence against the legal standard as a trial court would which is called "de novo" review.  That is what happened in the Handley case.  It is remarkable because it has previously been thought that a trial court had pretty much unrestrained discretion to find probable cause to arrest for DUI, less safe or not.  Now that has changed.

In Handley, the Athens-Clarke County Sheriff's Deputy pulled over the driver for no tag, smelled alcohol, got the driver to admit to drinking, and administered a positive or negative portable breath test which registered positive. That is it.  He arrested the driver for DUI.  She tested over the legal limit at the jail on the Intoxilyzer 5000.  The Georgia Court of Appeals held that is not enough.  Odor, admission of drinking and a positive alcosensor is not enough to establish probable cause for a DUI arrest as a matter of law.  This becomes the new base line in DUI arrests.  So no moving violation, odor, positive portable breath test and your Atlanta or Georgia DUI should be dismissed in court if there are no other indicators of DUI driving.  

 McWilliams v. State
A07A1820 (criminal case)
September 18, 2007
Blackburn, Presiding Judge.
07 FCDR 2978 (10/05/07)

In McWilliams v. State, the Georgia Court of Appeals held that the following charge was acceptable: " I charge you that it is not necessary for the State to show that the accused was drunk. It is sufficient if the State showed beyond a reasonable doubt that the accused was under the influence [of] alcohol to the extent that it was less safe for him to drive a car than it would have been if he were not so affected, whether drunk or not. "  The Court also held that defining "less safe" as " under the influence of alcohol to the extent that he was less safe to do so than he would have been if sober."  So If less safe is not drunk and not sober, what is it?  Apparently, one must be "influenced" by alcohol.  The Court defined "Sober" as follows: sober means simply that one is not under the influence of intoxicants, whether because one has ingested no intoxicants or because the amount of intoxicants ingested is so moderate that one is not influenced by them.   The Court concluded that this was not confusing to the jury.   So that way they call it driving under the influence, so what does "influenced" mean again? Is that different from "impaired"? It must be or they would call it Driving While Impaired?  The Court finally cleared it up with the following charge, "a driver may be convicted of driving under the influence if they have consumed enough intoxicants to make it less safe for them to operate a vehicle than it would be if they were not so affected."  Driving While Affected?  

Massa v. State
A07A1019 (criminal case)
September 11, 2007
Johnson, Presiding Judge.
07 FCDR 2871 (09/28/07)

In this DeKalb DUI arrest, the Defendant was parked off the side of the road and refused both field test and breath test. The Georgia Court of Appeals held that a defendant’s refusal to submit to field sobriety tests is admissible as circumstantial evidence of intoxication and together with other evidence would support an inference that he was impaired drive.  How are field tests voluntary if they can use them against you?  The answer of course is that they are not.  What is an innocent person supposed to do?  Never take the HGN.  If you are capable of performing field evaluation like standing on one leg and/or walking a line, it might be worth trying.  Juries typically will not convict a person that can stand on one leg for thirty seconds.  Field Evaluations are divided attention tests and measure your ability to follow instructions and perform physical dexterity exercises.