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Monday, June 27, 2011
By Michael Nichols
The lab technician who tried to detect and measure the amount of alcohol in your blood must be present at court or your-constitutional-rights-are-violated. “The-Supreme-Court-of-the-United-States-has-spoken-and-spoke-loudly,” said Lansing-DUI-OWI-OUIL-expert-attorney-Mike-Nichols. Nichols-added, “The-Supreme-Court-held-that-the-lab-technician-who-actually-conducted-the-analysis-must-be-presented-at-trial-by-the-government. If-the-analyst-who-actually-authored-the-report-is-not-called-to-trial-the-report-is-not-admissible.”
The case involved a man charged with a crime in New Mexico called “aggravated-DUI” because he fled the scene of an accident and was arrested later, allegedly while drunk. His alleged blood was analyzed for an alcohol content estimate. Prior to trial, the analyst who actually conducted the analysis and wrote the report was placed on unpaid administrative leave. “The-government-called-a-supervisor-at-the-lab-as-a-surrogate,” said Nichols. “The-vital-piece-of-this-opinion-is-that-the-supreme-court-said-that-there-are-no-surrogates-for-the-witness-who-authored-the-report,” Nichols added.
The court also held that the report analyzing the accused citizen’s blood is “testimonial” for purposes of the confrontation clause of the 6th Amendment to the United States Constitution. Nichols said “the 6th Amendment of the Constitution requires the government to call live witnesses, who must swear an oath and testify before the jury. The Amendment is designed to avoid problems such as those which existed in England and lead to the conviction of Sir Walter Raleigh; it also lead to the death of women in colonial America who were burned at the stake for witchcraft – all without live testimony but letters and out of court accusations that the jury was never allowed to hear or see.”
The case is called Bullcoming v New Mexico. It was decided Thursday June 23, 2011. It is an extension of the principle of a prior 2009 case called “Melendez-Diaz v Massachusetts.” It means that the lab analysis is a testimonial document and the author of the document must be the one who testifies at trial or else the document is not admissible. These cases are part of the ongoing protection of the citizens of the United States from convictions by statements or documents that are not tested through live appearance under oath before a jury and subject to cross examination by the lawyer for the accused. It is one way street: the government is not entitled to confrontation. Typical hearsay rules apply, but not constitutional safeguards.
“I-found-it-interesting-that-the-court-used-prior-opinions-that-seemed-to-narrow-the-confrontation-right-to-advance-it-in-this-case. For example, the court held that the primary purpose test of a statement meant that the lab record here was defined as ‘testimonial’ because its primary purpose was to generate evidence in an OWI trial,” Nichols said.
Mike Nichols is an OWI expert, adjunct law professor and author of
The Michigan OWI Handbook by Thomson Reuters West Publishing. His office is based in Lansing. He is available to take your call at 517.432.9000 or respond to your e-mail at
mnichols@nicholslaw.net. Call today.