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No Bull. The Supremes are serious about Confrontation in DUI Blood Test Case

BULLCOMING v. NEW MEXICO, No. 09–10876, Supreme Court of the United States, Argued March 2, 2011—Decided June 23, 2011

Failure to have a lab analyst in court to testify about a state-administered test of the Defendant’s blood in a DUI case no matter how mundane the task is a violation of the Confrontation Clause. The Sixth Amendment’s Confrontation Clause gives the accused “[in] all criminal prosecutions,…the right…to be confronted with the witnesses against him.” In Crawford v. Washington, 541 U.S. 36, 59, the U.S. Supreme Court held that the Confrontation Clause permits the admission of “testimonial statements of witnesses absent from trial…only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” Later, in Melendez-Diaz v. Massachusetts, 557 U.S. ___, the Court declined to create a “forensic evidence” exception to Crawford, holding that a forensic laboratory report, created specifically as evidence in a criminal proceeding, ranked as a testimonial and subject to the Confrontation Clause.

The DUI Blood test in Bullcoming’s jury trial was tested by a forensic analyst who was not present at trial because he had been put on unpaid leave. The state called a witness to validate the report named Razatos who had no personal knowledge of the text itself but was an expert on the subject matter of the test and knew the procedures of the crime lab. The test was admitted as a business record over Bullcoming’s objection as to hearsay and lack of confrontation. The Supreme Court found that the Confrontation Clause does not permit the State to admit into evidence a forensic laboratory report containing the testimonial certification, made to prove a fact at a criminal trial, through the in-court testimony of an analyst who did not sign the certification or personally perform or observe the performance of the test reported in the certification.

The Certification reported more than a machine-generated number it represented that the blood sample was received with its seal unbroken, that the forensic report number and sample number corresponded, a particular test was performed on the sample, adhering to a strict laboratory protocol, and no circumstance or condition affected the sample’s integrity or the analysis validity. All of these issues are met for cross-examination under the Confrontation Clause no matter how mundane. To hold otherwise would allow a police officer certified as an expert in speed detection to testify as to the speed seen by another officer on radar or laser gun not present in court and this is not allowed by the Confrontation Clause. The Confrontation Clause can not be satisfied by a fair opportunity for cross-examination. The documentation is a testimonial as it was created solely for an “evidentiary purpose” then the report is a testimonial. Even though the certification was not notarized it is testimonial because it references the municipal court and magistrate court rules.

If it was notarized it would be even more testimonial. Reference Georgia’s certificates of calibration of the State Administered DUI breath test on the Intoxilyzer 5000 which are made for use at trial and are formatted as an affidavit, sworn under oath and notarized, which have been previously held by Georgia Courts as “non-testimonial” as they are not made for a particular defendant but for a machine that tests many defendants.

Is Rackoff v. State, 275 Ga.App. 205*205 737, 621 S.E.2d 841, 845 (2005), aff’d, 281 Ga. 306, 637 S.E.2d 706 (2006) (inspection certificate of instrument used to conduct defendant’s breath test was not “testimonial” hearsay under Crawford)) ready for a reversal? Are these cases from other states ready for a reversal?

Green v. DeMarco, 11 Misc.3d 451, 812 N.Y.S.2d 772, 785 (N.Y.Sup.Ct.2005) (admission of documentary evidence to establish a foundation for the admissibility of breath test results does not implicate core concerns of Confrontation Clause as interpreted by Crawford);

State v. Carter, 326 Mont. 427, 114 P.3d 1001, 1007 (2005) (defendant’s confrontation right was not implicated by the use of certification reports to demonstrate that Intoxilyzer 5000 was working properly, even though authors of the reports were not present to testify and be confronted);

State v. Norman, 203 Or.App. 1, 125 P.3d 15, 16-17 & 20 (2005) (admission into evidence of certificates reflecting that Intoxilyzer 5000 had been tested for accuracy, without oral testimony of technicians who prepared them, did not violate defendant’s Sixth Amendment confrontation right); 

Luginbyhl v. Commonwealth, 46 Va.App. 460, 618 S.E.2d 347, 355 (2005) (statements in breath test certificate relating to machine’s good working order and the administering officer’s qualifications were not testimonial statements);

Napier v. State, 820 N.E.2d 144, 145 & 149 (Ind.Ct.App.2005) (admission of breath test instrument certification documents indicating that inspection and tests were performed on the machine on a specified date did not violate rule set forth in Crawford); 

Rackoff v. State, 275 Ga.App. 205*205 737, 621 S.E.2d 841, 845 (2005), aff’d, 281 Ga. 306, 637 S.E.2d 706 (2006) (inspection certificate of instrument used to conduct defendant’s breath test was not “testimonial” hearsay under Crawford);

State v. Godshalk, 381 N.J.Super. 326, 885 A.2d 969, 972-73 (Law Div.2005) (breath testing instrument inspection certificates, not within the “testimonial evidence” category of Crawford because they are business records and official records of the state police); 

Bohsancurt v. Eisenberg, 212 Ariz. 182, 129 P.3d 471, 472 & 480 (Ct. App. 2006) (quality assurance records of Intoxilyzer 5000 used to test defendant’s breath sample qualify as business records and are not testimonial under Crawford);

but see Shiver v. State, 900 So.2d 615 (Fla.Dist.Ct.App. 2005).

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