Supremes Cause Trouble for DWI Trials

In a 5-4 decision, the Supreme Court today ruled that the Sixth Amendment’s Confrontation Clause requires prosecutors to call the actual lab technician who did a DWI lab test on a defendant’s blood rather than just use another qualified technician to read the report prepared by the lab tech. In Bullcoming v. New Mexico the 5 justices were an unusual mix – Ginsberg (who wrote the opinion), Sotomayor, Scalia, Thomas and Kagan with Kennedy, Alito, Breyer and Roberts in dissent. The issue was whether a report certified for accuracy by a lab technician who tested the defendant’s blood for alcohol content was “testimonial.” Since the majority ruled that it was testimonial, it means that the defendant had a right to cross-examine the lab tech. It was a particularly important right in this case, the Court said, because the lab tech who performed and certified was placed on unpaid leave. Cross examination about his competency or work history could have called the test results into question. The Court also stated that this was not just a test result that could be submitted into evidence, nor was the lab tech who did testify doing so as an expert – in fact the testifier had absolutely no contact with the test’s performance and he was merely reading the test results into the record and describing the test itself. The Court here said that it did not determine whether those situations would produce different results. In this case, the defendant had a right to assess how the tech performed the test and what steps he took to assure its accuracy.

This decision could have far-reaching implications as many jurisdictions use the same methodology for getting test results into evidence. Undoubtedly, many New Mexico defendants probably did not even raise this issue in their trials and just assumed the procedure was constitutional. After all, the State’s highest court ruled that the report could come in as it was not sufficiently testimonial to invoke the Confrontation Clause. Not many people would have thought that a simple DWI case could end up all the way to the Supremes. Kudos to the legal team that pursued this case all the way to the end to get this result.

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