(CN) – In a drunken driving trial, New Mexico violated a man’s constitutional right to confront his accuser by failing to call the scientist who certified the blood alcohol concentration report, the Supreme Court ruled Thursday.
David Bullcoming was charged in 2005 with aggravated driving while intoxicated, a more serious crime than regular DWI, because a forensic analyst named Curtis Caylor recorded Bullcoming’s BAC at the “inordinately high level” of 0.21.
Prior to having his blood drawn, Bullcoming allegedly rear-ended another truck and fled the scene when that truck’s driver noticed his bloodshot eyes and called the police. Bullcoming failed a field-sobriety test and refused to blow into a breathalyzer.
New Mexico submitted the BAC report as evidence in Bullcoming’s trial, and then called an analyst to testify who was merely familiar with the lab’s testing procedures but did not witness or participate in the test.
On the day of trial, prosecutors revealed that Caylor, the analyst who measured Bullcoming’s BAC, “had very recently [been] put on unpaid leave,” and they would call a different analyst. Over the objections of Bullcoming’s attorney who said she may have crafted an entirely different opening and defense, the trial judge let the case proceed.
After a jury convicted Bullcoming, both the state Court of Appeals and Supreme Court upheld the conviction and declined to find a constitutional violation in the state’s use of another witness.
On Thursday, the U.S. Supreme Court pointed to its 2009 decision in Melendez-Diaz v. Massachusetts, which held that it was unconstitutional for prosecutors introduce forensic evidence that certified a substance as cocaine without offering a live witness to testify about the truthfulness of the report.
“Our answer is in line with controlling precedent: As a rule, if an out-of-court statement is testimonial in nature, it may not be introduced against the accused at trial unless the witness who made the statement is unavailable and the accused has had a prior opportunity to confront that witness,” Justice Ruth Bader Ginsburg wrote for the majority.
New Mexico never claimed that Caylor, the original analyst, was unavailable to testify, just that he was unpaid leave for undisclosed reasons, the ruling states. Furthermore, the “factual” nature of BAC test results still leaves room for human error.
“Most witnesses, after all, testify to their observations of factual conditions or events, e.g., ‘the light was green’ ‘the hour was noon,'” Ginsburg wrote. “Such witnesses may record, on the spot, what they observed. Suppose a police report recorded an objective fact – Bullcoming’s counsel posited the address above the front door of a house or the read-out of a radar gun. Could an officer other than the one who saw the number on the house or gun present the information in court – so long as that officer was equipped to testify about any technology the observing officer deployed and the police department’s standard operating procedures? As our precedent makes plain, the answer is emphatically ‘No.'”
Ginsburg did not join in part IV of the lead opinion or in a footnote in an earlier section that defines testimonial statements. Those sections also met challenges by the remaining members of the majority, except for Justice Antonin Scalia who joined in full.
Part IV explains that satisfying the confrontation clause does not impose an undue burden on prosecutors.
This section contrasts with the close of Justice Anthony Kennedy’s dissent, which notes that a surge in impaired-driving cases in New Mexico has left the state’s small forensic team in tatters.
“From 2008 to 2010, subpoenas requiring New Mexico analysts to testify in impaired-driving cases rose 71%, to 1,600 – or 8 or 9 every workday,” Kennedy wrote. “In a State that is the Nation’s fifth largest by area and that employs just 10 total analysts, each analyst in blood alcohol cases recently received 200 subpoenas per year. The analysts now must travel great distances on most working days. The result has been, in the laboratory’s words, ‘chaotic.’ And if the defense raises an objection and the analyst is tied up in another court proceeding; or on leave; or absent; or delayed in transit; or no longer employed; or ill; or no longer living, the defense gets a windfall. As a result, good defense attorneys will object in ever-greater numbers to a prosecution failure or inability to produce laboratory analysts at trial. The concomitant increases in subpoenas will further impede the state laboratory’s ability to keep pace with its obligations. Scarce state resources could be committed to other urgent needs in the criminal justice system.
Chief Justice John Roberts, Justice Stephen Breyer and Justice Samuel Alito joined in the dissent, which calls the majority’s holding a “new and serious misstep.”
“Here a knowledgeable representative of the laboratory was present to testify and to explain the lab’s processes and the details of the report; but because he was not the analyst who filled out part of the form and transcribed onto it the test result from a machine printout, the Court finds a confrontation violation,” Kennedy wrote.
“The procedures followed here, but now invalidated by the Court, make live testimony rather than the ‘solemnity’ of a document the primary reason to credit the laboratory’s scientific results,” he added. “Unlike Melendez-Diaz, where the jury was asked to credit a laboratory’s findings based solely on documents that were ‘quite plainly affidavits,’ here the signature, heading, or legend on the document were routine authentication elements for a report that would be assessed and explained by in-court testimony subject to full cross-examination. The only sworn statement at issue was that of the witness who was present and who testified.
“The record reveals that the certifying analyst’s role here was no greater than that of anyone else in the chain of custody. The information contained in the report was the result of a scientific process comprising multiple participants’ acts, each with its own evidentiary significance. These acts included receipt of the sample at the laboratory; recording its receipt; storing it; placing the sample into the testing device; transposing the printout of the results of the test onto the report; and review of the results.”
Justice Sonia Sotomayor, who joined the decision except as to Part IV, authored a separate concurring opinion to bolster the argument that the BAC report was testimonial and to “emphasize the limited reach of the Court’s opinion.”